State v. Sims

[Cite as State v. Sims, 2021-Ohio-4009.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109335
:

JERRY SIMS, JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: November 5, 2021

Cuyahoga County Court of Common Pleas
Case No. CR-17-623047-A
Application for Reopening
Motion No. 547770

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Callista Plemel, Assistant Prosecuting
Attorney, for appellee.

Robey and Robey and Gregory Scott Robey, for appellant.

MICHELLE J. SHEEHAN, P.J.:

Applicant, Jerry Sims, Jr., seeks to reopen his appeal in State v. Sims,

8th Dist. Cuyahoga No. 109335, 2021-Ohio-1296. Sims claims that his appellate

attorney was ineffective for failing to raise or properly argue issues surrounding the
admission of other acts evidence, expert testimony, and manifest weight. For the

reasons that follow, we deny the application.

The body of Jamarr Forkland was discovered inside a burning van by

East Cleveland police on October 21, 2017. Sims was identified as a suspect in the

murder of Forkland. On November 8, 2017, Sims was charged with 11 counts,

including aggravated murder. The case proceeded to a jury trial, where Sims was

found guilty of aggravated murder, murder, felonious assault, aggravated arson,

offenses against a human corpse, and having weapons while under disability. He

was sentenced to an aggregate term of life in prison with parole eligibility after 40.5

years.

Sims appealed his convictions and sentence to this court. Appellate

counsel raised seven assignments of error:

I. The state engaged in prosecutorial Misconduct throughout the
course of the trial that deprived [Sims] of his right to a fair trial.

II. The individual and cumulative effect of Defense counsel’s errors
rendered counsel’s performance deficient to the point of being
ineffective, denying [Sims] his constitutional right to effective
assistance of counsel.

III. The trial court erred in permitting the introduction of improper
character evidence in violation of [Evid.R.] 404(a)(1), denying [Sims]
his constitutional right to a fair trial.

IV. The trial court erred failing to recuse himself or in the alternative
secure a valid and knowing agreement violating [Sims’s] right to a fair
trial.

V. [Sims’s] conviction was against the manifest weight of the evidence.
 VI. The state failed to present sufficient evidence to prove each and
every element of the offense beyond a reasonable doubt.

VII. The cumulative effect of the multitude of errors in this case
deprived [Sims] of his constitutionally guaranteed right to a fair trial.

Sims, 8th Dist. Cuyahoga No. 109335, 2021-Ohio-1296, at ¶ 36. This court, on

April 15, 2021, overruled each assignment of error and affirmed Sims’s convictions

and sentences.

On July 8, 2021, Sims timely filed a motion to reopen his appeal,

claiming that appellate counsel was ineffective for not raising or properly arguing

the following three assignments of error:

I. The trial court erred in permitting the admission of other[-]acts
evidence against appellant.

II. The trial counsel was ineffective for failing to present expert
testimony on defendant’s behalf.

III. Appellant’s conviction is against the manifest weight of the
evidence, in view of the lack of credibility and inconsistent testimony of
appellant’s former girlfriend Erica Campbell.

The state timely filed a brief in opposition, arguing that the first and third proposed

assignments of error were, in fact, raised by appellate counsel, and the second

assignment of error was not a valid basis for reopening.

Standard for Reopening

App.R. 26(B) provides a prescribed means for asserting a claim of

ineffective assistance of counsel on appeal. The standard for ineffective assistance

of appellate counsel is the standard applicable to claims of ineffective assistance of

counsel announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), and State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456

(1996). State v. Simpson, Slip Opinion No. 2020-Ohio-6719, ¶ 1. “[C]ourts of

appeals should grant an application for reopening if the defendant shows a genuine

issue as to whether he [or she] has a colorable claim that his appellate counsel’s

performance was deficient and that the deficient performance caused him

prejudice.” Id.

Under that standard, an appellant must show that his appellate
counsel’s performance was deficient and that the deficient performance
prejudiced him [or her]. Appellate counsel’s performance must have
been objectively unreasonable, and there must be a reasonable
probability that the result of the appeal would have been different but
for counsel’s errors. Under Strickland, a reasonable probability is a
probability sufficient to undermine confidence in the outcome of the
proceedings.

(Citations omitted.) Id. at ¶ 14.

Manifest Weight

We will address the last assignment of error first. Appellant claims

that his convictions are against the manifest weight of the evidence.

As we previously stated, when analyzing a claim that a conviction is

against the manifest weight of the evidence, the court

“‘reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The discretionary
power to grant a new trial should be exercised only in the exceptional
case in which the evidence weighs heavily against the conviction.’”
Sims, 8th Dist. Cuyahoga No. 109335, 2021-Ohio-1296, ¶ 41, quoting State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

This assignment of error was raised in the direct appeal, and

therefore, may not form the basis of a successful application for reopening.

“Principles of res judicata prevent the relitigating of issues in an application to

reopen that were previously considered in the direct appeal.” State v. Barnes, 8th

Dist. Cuyahoga Nos. 108857, 108858, and 109321, 2020-Ohio-4988, ¶ 13, citing

State v. Franklin, 72 Ohio St.3d 372, 650 N.E.2d 447 (1995); State v. Lindsey, 8th

Dist. Cuyahoga No. 106111, 2019-Ohio-3358, ¶ 9. App.R. 26(B)(2)(c) requires an

applicant to submit “[o]ne or more assignments of error or arguments in support of

assignments of error that previously were not considered on the merits in the case

by any appellate court or that were considered on an incomplete record because of

appellate counsel’s deficient representation * * *.” The manifest weight argument

was considered on the merits in the direct appeal and Sims does not allege that it

was considered on an incomplete record due to appellate counsel’s representation.

In fact, Sims asserts much of the same arguments in his application to reopen that

were raised in his direct appeal.

First, he claims the testimony of Erica Campbell is unreliable and

contradictory. Campbell testified about events she observed on the day that

Forkland was murdered, including witnessing Sims walking toward a van occupied
by Forkland, hearing gunshots, and then seeing Sims get into her vehicle holding a

gun.

This court found that Campbell’s claimed lack of veracity argued in

the direct appeal was unspecific. Sims at ¶ 43. Sims now attempts to point to specific

instances of testimony or evidence contradictory to Campbell’s testimony at trial.

He points to three statements Campbell gave to police that were inconsistent with

her trial testimony. However, this was presented to the jury during the trial and this

court’s independent review of the manifest weight of the evidence found Campbell’s

testimony to be “lengthy, coherent, and consistent.” Id. at ¶ 45. This court’s review

included the claims of inconsistent prior statements that were raised on cross-

examination, and nothing argued in the application indicates that the result would

have been different had Sims specifically pointed to these statements.

Sims also claims the statements and testimony of Antonio Roberson,

who confessed to committing the crimes for which Sims was convicted, should have

been more heavily argued on appeal. Again, this court considered those statements,

his testimony, and the testimony of police detectives who attempted to interview

Roberson. Detective Joseph Marche testified that Roberson had confessed to

another killing. However, on investigating this claim, Detective Marche learned that

Roberson was in county jail at the time of the murder to which he confessed. Sims,

8th Dist. Cuyahoga No. 109335, 2021-Ohio-1296, at ¶ 31. Roberson testified for the

defense, and this testimony was reviewed on direct appeal. Id. at ¶ 32-35. This court

was aware of these statements and testimony, and in our independent review of the
evidence presented against appellant, did not find that the weight of the evidence

balanced in favor of acquittal. Id. at ¶ 47. There is nothing argued in the application

for reopening, which asserts arguments more akin to a motion for reconsideration,

that causes us to doubt that determination.

Sims has not shown that counsel was ineffective for not making the

arguments raised within this manifest weight challenge in this case.

Evid.R. 404(B) — Other-Acts Evidence

In his first proposed assignment of error, Sims asserts that appellate

counsel was ineffective for not arguing that the trial court improperly admitted

other-acts evidence governed by Evid.R. 404(B). This rule generally prohibits the

introduction of evidence “of other crimes, wrongs, or acts * * * to prove the character

of a person in order to show action in conformity therewith.” Such evidence may be

admitted only if it falls within certain exceptions.

Sims sites to three pieces of evidence that should not have come in:

Ballistic comparison evidence, other firearms evidence, and statements about

another shooting that involved the same firearm involved in Forkland’s murder.

These claims were raised in the direct appeal, albeit under different

analytical frameworks. Appellate counsel argued that the prosecutor engaged in

misconduct during opening statements and in eliciting testimony of ballistic

comparisons regarding other offenses. Sims, 8th Dist. Cuyahoga No. 109335, 2021-

Ohio-1296, at ¶ 49-58. Within these arguments, appellate counsel specifically

argued that this evidence constituted impermissible other-acts evidence under
Evid.R. 404(B). Id. at ¶ 53. Appellate counsel also argued that the prosecutor

committed misconduct when alluding to another criminal incident during trial, and

we overruled that assignment of error after determining that, even if true, the

statements constituted harmless error. Id. at ¶ 49-58. Further, appellate counsel

argued that improper “other weapons” and ballistic evidence was adduced at trial

without objection as part of the ineffective assistance of counsel claim. Id. at ¶ 65-

75.

These issues were considered on the merits in the direct appeal, and

were decided in favor of the state. Again, principles of res judicata prevent

relitigating these claims. Barnes, 8th Dist. Cuyahoga Nos. 108857, 108858, and

109321, 2020-Ohio-4988, ¶ 13. Even if these claims were not barred, Sims has still

not established a genuine issue of appellate counsel’s effectiveness.

Generally, a claim that a court erred in the admission of improper

other-acts evidence is reviewed under mixed de novo and abuse of discretion

standards depending on the various steps of the analysis. State v. Worley, Slip

Opinion No. 2021-Ohio-2207, ¶ 117, citing State v. Hartman, 161 Ohio St.3d 214,

2020-Ohio-4440, 161 N.E.3d 651, ¶ 22, 30. However, where no objection is raised,

a plain error analysis applies.1 State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-

2961, 911 N.E.2d 242, ¶ 177; State v. Garcia-Toro, 8th Dist. Cuyahoga No. 107940,

1 Sims’s application acknowledges that no objection was raised and trial counsel
did not seek a curative instruction even though the trial court indicated one would be
given if asked: “In sum, this evidence was unfairly prejudicial to appellant. Compounding
the prejudicial impact was the lack of a defense objection and the lack of a curative
instruction.” (Citations omitted.)
2019-Ohio-5336, ¶ 32. This is the same type of deferential standard that applies to

ineffective assistance of counsel claims, which we applied in the direct appeal. Sims

at ¶ 71-72. Further, as we previously recognized, the admission of other-acts

evidence is also subject to harmless error analysis. Id. at ¶ 80.

Each of these claimed instances of the improper admission of other-

acts evidence was argued in the direct appeal, and in each instance, we found no

plain error, no harmless error, or no reversible error. Sims, 8th Dist. Cuyahoga No.

109335, 2021-Ohio-1296, at ¶ 58, 70-74, 80. Again, harmless error is applicable to

an Evid.R. 404(B) analysis. Id. at ¶ 80, citing State v. Chambers, 8th Dist. Cuyahoga

No. 99864, 2014-Ohio-390, ¶ 39-40. Therefore, arguing these alleged instances of

error under the rubric of the improper admission of other-acts evidence as opposed

to prosecutorial misconduct or ineffective assistance of trial counsel would not result

in a different outcome. As we found previously, “the state presented overwhelming,

well-corroborated testimonial evidence to prove appellant’s guilt at trial.” Id. at

¶ 58. Even if the evidence argued in the application was admitted in error, based on

all the other evidence adduced at trial, it was harmless. Id. at ¶ 80.

Therefore, Sims has failed to raise a cognizable claim of ineffective

assistance of appellate counsel for this proposed assignment of error.

Ineffective Assistance of Counsel: Cell Phone Location Data Expert

Sims also claims in his second proposed assignment of error that

appellate counsel was ineffective for not assigning as error trial counsel’s failure to

proffer expert testimony regarding cell phone location data.
 A claim of ineffective assistance of counsel is judged using the

standard announced in Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989). “Counsel’s

performance will not be deemed ineffective unless and until counsel’s performance

is proved to have fallen below an objective standard of reasonable representation

and, in addition, prejudice arises from counsel’s performance.” Id. at paragraph two

of the syllabus.

Trial counsel’s plan of attack was to use cross-examination to point to

cell phone records associated with certain phone numbers and demonstrate that the

phones associated with these numbers were not in the location of the crimes at the

time they were committed using the cell phone tower mailing addresses listed on the

records. Whether this trial tactic was effective is a matter of debatable trial tactics.

“‘Debatable trial tactics do not establish ineffective assistance of counsel.’” State v.

Snyder, 5th Dist. Licking No. 2008-CA-25, 2009-Ohio-2473, ¶ 32, quoting State v.

Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 45. “Trial counsel’s

failure to request an expert is a ‘debatable trial tactic,’ and does not amount to

ineffective assistance of counsel.” Id., citing State v. Thompson, 33 Ohio St.3d 1, 9,

514 N.E.2d 407 (1987) (trial counsel’s failure to obtain a forensic pathologist to

“rebut” issue of rape was not ineffective assistance of counsel); State v. Foust, 105

Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 97-99 (trial counsel’s failure to

request funds for a DNA expert, an alcohol and substance-abuse expert, a

fingerprint expert, and an arson expert did not amount to ineffective assistance of
counsel because appellant’s need for experts was “highly speculative” and counsel’s

choice “to rely on cross-examination” of prosecution’s expert was a “legitimate

tactical decision”); State v. Yarger, 6th Dist. Huron No. H-97-014, 1998 Ohio App.

LEXIS 1837 (May 1, 1998) (trial counsel’s failure to hire an expert medical doctor to

rebut state’s expert witness was not ineffective assistance of trial counsel); State v.

Rutter, 4th Dist. Hocking No. 02CA17, 2003-Ohio-373, ¶ 19, 28 (trial counsel’s

failure to hire an accident reconstructionist did not amount to ineffective assistance

of counsel).

Standing alone, “the failure to call an expert and instead rely on cross-

examination does not constitute ineffective assistance of counsel.” State v.

Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993), citing Thompson at 10-11).

This court relied on Nicholas when scrutinizing a proposed assignment of error in

an application for reopening that argued trial counsel was ineffective for failing to

call an expert witness to challenge the state’s DNA expert witness testimony. State

v. Powell, 8th Dist. Cuyahoga No. 107276, 2020-Ohio-3887, ¶ 37. In rejecting the

claim, the Powell Court determined that relying on cross-examination rather than

calling a defense expert witness does not constitute ineffective assistance of counsel.

Id., quoting Nicholas at 436. The court also noted the speculative nature of such an

argument: “[W]ithout an expert report upon which to rely, any argument about

what the expert would have said is speculation, and speculation is insufficient upon

which to base an appellate argument.” Id., citing State v. Addison, 8th Dist.
Cuyahoga No. 90642, 2009-Ohio-2704; and State v. Schwarzman, 8th Dist.

Cuyahoga No. 100337, 2015-Ohio-516.

Here, the state obtained an expert witness who submitted a report

and testified about cell phone locations in terms of being in the general area of the

radius of certain cellular towers at certain times. Without any indication of how an

expert retained by defense counsel would challenge this testimony, Sims claims trial

counsel was ineffective. Supposition is insufficient to establish a genuine issue

regarding trial counsel’s performance. Id.

Sims’s application for reopening does not establish a genuine issue of

appellate counsel’s effectiveness. Therefore, the application is denied.

MICHELLE J. SHEEHAN, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR