author: Zayas, Judge.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Russell DANIELS, Defendant-Appellant.
    NO. C-170145
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: May 2, 2018
    Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,
    William F. Oswall, Jr., Cincinnati, for Defendant-Appellant.
    OPINION.
   Zayas, Judge.

{¶ 1} Russell Daniels appeals his conviction in the Hamilton County Municipal Court for domestic violence in violation of R.C. 2919.25(A). The victim of the offense was Daniels's wife, Crystal Daniels. For ease of discussion, we will refer to Crystal Daniels as Mrs. Daniels.

{¶ 2} Daniels challenges his conviction on the grounds that the trial court abused its discretion in not dismissing the case at the state's request, his trial counsel was ineffective for not requesting a jury trial after the court denied the request to dismiss and not objecting to prejudicial evidence, and the conviction was against the manifest weight of the evidence. We find no merit to Daniels's arguments and affirm the judgment of the trial court.

Relevant Facts

{¶ 3} Russell Daniels was charged with one count of domestic violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree. The complaint alleged that Daniels had physically harmed his wife by picking her up by her face and pulling her hair.

{¶ 4} Daniels pled not guilty and proceeded to a bench trial. Prior to trial, the prosecutor informed the trial court that Mrs. Daniels did not wish to proceed because the charge was based on a heated argument with her husband. The prosecutor requested that the case be dismissed for want of prosecution.

{¶ 5} The trial court invited the investigating officer to speak. The officer confirmed that the charge was based on a verbal argument that turned physical. He further explained that Mrs. Daniels had alleged that Daniels had attempted to break their dog's neck and had followed her when she had left the house to file a police report. After hearing these facts, the trial court denied the state's request to dismiss the charge.

{¶ 6} Mrs. Daniels and Daniels testified at trial and agreed to the following facts. The Danielses had been married for 22 years, and had three children together. They had been separated for three days when Mrs. Daniels invited him to the marital home to discuss their marriage. The discussion took place in their bedroom, while Mrs. Daniels was lying in bed. Their discussion became heated after he accused her of cheating. Both were screaming and yelling at each other.

{¶ 7} Each testified to a different version of the physical altercation. Mrs. Daniels testified that her hair was in a ponytail, and that Daniels pulled her hair, but did not hurt her. Then he grabbed her face and chin and raised her face upwards. She explained that the facial grab did not leave any marks, but it hurt. While they were arguing, the dog jumped on the bed and tried to play with Daniels. Daniels lifted the dog by the scruff of its neck and set the dog on the floor.

{¶ 8} After Daniels grabbed her, they continued the argument downstairs. While they were arguing, their 12-year-old daughter came into the room and slapped Daniels in the face. Daniels moved their daughter, but did not hurt her. Mrs. Daniels asked him to leave, and she went to her car with her daughter and the dog to call 911. She saw his car behind hers briefly and initially assumed that he was following her. When she looked behind her a second time, he was gone. She proceeded to drive to the police station to file a report.

{¶ 9} During cross-examination, the following exchange occurred between counsel for Daniels and Mrs. Daniels:

Q. This incident allegedly took place on January 20th of this year; is that correct?
A. Yes.
Q. And actually-correct me if I'm wrong, but January 19th, you actually went to District 3 to inquire about how to file for domestic violence?
A. No, that is [ ] incorrect. * * * I went to District 3 to ask how to keep him off of my work's property because some coworkers felt threatened and my administrator advised me to find out if there was anything I could do to keep him off work's property. They told me no. Unless he comes on the property, then they can call the police.
Q. So you inquired about a protection order?
A. From my work's property, not for myself.

{¶ 10} The state rested, and Daniels made a Crim.R. 29(A) motion for an acquittal, which the trial court denied.

{¶ 11} Daniels testified that the argument began when Mrs. Daniels accused him of cheating. Afterwards, he accused her of cheating, and they were both yelling at each other. As he was leaving, she jumped out of the bed and startled him. He threw up his hands and may have hit her face. Then he left to go to his mother's house. He confirmed that he moved the dog off of the bed, and that his daughter slapped him.

{¶ 12} For its rebuttal case, the state recalled Mrs. Daniels. She testified that she did not remember jumping off the bed toward her husband.

{¶ 13} After summarizing the evidence, the trial court found Daniels guilty because he grabbed his wife's face, and the grab was not a startled reflex. The court further found that Daniels pulled her head up and caused her pain. The trial court concluded that Mrs. Daniels was "honest" while testifying.

{¶ 14} The court sentenced him to 180 days in jail, suspended 179 days, and credited the one day he spent in jail. The court sentenced him to 11 months of probation, placed him on 180 days of electronic monitoring, ordered him to complete an anger-management course and imposed court costs. The sentence was stayed pending the resolution of the appeal.

The Motion to Dismiss

{¶ 15} In his first assignment of error, Daniels contends that the trial court erred by denying the state's motion to dismiss the case.

{¶ 16} A trial court's decision to grant or deny a prosecutor's request to dismiss a charge is reviewed for an abuse of discretion. See State v. Mucci , 150 Ohio App.3d 493, 2002-Ohio-6896, 782 N.E.2d 133, ¶ 30 (7th Dist.). An abuse of discretion requires trial court action that is unreasonable, unconscionable, or arbitrary. State v. Adams , 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

{¶ 17} Crim.R. 48(A) provides, "The state may by leave of court and in open court file an entry of dismissal of an indictment, information, or complaint and the prosecution shall thereupon terminate." A trial court should grant the state's motion for a dismissal if the request meets the good cause and open court requirements of Crim.R. 48(A). See Newark v. Williams , 5th Dist. Licking No. 00-CA-68, 2001 WL 1783087, *3 (Mar. 6, 2001), citing State v. Sutton, 64 Ohio App.2d 105, 411 N.E.2d 818 (9th Dist.1979). In making this determination, the trial court can review the information underlying the charges. See Mucci at ¶ 32.

{¶ 18} "Good cause," has been defined as "a substantial reason and one that affords a legal excuse." State v. Brown , 38 Ohio St.3d 305, 308, 528 N.E.2d 523 (1988). The requirement of "good cause" requires "more than a cursory recitation that good cause exists[.]" Lakewood v. Pfeifer , 83 Ohio App.3d 47, 51, 613 N.E.2d 1079 (8th Dist. 1992).

{¶ 19} Here, the record reflects that the prosecutor made an oral motion to dismiss the charge, in open court, and informed the trial court that Mrs. Daniels did not wish to pursue the charge. The only explanation the prosecutor gave was that Mrs. Daniels had indicated the charge stemmed from a heated argument with her husband. After the investigating officer recited the allegations that led to the filing of the domestic-violence charge against Daniels, the trial court denied the state's request.

{¶ 20} We conclude that the trial court acted within its sound discretion in denying the motion to dismiss. Based on the allegations, the complaint was sufficient to charge a domestic-violence offense, and the prosecuting witness was present to testify regarding the allegations. The prosecutor did not provide good cause to dismiss. See Brown at 308, 528 N.E.2d 523.

{¶ 21} Accordingly, the first assignment of error is overruled.

Ineffective Assistance of Counsel

{¶ 22} In his second assignment of error, Daniels alleges that his counsel was ineffective for failing to request a jury trial after the court denied the state's motion, failing to object to inadmissible evidence, and eliciting prejudicial testimony.

{¶ 23} To prevail on an ineffective-assistance-of-counsel claim, Daniels must demonstrate that counsel's performance fell below an objective standard of reasonableness, and he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With regard to deficient performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. Furthermore, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id.

{¶ 24} In order to demonstrate prejudice, Daniels must establish that, but for counsel's errors, there is a reasonable probability that the result of trial would have been different. Strickland at 687, 104 S.Ct. 2052 ; State v. Bradley , 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). The failure to make an adequate showing on either prong is fatal to an ineffective-assistance-of-counsel claim. See Strickland at 697, 104 S.Ct. 2052.

1. Failure to request a jury trial

{¶ 25} Daniels contends that his trial counsel was ineffective for proceeding with a bench trial after the trial court denied the state's motion to dismiss. He further argues that his counsel should have requested a continuance and filed a jury demand after the court heard the allegations and denied the state's request to dismiss the charge. Generally, the decision whether to try a case to a jury or a judge is a trial-strategy decision. State v. Feltha , 1st Dist. Hamilton No. C-160574, 2017-Ohio-8640, 2017 WL 5626213, ¶ 7.

{¶ 26} Daniels does not explain why the failure to request a jury trial was deficient or allege that he was prejudiced. Absent any explanation about how counsel's performance was deficient, Daniels has not overcome the presumption that counsel's decision was sound trial strategy. See Strickland at 689, 104 S.Ct. 2052 ; Feltha at ¶ 7.

2. Failure to object to inadmissible testimony

{¶ 27} Here, the state introduced testimony that the Danielses' daughter slapped Daniels in the face while he was arguing with Mrs. Daniels. Daniels argues that testimony was irrelevant and inadmissible because the daughter did not witness the alleged domestic violence, and the slap by the daughter was not relevant to prove the offense. Daniels further argues that he was prejudiced by the testimony because the trial court stated, while rendering the verdict, that "the fact that the daughter came down and felt the need to slap him, too, that's not exactly helpful."

{¶ 28} Assuming, without deciding, that the testimony was inadmissible, Daniels has failed to show that there is a reasonable probability that the result of the trial would have been different absent the evidence.

{¶ 29} Having considered the evidence provided by the state at trial, we do not find that the absence of the testimony would have changed the outcome of this case. The sole issue in this case was the credibility of the witnesses, and the trial court found that Mrs. Daniels's testimony was more credible than Daniels's testimony. Although the trial court mentioned the testimony about the slap during the summation of the evidence, the court made it clear that the verdict was based on its finding that Mrs. Daniels's testimony was honest.

{¶ 30} Daniels has failed to demonstrate that, but for counsel's failure to object to the testimony, the outcome of the trial would have been different. See Strickland , 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; Bradley , 42 Ohio St.3d at 142, 538 N.E.2d 373.

3. Eliciting prejudicial testimony

{¶ 31} Daniels asserts that counsel was ineffective for eliciting prejudicial testimony from Mrs. Daniels during cross-examination. Defense counsel elicited testimony from Mrs. Daniels that she had gone to the police station at the request of her coworkers to find out how to prevent Daniels from driving in the parking lot at her workplace. A review of the testimony reveals that counsel was attempting to show that Mrs. Daniels had asked the police how to file a domestic-violence charge the day before the argument occurred. Taken in context, it appears that counsel was attempting to impeach the witness. This was a reasonable trial strategy and did not constitute ineffective assistance of counsel.

{¶ 32} Daniels has failed to demonstrate that trial counsel was ineffective. Accordingly, we overrule his second assignment of error.

Manifest Weight of the Evidence

{¶ 33} In his third assignment of error, Daniels argues that his conviction was against the manifest weight of the evidence. When considering a challenge to the weight of the evidence, the court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage of justice. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the evidence should be reserved for only the most " 'exceptional case in which the evidence weighs heavily against the conviction.' " Id. , quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist. 1983), paragraph three of the syllabus.

{¶ 34} Daniels argues that the face grab was the result of a startled reaction and not a deliberate attempt to harm Mrs. Daniels. He further argues that her bare assertion that it hurt when Daniels grabbed her face was not credible.

{¶ 35} R.C. 2919.25(A) provides that "No person shall knowingly cause or attempt to cause physical harm to a family or household member." "Physical harm" is defined as "any injury, illness, or other physiological impairment, regardless of its gravity or duration." R.C. 2901.01(A)(3). The slightest injury is sufficient proof of physical harm. See State v. Hustead , 83 Ohio App.3d 809, 615 N.E.2d 1081 (4th Dist. 1992) (slap to the face, which causes no redness, bruising or head movement, is sufficient proof of physical harm); State v. Neff , 10th Dist. Franklin No. 92 AP 655, 1992 WL 250253, *2 (Sept. 30, 1992) (the act of grabbing and jerking a victim's arm and causing pain constitutes physical harm); State v. Johnson , 2d Dist. Greene No. 88-CA-83, 1989 WL 43040, *4 (Apr. 27, 1989) (the infliction of pain by grabbing the male genitalia is physical harm).

{¶ 36} At trial, the only disputed element was whether Daniels knowingly caused physical harm to Mrs. Daniels. Mrs. Daniels testified that Daniels grabbed her face, causing her pain.

{¶ 37} It is well settled law that the trial court was in the best position to determine the credibility of the witnesses. State v. Railey , 2012-Ohio-4233, 977 N.E.2d 703, ¶ 14 (1st Dist.). The trial court heard both versions of the physical altercation and specifically found that Mrs. Daniels's testimony was "honest." Based on our review of the record, we cannot say that the court clearly lost its way and created such a manifest miscarriage of justice that we must reverse Daniels's conviction and order a new trial. Accordingly, we overrule his third assignment of error.

Conclusion

{¶ 38} Having considered and overruled all of Daniels's assignments of error, we affirm the judgment of the trial court.

Judgment affirmed.

Mock, P.J., and Cunningham, J., concur.


source: Caselaw Access Project

author: Deters, Judge.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Anthony BARROW, Defendant-Appellant.
    NO. C-160378
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: May 2, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Jeffrey Brandt, Los Angeles, CA, for Defendant-Appellant.
    OPINION.
   Deters, Judge.

{¶ 1} Defendant-appellant Anthony Barrow appeals his kidnapping conviction. He assigns as error the trial court's admission of evidence, its failure to grant his motion for a mistrial for an alleged Brady violation, the sufficiency and weight of the evidence supporting his conviction, and the trial court's and his counsel's handling of a claimed conflict of interest near the end of the trial. Finding none of his assigned errors meritorious, we affirm the trial court's judgment.

Evidence Adduced at the Jury Trial

{¶ 2} Barrow and codefendants Andre Buck, Lonnie Rucker, and Timothy Watson were indicted for multiple offenses in connection with the kidnapping of Tyrell George. Barrow was charged with one count of kidnapping in violation of R.C. 2905.01(A)(1), and two counts of having a weapon while under a disability in violation of R.C. 2923.13(A)(2) and (3). The kidnapping count carried one- and three-year firearm specifications and a repeat-violent-offender ("RVO") specification. Barrow and Buck were tried together before a jury. The evidence adduced at their trial was summarized in State v. Buck , Hamilton App., 2017-Ohio-8242, --- N.E.3d ----, ¶ 29-33 :

At the jury trial, the state presented the testimony of Tyrell George, his brother, Timothy Kellam, codefendant Lonnie Rucker, a telephone-records custodian, forensic specialists, and multiple investigators, including Detective [William] Hilbert and Officer [Timothy] Bley, in addition to numerous exhibits.
Telephone records revealed that on the morning of February 6, 2014, Buck and his codefendant Anthony Barrow communicated about 20 times and in one text, Buck had asked Barrow, "Babysitter still on dek?" The term babysitter referred to a person who watched over a kidnapped victim to make sure he would not escape, while other kidnappers secured ransom money.
Later that day, Barrow called George on the pretense of wanting to buy marijuana. George did not know Barrow, but Barrow convinced him that he had bought marijuana from George before. The two exchanged calls and agreed to meet. When George met up with Barrow, he got into Barrow's van, where he was assaulted by Barrow and a second man. The men bound George with duct tape, wiped his clothing and neck with bleach, and then drove away.
George was moved into a second van where two more kidnappers, Timothy Watson and Lonnie Rucker, "babysat" him through the night and into the next day.
Rucker testified that Watson had contacted him on February 6th about being a babysitter. That night, Rucker picked up Watson and drove to a spot where a person was tied up in the back of a van. Watson said they had to sit and watch the victim until the other kidnappers came back with the money.

{¶ 3} During this same time, George's mother, after learning from Kellam that George had been kidnapped for ransom, had contacted the police. Uniformed officers escorted Kellam to the police station where he worked with the police, particularly Detective Hilbert, by communicating with the kidnappers and arranging two ransom drops in an effort to locate and secure George's safe return. When these ransom drops proved unsuccessful, Detective Hilbert became more and more concerned for George's safety.

{¶ 4} As we stated in Buck , Hamilton App., 2017-Ohio-8242, 100 N.E.3d 118, ¶ 35-47 :

* * * [T]he police were ultimately able to locate Buck and a phone that had been used to make ransom calls. At trial, Officer Bley clarified that Buck's phone was recovered from Buck's pocket.
Buck was arrested at about 9:30 a.m., on the 7th, but the police still had no idea where George was.
Within hours of Buck's arrest, Watson and Rucker were frustrated that the ransom had not been paid and were concerned that Kellam had gone to the police. So they left the area, leaving George alone in the van.
At about 2:00 p.m., George escaped from the van and ran to a nearby home. The occupant called the police who responded, and the police brought George to the homicide unit. The police recovered pieces of duct tape from George's socks, noted bleach stains on his clothing, and photographed abrasions on his wrists, caused by the duct tape.
Police recovered the van that George had escaped from. In the van, they found duct tape, pieces of mail addressed to Barrow, and Barrow's and Watson's fingerprints.
Telephone records revealed that Kellam had received about 45 ransom calls from two different telephone numbers, (513) 498-2051 and a second number that Barrow admitted was his.
A Cincinnati Bell representative, Paula Papke, testified that the "IMEI, which is basically the serial number for the phone, which would be contained within the phone itself" for Buck's cell phone matched the IMEI listed in the subscriber record for (513) 498-2051, a prepaid account. She said that subscribers who use prepaid accounts usually provide fictitious personal information when setting up the account. Prepaid-account subscribers have to provide a date of birth as the password for the account, and, without the password, a subscriber cannot access the account. Papke said that many pre-paid account subscribers provide a date of birth that is a single digit off from their actual birthdate. She said that the number (513) 498-2051 was subscribed in the name "Tone Montrell," and that the account password was "11/2/76." Buck's date of birth is November 2, 1977.
Telephone records confirmed that Buck and Barrow communicated with each other and with Kellam and Watson through the evening of the 6th and the morning of the 7th. In addition, the records confirmed that Buck's cell phone "pinged" off cell towers at times and locations that corresponded to those of George's abduction, the kidnappers' movements, and the officer's arrival at his apartment.
In recorded telephone calls from the jail, Buck complained to his mother that his live-in girlfriend had been talking to people about the case, specifically about his cell phone, an important part of the case against him, according to Buck. Buck also angrily confronted his girlfriend about her disclosing the fact that he had purchased his cell phone from her son when she was well aware that "this whole case [is] surrounded by a cell phone."
Barrow testified in his defense that George was a friend of his. According to Barrow, George's brothers were known to be "[i]nto the high-end drug trade." George hatched an extortion plan with Barrow, Watson, and [others] to get $100,000 from George's brother. George was to receive $40,000.
Barrow said that George got into his van voluntarily and that they drove around. At one point, Barrow said, they sat at the Shell station to see if George's brother would come with the money. At that point, they realized that the police might be involved, so Barrow left the group. He did not know where George went.
Barrow testified that he knew Buck, but that Buck was not involved in the kidnapping. He said that he had spoken to several people "through that Buck phone," one of them being Buck.
Buck did not testify at trial.

Verdict and Sentence

{¶ 5} The jury found Barrow guilty of kidnapping, but it acquitted him of the accompanying firearm specifications and the two counts of having a weapon under a disability. Barrow elected to have the trial court determine the RVO specification, and the court found Barrow guilty of that specification. It sentenced Barrow to 11 years in prison for the kidnapping offense and six years for the RVO specification. It ordered the terms be served consecutively to each other and to a four-year prison term in the case numbered B-0803674, for an aggregate sentence of 21 years in prison.

Other-Acts Evidence

{¶ 6} In his first assignment of error, Barrow argues that the trial court erred by admitting evidence of two police investigations of Barrow for kidnapping and Barrow's prior kidnapping conviction, because the evidence was inadmissible evidence of his bad character to show action in conformity therewith. Further, Barrow argues that even if the evidence was admissible, the unfair prejudice substantially outweighed any probative value and it should have been excluded.

{¶ 7} The trial court's decision to admit evidence rests within its broad discretion and is reviewed under an abuse-of-discretion standard. State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. Evid.R. 404(B) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." R.C. 2945.59 contains a similar provision. The evidence, even though offered for an admissible purpose, must be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." Evid.R. 403(A).

{¶ 8} Prior to trial, the state filed a notice that it intended, pursuant to Evid.R. 404(B), to use evidence of Barrow's involvement in and conviction for another kidnapping. At trial, the state sought to introduce this evidence through testimony by Sergeant Howard Grant. Just prior to Grant's testimony, defense counsel asked for a sidebar conference. He requested that the trial court provide a limiting instruction. The trial court stated that it would give a limiting instruction that the state was offering the testimony to show modus operandi and identity, to show that Barrow's actions were purposeful, and that Barrow's involvement was not part of a scheme with George.

{¶ 9} Grant then testified that he became aware that police were investigating an ongoing kidnapping and were concerned for the victim's safety. He informed Detective Hilbert, the investigating officer, that six to seven months earlier he had investigated two kidnappings that were similar to the one Detective Hilbert was investigating. At that point, the trial court, at the state's request, gave the jury the following limiting instruction:

Evidence is about to be received about the commission of crimes or other acts other than the offense with which the defendant, Mr. Barrow, is charged in this trial. That evidence is being received only for a limited purpose. It is not received and you may not consider it to prove the character of the defendant in order to show that he acted in conformity with that character. If you find that the evidence of other crimes or acts is true and that the defendant, Mr. Barrow, committed them you may consider that evidence only for the purposes of deciding whether it proves the defendant's motive, intent, or purpose, preparation or plan to commit the offenses charged in this trial and also the identity of Mr. Barrow as well as the fact that he was not part of a plan or scheme involving-with Mr. George.

{¶ 10} Sergeant Grant testified that in 2013 and 2014, he had investigated two kidnappings two weeks apart where an individual had been kidnapped and held for a large ransom. Barrow's counsel then asked to approach the bench. Defense counsel objected, arguing that Barrow had been investigated for two kidnapping incidents, but charged for only one of them. The court stated that the limiting instruction sufficiently covered these acts as well as any conviction, that the assistant prosecuting attorney would clarify that Barrow had been charged in connection with only one investigation, and that the defense counsel would have the opportunity to clarify that on cross-examination.

{¶ 11} Following the sidebar conference, Sergeant Grant testified that he had been investigating two kidnappings where the kidnapped individuals had relatives who were known participants in the drug trade and carried large sums of money. The kidnappers would make phone contact with the victim, lure the victim to a location, throw the victim into a van, and then drive to another location to bind the victim. The kidnappers would then contact the victim's family, threatening to kill the victim or his or her family members if they did not pay the ransom. Sergeant Grant testified that Barrow had been a suspect in both kidnapping investigations. He had been charged in connection with one of these kidnappings and he had pleaded guilty to kidnapping.

{¶ 12} Here, evidence of the first police investigation of Barrow and his prior kidnapping conviction was relevant and was admitted for proper purposes under Evid.R. 404(B). Barrow's defense at trial was that he did not lure George into his van and hold him for ransom, but that George had solicited Barrow to stage his own kidnapping to extort money from his family. Thus, Barrow placed his motive, plan, and intent at issue in the trial.

{¶ 13} Sergeant Grant's testimony was admissible to prove Barrow's motive and intent when he lured George into the van and held him for ransom. See State v. Johnson , 2d Dist. Montgomery No. 23508, 2011-Ohio-1133, 2011 WL 856270, ¶ 55. Evidence that Barrow had engaged in an identical kidnapping scheme six to seven months earlier tended to disprove Barrow's assertion that the kidnapping was a ruse. Thus, the trial court did not err by admitting the evidence.

{¶ 14} While Barrow claims that the trial court's limiting instruction to the jury was not effective to correct any prejudice stemming from Sergeant Grant's testimony, he points to no specific instance of prejudice. The jury is presumed to follow the instructions, including curative instructions, given to it by the trial court judge. State v. Loza , 71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994). The trial court, erred, however, in permitting Sergeant Grant to testify about the second kidnapping investigation where Barrow had been a suspect, but had not been charged with a crime. But error, if any, was harmless on this record. The state's evidence against Barrow was overwhelming. We, therefore, overrule the first assignment of error.

Motion for New Trial-Alleged Brady Violation

{¶ 15} In his second assignment of error, Barrow argues that "the trial court erred [by] denying his motion for a mistrial as a result of the state's Brady violation-its failure to notify Barrow before trial of the existence of a second interview of George."

{¶ 16} The grant or denial of a mistrial is within the sound discretion of the trial court. State v. Garner , 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). A mistrial is warranted only when a fair trial is no longer possible. State v. Treesh , 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001).

{¶ 17} Under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the state has a duty to disclose to a criminal accused evidence material to the accused's guilt or innocence under the fair-trial guarantee of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. State v. Hunter , 1st Dist. Hamilton No. C-090569, 2012-Ohio-2859, 2012 WL 2403671, ¶ 12. Undisclosed evidence is "material" only if there is a "reasonable probability" that its disclosure would have changed the outcome of the trial.

United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The probability-determination entails an inquiry not into whether a trial with the undisclosed evidence would have yielded a different verdict, but whether the evidence "considered collectively" could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley , 514 U.S. 419, 434-436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The Brady requirements apply to both exculpatory evidence and to evidence used to impeach a witness's credibility. Bagley at 676, 105 S.Ct. 3375 ; State v. Cook , 1st Dist. Hamilton No. C-140118, 2014-Ohio-4900, 2014 WL 5690574, ¶ 11.

{¶ 18} During codefendant Buck's cross-examination of Detective Hilbert, Buck's counsel asked Detective Hilbert if he was surprised that George had testified at trial that he had met Barrow to sell him marijuana when he had not mentioned the marijuana sale during his February 7, 2014 interview. Detective Hilbert testified that he was not surprised, because he had learned of the marijuana sale when he had interviewed George ten-15 days after the February 7, 2014 interview. Detective Hilbert further testified that he had noticed that Barrow's phone records had some calls and text messages between Barrow and George prior to the kidnapping. Detective Hilbert had then met with George to ask him about these contacts. George had then told him that he had met with Barrow to sell him marijuana. Hilbert further testified that George's second statement had been consistent with his trial testimony.

{¶ 19} At that point, Barrow's counsel interrupted and asked to approach the bench. Barrow's counsel told the court that he was unaware Detective Hilbert had interviewed George a second time, or if he had been made aware, he did not recall it. He told the court he had spoken with Detective Hilbert and he could not remember a subsequent interview. Barrow's counsel expressed concern that the interview may have changed his approach.

{¶ 20} The assistant prosecuting attorney stated that he had given this information to Buck's and Barrow's counsel, but that they had been represented by several attorneys. The assistant prosecutor stated that his case file was voluminous and he could not recall if he had specifically relayed this information to Buck's or Barrow's current counsel, but he had asked Detective Hilbert to give them as much information as they needed.

{¶ 21} The trial court stated that there was no evidence that the prosecutor had withheld this information from defense counsel. It suggested that Buck's counsel finish his cross-examination of Detective Hilbert. The court would then give Buck's and Barrow's counsel an opportunity to talk to Detective Hilbert outside the presence of the jury to discover if there was any new material related to Detective Hilbert's second interview of George.

{¶ 22} Buck's counsel stated that he had no issue with Detective Hilbert or the prosecuting attorney. Instead, his issue was with George who had testified that he had told Detective Hilbert in his February 7, 2014 interview that he had met Barrow to sell him marijuana, when this information was not in his original statement. Buck's counsel told the court that he had covered this inconsistency during his cross-examination of Detective Hilbert.

{¶ 23} The next day, following defense counsels' off-the-record discussion with Detective Hilbert, the trial court stated on the record that Detective Hilbert's second interview with George had covered only the discrepancies between George's February 7, 2014 statement and his and Barrow's phone records and had not addressed any additional information. George had acknowledged during this second interview that he had met Barrow to sell him marijuana.

{¶ 24} Buck's counsel resumed his cross-examination of Detective Hilbert. Barrow's counsel then cross-examined Detective Hilbert extensively about his second interview with George, the inconsistencies between George's first and second statements, and his failure to testify at trial consistently with his first statement. Barrow's counsel additionally questioned Detective Hilbert about his disclosure of this second statement to counsel, and Hilbert's failure to mention the second interview in his testimony at the hearing on codefendant Buck's motion to suppress.

{¶ 25} At the close of the state's case, Barrow's counsel moved for a mistrial on the basis that he had believed that the police had interviewed George only one time, and that Barrow had been prejudiced as a result of the state's failure to turn over the information to him about a second interview. The trial court denied the motion for a mistrial on the basis that it had given defense counsel an opportunity to question Detective Hilbert about the content of the second interview and to extensively cross-examine Detective Hilbert about his disclosure of the statement and its impact on George's trial testimony.

{¶ 26} Here, there is no reasonable probability that the outcome of the trial would have been different had George's second statement been disclosed to Barrow's counsel prior to trial. While George's second statement differed from his original statement to police, it was consistent with his trial testimony. At trial, Barrow's counsel attacked George's credibility by pointing out that in his statement to police he had failed to mention Barrow had contacted him to purchase marijuana. While defense counsel may have been able to further attack George's credibility by pointing out the difference between his first and second statements, any alleged failure by the state to provide Barrow's counsel this evidence was not material. Barrow's counsel additionally had the opportunity to question Detective Hilbert about the content of the second interview and to extensively cross-examine Detective Hilbert about his disclosure of George's second statement and its impact on George's trial testimony.

{¶ 27} The state, moreover, had other evidence besides George's testimony that directly linked Barrow to the kidnapping. The state presented Rucker's testimony as the "babysitter," Detective Hilbert's testimony about the phone calls he overhead, and the physical evidence, which included the telephone records, that all supported the kidnapping charge. See Harris v. Lafler, 553 F.3d 1028, 1034 (6th Cir.2009) (noting that "considerable authority * * * indicates that a defendant suffers prejudice from the withholding of favorable impeachment evidence when the prosecution's case hinges on the testimony of one witness"). As a result, the trial court did not abuse its discretion by overruling his motion for mistrial. We, therefore, overrule Barrow's second assignment of error.

Sufficiency and Manifest Weight of the Evidence

{¶ 28} In his third and fourth assignments of error, Barrow argues his kidnapping conviction was based on insufficient evidence and was against the manifest weight of the evidence.

{¶ 29} To reverse a conviction for insufficient evidence, the reviewing court must be persuaded, after viewing the evidence in the light most favorable to the state, that no rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). To reverse a conviction as against the manifest weight of the evidence, the reviewing court must weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and conclude that in resolving conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage of justice. Id. at 387, 678 N.E.2d 541.

{¶ 30} The state argued that Barrow was guilty as either a principal in or a complicitor to George's kidnapping. Complicity is where a person "acting with the kind of culpability required for the commission of an offense * * * aid[s] or abets another in committing the offense." R.C. 2923.03(A)(2). To support a conviction for complicity by aiding and abetting, the state must show that the defendant assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime and that the defendant shared in the criminal intent of the principal. State v. Johnson , 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. Aiding and abetting can be inferred by presence, companionship, and conduct before and after the offense is committed. Id. at 245, 754 N.E.2d 796.

{¶ 31} Barrow was convicted of kidnapping pursuant to R.C. 2905.01(A)(1), which provides that "[n]o person, by force, threat, or deception * * * shall remove another from the place where the other person is found or restrain the liberty of the other person" for the purpose of holding him "for ransom or as a shield or hostage." Barrow contends the state failed to present any evidence that he had "purposely by force, threat or deception, removed" George. We disagree.

{¶ 32} George testified that Barrow had contacted him the day of the kidnapping under the pretense of purchasing marijuana from him and they had arranged a meeting. After some coaxing from Barrow, George got into Barrow's van to sell Barrow marijuana. Barrow and another man immediately began assaulting George from behind. As George struggled to escape, Barrow threatened to shoot him. Afraid for his life, George stopped struggling. The two men then bound George with duct tape and rope, wiped his neck and clothing with bleach, and drove away. George was then held for ransom until the following afternoon when he was able to escape.

{¶ 33} Telephone records and testimony from Kellam, Detective Hilbert, and Rucker established that shortly thereafter Buck and other unidentified men called Kellam demanding money and threatening to kill George if Kellam did not pay. Ransom drops were attempted at two separate locations. Telephone records and text messages detailed communications between Barrow, Buck, Watson, and Rucker. Rucker testified that he and Watson had "babysat" George, that George had been scared for his life, and that George had kept asking Rucker if he was going to let him go. When viewed in the light most favorable to the prosecution, this evidence could have convinced a rational trier of fact that Barrow had acted as a principal or in concert with codefendants Buck, Watson, and Rucker to purposely by force, threat, or deception remove George from the place where he was found or restrain him of his liberty for the purpose of holding him for ransom. See Buck, Hamilton App., 2017-Ohio-8242, 100 N.E.3d 118, at ¶ 28-49 ; Thompkins , 78 Ohio St.3d at 386, 678 N.E.2d 541.

{¶ 34} Barrow next argues that his conviction is against the manifest weight of the evidence. He argues the jury lost its way in concluding that he had kidnapped George for ransom. While Barrow testified at trial that he and George had devised a plan with Watson and others to extort $100,000 from Kellam and that George was to receive $40,000 of the ransom money, the jury, as the trier of fact, was in the best position to judge the credibility of the witnesses. See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). After reviewing the record, we cannot conclude the jury lost its way and created a manifest miscarriage of justice by choosing to accord more weight to the testimony of the state's witnesses than to Barrow's and convicting Barrow of kidnapping George. See Thompkins at 386, 678 N.E.2d 541. We, therefore, overrule the third and fourth assignments of error.

Conflict of Interest

{¶ 35} In his fifth assignment of error, Barrow contends "the trial court erred by failing to hold a hearing as a result of news of a possible conflict of interest, and trial counsel was ineffective in failing to object."

{¶ 36} A criminal defendant's Sixth Amendment right to the effective assistance of counsel encompasses both the right to competent representation and the right to representation that is free from conflicts of interest. Wood v. Georgia , 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) ; Glasser v. United States , 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Conflicts of interest can arise from defense counsel's joint or successive representation. Jalowiec v. Bradshaw , 657 F.3d 293, 315 (6th Cir. 2011). "Successive representation occurs where defense counsel has previously represented a co-defendant or trial witness." Moss v. United States , 323 F.3d 445, 459 (6th Cir. 2003).

{¶ 37} A defendant who claims he was denied the right to conflict-free counsel must demonstrate that "an actual conflict of interest" adversely affected his lawyer's performance. Wood at 273, 101 S.Ct. 1097 ; Moss at 459-460. "A possible conflict is insufficient." State v. Getsy , 84 Ohio St.3d 180, 187, 702 N.E.2d 866 (1998).

{¶ 38} An "actual conflict of interest," for purposes of the Sixth Amendment, is "a conflict of interest that adversely affects counsel's performance." Mickens v. Taylor , 535 U.S. 162, 172, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), fn. 5. To prove an "actual conflict of interest," the defendant must show that his counsel "actively represented conflicting interests," and that the conflict "actually affected the adequacy of his representation." Id. , quoting Cuyler v. Sullivan , 446 U.S. 335, 349-350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

{¶ 39} Before closing arguments on the tenth day of trial, Buck's counsel informed the court that Buck had just told him that Barrow's counsel had represented him in 2007. Barrow's counsel told the court that he had researched the 2007 matter and found another attorney's name listed. Given his heavy case load, however, he could not specifically recall if he had represented Buck.

{¶ 40} The trial court expressed its skepticism of any conflict by stating that the trial was in its second week, Barrow's counsel had been representing him for some time, and there had been earlier court settings where Buck could have raised the claimed conflict. The court pointed out that Barrow had testified that Buck had nothing to do with the charged offenses, and that Barrow's counsel had done nothing to try to incriminate Buck. Buck responded by stating that he had not realized earlier that there was a potential conflict. Barrow did not object or express any concern.

{¶ 41} Barrow argues on appeal that the trial court erred by failing to inquire further into this alleged conflict of interest.

He argues that once the trial court learned that Barrow's counsel had represented Buck in the prior unrelated criminal matter, the court should have questioned Barrow's counsel about whether he had given Barrow advice or had questioned certain witnesses in order to favor Buck rather than to assist Barrow. Barrow further asserts that because his testimony exonerated Buck, the trial court was required to investigate whether his counsel had urged him to testify because this advice would have reflected an actual conflict of interest.

{¶ 42} Prior to Barrow's testimony, Barrow's counsel had informed the trial court outside of the presence of the jury that Barrow had decided to testify against counsel's advice. Absent evidence that Barrow's counsel's basic strategic decisions were influenced by his representation of Buck nine years earlier in an unrelated matter, the trial court had no duty to make further inquiries into the existence of a conflict of interest. State v. Tucker , 1st Dist. Hamilton No. C-020821, 2003-Ohio-6056, 2003 WL 22681145, ¶ 30 ; State v. Dillon , 74 Ohio St.3d 166, 169, 657 N.E.2d 273 (1995) (holding the trial court had no duty to inquire into a conflict of interest where no possibility of conflict existed given the facts known to the trial court). Nor can we conclude that Barrow's counsel was ineffective for failing to object or make further argument relating to the alleged conflict of interest. We, therefore, overrule Barrow's fifth assignment of error and affirm the judgment of the trial court.

Judgment affirmed.

Myers, P.J., and Miller, J., concur.


author: Wise, John, P. J.

text:
    Frank D. LAZZERINI, Petitioner v. George T. MAIER, Sheriff, Respondent
    No. 2018 CA 00025
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT ENTRY: May 2, 2018
    DONALD J. MALARCIK, BRIAN M. PIERCE, 54 East Mill Street, Suite 400, Akron, Ohio 44308, For Petitioner
    JOHN D. FERRERO, PROSECUTING ATTORNEY, KATHLEEN O. TATARSKY, ASSISTANT PROSECUTOR, 110 Central Plaza South, Suite 510, Canton, Ohio 44702-0049, For Respondent
    JUDGES: Hon. John W. Wise, P. J., Hon. Patricia A. Delaney, J., Hon. Earle E. Wise, Jr., J.
   Wise, John, P. J.

{¶ 1} Petitioner, Frank D. Lazzerini, has filed a Petition for Writ of Habeas Corpus alleging unlawful detention due to excessive bail. Respondent has filed an Answer, Return, and Motion to Dismiss.

{¶ 2} An indictment has been issued against Petitioner containing 272 felony counts. Those counts include Telecommunications Fraud, Grand Theft, Tampering with Records, Involuntary Manslaughter, Aggravated Trafficking in Drugs, and Trafficking in Drugs.

The principles governing habeas corpus in these matters are well established. Under both the United States and Ohio Constitutions, 'excessive bail shall not be required.' If the offense is bailable, the right to reasonable bail is an inviolable one which may not be infringed or denied.
In re Gentry (1982), 7 Ohio App.3d 143, 7 OBR 187, 454 N.E.2d 987, and Lewis v. Telb (1985), 26 Ohio App.3d 11, 26 OBR 179, 497 N.E.2d 1376. The purpose of bail is to secure the attendance of the accused at trial. Bland v. Holden (1970), 21 Ohio St.2d 238, 50 O.O.2d 477, 257 N.E.2d 397.
In Ohio, the writ of habeas corpus protects the right to reasonable bail. In re Gentry. A person charged with the commission of a bailable offense cannot be required to furnish bail in an excessive or unreasonable amount. In re Lonardo (1949), 86 Ohio App. 289, 41 O.O. 313, 89 N.E.2d 502. Indeed, bail set at an unreasonable amount violates the constitutional guarantees. Stack v. Boyle (1951), 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3.
Pursuant to Crim.R. 46, in determining what is reasonable bail, the court must weigh various factors: the nature and circumstances of the offense charged, the weight of the evidence, the accused's history of flight or failure to appear at court proceedings, his ties to the community, including his family, financial resources and employment, and his character and mental condition. After weighing these factors, the trial judge sets the amount of bail within his sound discretion. In a habeas corpus action to contest the reasonableness of bond, this court must determine whether the trial court abused its discretion. Jenkins v. Billy (1989), 43 Ohio St.3d 84, 538 N.E.2d 1045 ; In re Gentry (1982), 7 Ohio App.3d 143, 7 OBR 187, 454 N.E.2d 987 ; Lewis (1985), 26 Ohio App.3d 11, 26 OBR 179, 497 N.E.2d 1376 ; and In re Green (1995), 101 Ohio App.3d 726, 656 N.E.2d 705. In re Periandri , 142 Ohio App. 3d 588, 591, 756 N.E.2d 682, 684 (8th Dist.[2001] ).
What bail is or is not reasonable is a question for the exercise of sound discretion by the court. The decision is dependent upon all the facts and circumstances in each individual case. Bland v. Holden (1970), 21 Ohio St.2d 238, 257 N.E.2d 397 [50 O.O.2d 477]." Petition of Gentry , 7 Ohio App. 3d 143, 145, 454 N.E.2d 987, 989-90 (1982).

{¶ 3} An abuse of discretion occurs when a court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 4} Bail in the underlying case was set in the amount of $5,000,000. Petitioner filed a motion requesting modification of the bail. A hearing was held wherein the parties presented arguments in support of their positions. No evidence was offered in support of the arguments.

{¶ 5} At the hearing on the motion to modify the bail amount, the trial court relied on the seriousness of the offenses charged which include two involuntary manslaughter counts, engaging in a pattern of corrupt activity, 28 counts of aggravated trafficking in drugs, 9 of which include major drug offender specifications, in its decision to keep the bond at five million dollars. Further, the trial court found the probability of appearing in court was lessened due to the substantial and unprecedented number of charges against Relator, as well as due to the potential significant sentence.

{¶ 6} We cannot say under these circumstances that we find the trial court abused its discretion in setting the bond in this case.

{¶ 7} The Supreme Court has further held,

[I]n a habeas corpus proceeding, "where the return sets forth a justification for the detention of the petitioner, the burden of proof is on the petitioner to establish his right to release."
[Yarbrough v. Maxwell] Id. [174 Ohio St. 287] at 288, 22 O.O.2d [341] at 342, 189 N.E.2d [136] at 137 [ (1963) ]. In satisfying this burden of proof, the petitioner must first introduce evidence to overcome the presumption of regularity that attaches to all court proceedings. Id. at 288, 22 O.O.2d at 342, 189 N.E.2d at 137.
Thus, in habeas corpus actions, "the state makes a prima facie case by showing by what authority it holds the prisoner" and the "burden of proceeding then shifts to the prisoner to introduce facts which would justify the granting of bail. See, e.g., Muller v. Bridges (1966), 280 Ala. 169, 170, 190 So.2d 722, 723. Chari v. Vore , 91 Ohio St.3d 323, 2001-Ohio-49, 744 N.E.2d 763 (2001).

{¶ 8} Respondent directs this Court to the fact Petitioner's failure to present any evidence in support of his claims such as proof of Petitioner's financial status, medical licensure status, and passport status.

{¶ 9} Because Petitioner has not introduced evidence demonstrating he is entitled to the issuance of a writ of habeas corpus and because we cannot find the trial court abused its discretion in setting the bond, the motion to dismiss is granted.

Delaney, J., and Wise, Earle, J., concur.


author: CALLAHAN, Judge.

text:
    STATE of Ohio, Appellee v. Joseph MARTIN, Appellant
    No. 28722
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: May 2, 2018
    HECTOR G. MARTINEZ, JR., and LESLIE S. JOHNS, Attorneys at Law, for Appellant.
    AMBER K. ZIBRITOSKY, Law Director, for Appellee.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Defendant-Appellant, Joseph Martin, appeals from the judgment of the Stow Municipal Court, denying his motions to suppress. This Court affirms.

I.

{¶ 2} Late one evening, Officer Max Westfall responded to Akron-Peninsula Road based on a report that a female had jumped from a moving car. Upon his arrival, he found Mr. Martin on the roadside next to the injured female, who had been the only passenger in the car Mr. Martin had been driving. Officer Westfall spoke with Mr. Martin and detected a strong odor of alcohol coming from his person. Because he also detected several other indicia of impairment and Mr. Martin admitted that he had been drinking, he asked Mr. Martin to submit to field sobriety testing and a portable breath test. Mr. Martin, however, refused both tests. Based on the strong odor of alcohol he detected, the other indicia of impairment he observed, Mr. Martin's admission to drinking alcohol, and his refusal to undergo sobriety tests, Officer Westfall then arrested Mr. Martin.

{¶ 3} After arresting Mr. Martin, Officer Westfall transported him to the Richfield Police Department so that a breath test could be administered. Mr. Martin initially refused to take that test as well, but agreed after Officer Westfall and another officer explained the consequences that could result from his refusal. It was then determined that Mr. Martin had a blood alcohol level of .172.

{¶ 4} Mr. Martin was charged with two counts of operating a vehicle under the influence of alcohol ("OVI"), in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(h). He filed several motions to suppress, and the court held a hearing on his motions. Following the hearing, the court denied the motions, and Mr. Martin pleaded no contest to the charges. The court sentenced him to 90 days in jail, a year of community control, a fine, and a license suspension.

{¶ 5} Mr. Martin now appeals and raises one assignment of error for this Court's review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING HIS MOTIONS TO SUPPRESS EVIDENCE.

{¶ 6} In his sole assignment of error, Mr. Martin argues that the trial court erred by denying his motions to suppress. He argues that his motions had merit because Officer Westfall lacked reasonable suspicion to detain him for field sobriety testing, lacked probable cause to arrest him, and implied coercive tactics when obtaining his consent to submit to a breath test. This Court does not agree that the trial court erred when it denied the motions to suppress.

{¶ 7} A motion to suppress evidence presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." Id. , citing State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Thus, a reviewing court gives deference to and "must accept the trial court's findings of fact if they are supported by competent, credible evidence." Burnside at ¶ 8, citing State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). "Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Burnside at ¶ 8, citing State v. McNamara , 124 Ohio App.3d 706, 710, 707 N.E.2d 539 (4th Dist.1997).

Reasonable Suspicion to Detain

{¶ 8} "Encounters with police span a continuum from consensual encounters to investigatory stops to seizures tantamount to an arrest." State v. Mason , 9th Dist. Summit No. 27715, 2016-Ohio-7081, 2016 WL 5723972, ¶ 20. "A 'minimal intrusion of simple questioning of a person not in custody does not constitute a 'seizure' requiring Fourth Amendment protection.' " (Emphasis sic.) State v. Curran , 9th Dist. Medina No. 16CA0021-M, 2016-Ohio-8502, 2016 WL 7626176, ¶ 9, quoting State v. Robinette , 80 Ohio St.3d 234, 240, 685 N.E.2d 762 (1997). If a consensual encounter becomes an investigatory detention, however, the detention is constitutional only if it is supported by reasonable suspicion. See Curran at ¶ 9. Accord State v. Helmick , 9th Dist. Summit No. 27179, 2014-Ohio-4187, 2014 WL 4724760, ¶ 9-10. " '[R]easonable suspicion exists if an officer can point to specific and articulable facts indicating that [an individual] may be committing a criminal act.' " State v. Osburn , 9th Dist. Wayne No. 07CA0054, 2008-Ohio-3051, 2008 WL 2485160, ¶ 9, quoting Wadsworth v. Engler , 9th Dist. Medina No. 2844-M, 1999 WL 1215151, *3 (Dec. 15, 1999). "Reasonable suspicion is based on the totality of the circumstances."

State v. Hochstetler , 9th Dist. Wayne No. 16AP0013, 2016-Ohio-8389, 2016 WL 7597900, ¶ 10.

{¶ 9} The trial court found that Officer Westfall first made contact with Mr. Martin when he responded to the scene of an accident. The accident involved Mr. Martin's passenger, who had apparently jumped from their moving car as Mr. Martin was driving. The court found that, while investigating the accident, Officer Westfall surmised that both Mr. Martin and his injured passenger had recently consumed alcohol. Specifically, the court found that Mr. Martin admitted he had consumed alcohol and "demonstrated physical indicia of over consumption." Because Officer Westfall wished to investigate further, he continued to detain Mr. Martin and asked him to undergo field sobriety testing. By denying Mr. Martin's motions to suppress, the court rejected his argument that Officer Westfall lacked reasonable suspicion to conduct an investigatory detention.

{¶ 10} Mr. Martin does not take issue with any particular factual finding that the trial court made. Instead, he argues that the court erred as a matter of law when it denied his motions to suppress. He notes that there was no evidence he drove in an unsafe manner, had any difficulty with his speech, or struggled when responding to questions. Accordingly, he argues that Officer Westfall lacked reasonable suspicion to detain him after their initial encounter.

{¶ 11} Upon review, this Court accepts the trial court's factual findings as true. See Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8. Officer Westfall testified that he responded to Akron-Peninsula Road based on reports that Mr. Martin's passenger had jumped from their moving car. When he arrived on scene, Mr. Martin was with the injured passenger, who was lying on the roadside about fifty feet from their car. He testified that he detected a "strong odor of alcohol" in their vicinity and, when paramedics arrived, he and Mr. Martin walked back over to the car Mr. Martin had been driving. While speaking with Mr. Martin, Officer Westfall continued to detect a strong odor of alcohol coming from his person, so he asked Mr. Martin how much he had to drink. Mr. Martin then replied that he had "had three within the last two hours." Officer Westfall noted that Mr. Martin had red and watery eyes and was swaying back and forth during their conversation. He testified that, in his experience, Mr. Martin exhibited signs of impairment. Because his testimony serves as competent, credible evidence in support of the trial court's factual findings, this Court accepts those factual findings and considers them in light of the applicable legal standard. See id.

{¶ 12} As noted, when a consensual encounter later results in an investigatory detention, that detention must be supported by reasonable suspicion. See Curran , 2016-Ohio-8502, at ¶ 9. See also State v. Sunday , 9th Dist. Summit No. 22917, 2006-Ohio-2984, 2006 WL 1627375, ¶ 30 (officer must have reasonable suspicion to conduct field sobriety testing). "This Court has held that even a mild odor of alcohol can provide reasonable suspicion for field sobriety testing when paired with other factors * * *." State v. High , 9th Dist. Medina No. 17CA0019-M, 2017-Ohio-8264, 2017 WL 4779556, ¶ 14. Here, Officer Westfall detected a strong odor of alcohol coming from Mr. Martin and saw that he was swaying back and forth and had red, watery eyes. Moreover, Mr. Martin admitted that he had consumed three alcoholic beverages within the last two hours. The combination of his admission and the observations that Officer Westfall made "was sufficient to provide [the officer] with reasonable suspicion to detain [Mr. Martin] to investigate a possible violation of Ohio's laws prohibiting [OVI]." State v. Tomko , 9th Dist. Summit No. 19253, 1999 WL 1037762, *3 (Nov. 3, 1999). See also State v. Osburn , 2008-Ohio-3051, at ¶ 9. Accordingly, this Court rejects Mr. Martin's argument to the contrary.

Probable Cause to Arrest

{¶ 13} "[I]n [OVI] prosecutions, the [S]tate is not required to establish that a defendant was actually impaired while driving, but rather, need only show an impaired driving ability." State v. Slone , 9th Dist. Medina No. 04CA0103-M, 2005-Ohio-3325, 2005 WL 1530358, ¶ 9. An officer has probable cause to arrest an individual for impaired driving if, "at the time of arrest, the officer had sufficient facts derived from a reasonably trustworthy source to cause a prudent person to believe the suspect was driving under the influence." State v. Hopp , 9th Dist. Summit No. 28095, 2016-Ohio-8027, 2016 WL 7131119, ¶ 8. "This inquiry requires consideration of the totality of the circumstances known to the officer at the time of arrest." State v. Rogers , 9th Dist. Wayne, 2017-Ohio-357, 83 N.E.3d 238, ¶ 9. The State may rely " 'on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person's physical and mental ability to drive was impaired.' " Slone at ¶ 9, quoting State v. Holland , 11th Dist. Portage No. 98-P-0066, 1999 WL 1313665, at *5 (Dec. 17, 1999). " 'Virtually any lay witness, without special qualifications, may testify as to whether or not an individual is intoxicated.' " State v. Zentner , 9th Dist. Wayne No. 02CA0040, 2003-Ohio-2352, 2003 WL 21040664, ¶ 19, quoting State v. DeLong , 5th Dist. Fairfield No. 02 CA 35, 2002-Ohio-5289, 2002 WL 31185809, ¶ 60.

{¶ 14} The trial court determined that Officer Westfall had probable cause to arrest Mr. Martin based on the totality of the circumstances. Those circumstances included Mr. Martin's admission to having consumed alcohol, the signs of impairment he exhibited, and the fact that he refused to participate when Officer Westfall attempted to investigate further. This Court has already determined that the record supports the trial court's findings that Mr. Martin admitted drinking alcohol and exhibited signs of impairment. As to its finding that Mr. Martin refused to participate in Officer Westfall's investigation, this Court likewise concludes that the trial court's finding is based on competent, credible evidence. Officer Westfall testified that Mr. Martin refused field sobriety testing, claiming he was too upset, and refused a portable breath test on the basis that "he would be over [the limit]." Thus, the record supports the trial court's findings, and this Court accepts them as true. See Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8.

{¶ 15} Upon review, this Court must conclude that Officer Westfall had probable cause to arrest Mr. Martin for an OVI. Based on his extensive training and experience, Officer Westfall testified that Mr. Martin was intoxicated and unfit to operate a motor vehicle. See Zentner at ¶ 19, quoting DeLong at ¶ 60. There was evidence that Mr. Martin admitted to consuming "three within the last two hours" and otherwise exhibited several physiological indicators of impairment, including a strong odor of alcohol, red eyes, and an inability to stop swaying while speaking with Officer Westfall. See Slone at ¶ 9, quoting Holland at *14. He also refused to take a breath test on the basis that "he would be over." See State v. Filip , 9th Dist. Medina, 2017-Ohio-5622, 94 N.E.3d 125, ¶ 39 (suspect's refusal to submit to breath test probative of his impairment). The totality of the circumstances support the conclusion that Officer Westfall had probable cause to believe Mr. Martin was driving under the influence. See Hopp at ¶ 8. As such, this Court rejects Mr. Martin's argument to the contrary.

Consent to Breath Testing

{¶ 16} "As part of obtaining the privilege to drive in Ohio, a driver implicitly consents to a search, through means of a chemical test, to determine the amount of intoxicating substances in the driver's body, upon the driver's arrest for [OVI]." State v. Hoover , 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 14. Accord State v. Hamrick , 9th Dist. Lorain No. 16CA010935, 2017-Ohio-4211, 2017 WL 2541204, ¶ 7, citing R.C. 4511.191(A)(2). The implied consent statute, as it applied to Mr. Martin at the time of his arrest, required law enforcement officers to ask him to submit to a chemical test of his "whole blood, blood serum or plasma, breath, or urine * * *." Former 4511.191(A)(5)(a). The statute provided, in relevant part:

A law enforcement officer who makes a request * * * that a person submit to a chemical test * * * is not required to advise [him] of the consequences of submitting to, or refusing to submit to, the test * * * and is not required to give [him] the form described in [ R.C. 4511.192(B) ], but the officer shall advise [him] at the time of the arrest that if [he] refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that [he] submits to a chemical test of [his] whole blood or blood serum or plasma.

Id. "The Ohio Supreme Court has determined that the implied consent statute is constitutional, violating neither the search and seizure requirements of the Fourth Amendment nor the Fifth Amendment right against self-incrimination." State v. Walters , 9th Dist. Medina No. 11CA0039-M, 2012-Ohio-2429, 2012 WL 1970450, ¶ 20, citing Hoover at ¶ 17.

{¶ 17} The trial court found that, after his arrest, Mr. Martin was taken to the Richfield Police Department so that a breath test could be administered. After officers read him a BMV Form 2255, he initially refused to submit to the test. The trial court found that Officer Westfall then informed Mr. Martin that he might be subject "to higher degrees of crime" if they had to transport him to the hospital for a blood test. Following further discussion, Mr. Martin consented to the breath test. The trial court found that his breath sample was not obtained as a result of coercion. The court, therefore, refused to suppress the results of the breath test.

{¶ 18} Mr. Martin argues that the trial court erred by not suppressing the results of his breath test because he did not voluntarily submit to the test. According to Mr. Martin, he only submitted to the test as a result of coercive measures that the police employed; namely, threatening to charge him with additional crimes. He relies heavily on Birchfield v. North Dakota , 579 U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), to support the proposition that his Fourth Amendment rights were violated when he was compelled to take the breath test.

{¶ 19} In Birchfield , the United States Supreme Court considered "whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream." Birchfield at 2172,. The Supreme Court determined that motorists "cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense" due to the fact that blood tests are invasive and implicate significant privacy concerns. (Emphasis added.) Id. at 2184-2186. The Supreme Court also held, however, that "the Fourth Amendment permits warrantless breath tests * * *" because "[t]he impact of breath tests on privacy is slight * * *." Id. at 2184. Additionally, the Supreme Court noted that its decision only pertained to implied consent statutes that imposed criminal penalties for chemical test refusals. Id. at 2185. It specified that its opinion should not be read to cast doubt on prior opinions that "referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply." Id.

{¶ 20} Though Mr. Martin attempts to rely on Birchfield , he was not criminally charged with a refusal to undergo chemical testing. Compare id. at 2170-2172. The results of his chemical test simply would have had evidentiary consequences for him in the prosecution of his OVI conviction. See id. at 2185. Moreover, he submitted to a breath test, not a blood test. Compare id. at 2186. The Birchfield Court specifically drew a distinction between blood tests and breath tests and found that "the Fourth Amendment permits warrantless breath tests * * *." Id. at 2184. Accordingly, while he relies upon Birchfield , the case actually bodes against his argument on appeal.

{¶ 21} Although the trial court found that Mr. Martin's breath sample was not obtained as a result of coercion, this Court need not determine whether Mr. Martin voluntarily or involuntarily submitted to his breath test. See State v. Mason , 9th Dist. Summit No. 27715, 2016-Ohio-7081, 2016 WL 5723972, ¶ 25 ("An appellate court shall affirm a legally correct judgment, including the denial of a motion to suppress, even if the trial court's reasoning was flawed."). That is because, even assuming he was compelled to take the test, Mr. Martin had no constitutional right to refuse it. See Hoover , 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, at ¶ 22. See also Birchfield at 2184,. Officers were authorized to require him to submit to a breath test. See Hoover at ¶ 22 ; Birchfield at 2184. Accordingly, this Court rejects his argument to the contrary. Mr. Martin's assignment of error is overruled.

III.

{¶ 22} Mr. Martin's assignment of error is overruled. The judgment of the Stow Municipal Court is affirmed.

Judgment affirmed.

HENSAL, P. J.

TEODOSIO, J.

CONCUR

      Mr. Martin does not dispute that Former R.C. 4511.191(A)(5)(a) was applicable to him because, at the time of his arrest, he had already been convicted of two OVIs within a six-year period. See Former R.C. 4511.191(A)(5)(a) and 4511.19(G)(1)(c).


author: Hoffman, P.J.

text:
    IN RE: D.F.
    No. 2016CA0015, 2016CA0016
    Court of Appeals of Ohio, Fifth District, Coshocton County.
    DATE OF JUDGMENT ENTRY: May 2, 2018
    CHARLYN BOHLAND, The Office of the Public Defender, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, For Appellant
    BENJAMIN E. HALL, Coshocton County Prosecutor's Office, Assistant Prosecuting Attorney, 318 Chestnut Street, Coshocton, Ohio 43812, For Appellee
    JUDGES: Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Earle E. Wise, Jr., J.
   Hoffman, P.J.

{¶ 1} This case comes before this Court from the judgment entered by the Ohio Supreme Court on February 28, 2018, remanding for application of State v. Morgan, 2017-Ohio-7566, 93 N.E.3d 902. Appellant is D.F.; Appellee is the state of Ohio.

STATEMENT OF PROCEEDINGS

{¶ 2} On January 17, 2014, the State filed a Bill of Information alleging D.F. committed two counts of rape, felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b), with each charge carrying an attendant serious youthful offender (SYO) specification, pursuant to R.C. 2152.11(D)(2)(b) ; and one count of gross sexual imposition, a third degree felony, in violation of R.C. 2907.05(A)(4).

{¶ 3} Appellant's date of birth is October 18, 1995, and the offenses were alleged to have occurred between December 3, 2009, and January 16, 2013.

{¶ 4} On January 17, 2014, Appellant entered an admission to the charges. The matter proceeded to disposition on January 30, 2014. The juvenile court committed Appellant to the Ohio Department of Youth Services for a minimum of two years and six months, maximum of up to Appellant's twenty-first birthday. Pursuant to the SYO specification and R.C. 2152.11(D)(2)(b), the court imposed a suspended adult sentence of life imprisonment with parole eligibility after 15 years on each count of rape, to be served concurrently.

{¶ 5} Based upon Appellant's conduct while committed to DYS , on December 23, 2015, the State moved to invoke the suspended adult sentence under the SYO specification. On October 4, 2016, the trial court conducted a hearing, and imposed an adult term of incarceration of fifteen years to life. The trial court on the same date held a hearing and imposed a juvenile disposition regarding classification. The court classified Appellant a tier III, Public Registry Qualified Juvenile Offender Registrant (PRQJOR), pursuant to R.C. 2152.86. The parties and the trial court acknowledged all juvenile dispositions terminated upon the imposition of an adult sentence, but "waived any defect to this juvenile dispositional order and...affirmed its intention for this juvenile order to survive the adult sentence." (10/5/2016 Judgment Entry) The court also classified Appellant a tier III adult registrant. Counsel for Appellant did not object to the sentence or classifications.

{¶ 6} Appellant appealed assigning as error,

I. THE JUVENILE COURT ERRED WHEN IT FAILED TO APPOINT A GUARDIAN AD LITEM TO PROTECT D.F.'S BEST INTERESTS, IN VIOLATION OF R.C. 2151.281(A)(1) AND JUV. R. 4(B)(1).
II. THE MANDATORY SENTENCING SCHEME IN R.C. 2971.03 IS UNCONSTITUTIONAL BECAUSE IT DOES NOT PERMIT THE TRIAL COURT TO MAKE AN INDIVIDUALIZED DETERMINATION ABOUT D.F.'S SENTENCE OR THE ATTRIBUTES OF HIS YOUTH, IN VIOLATION OF HIS RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AS GUARANTEED BY THE EIGHTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, SECTION 9, OHIO CONSTITUTION.
III. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.F. AS A PUBLIC REGISTRY QUALIFIED JUVENILE OFFENDER REGISTRANT (PRQJOR), PURSUANT TO R.C. 2152.86, IN VIOLATION OF IN RE C.P., 131 OHIO ST.513, 2012-OHIO-1446, 131 Ohio St.3d 513, 967 N.E.2d 729, ¶ 86.
IV. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.F. TO AN ADULT TIER III REGISTRATION, PURSUANT TO THE ADULT STATUTES, IN VIOLATION OF R.C. 2152.82, 2152.83, 2152.84, 2152.85, AND 2950.01(G), (M).
V. D.F. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO CONSTITUTION.

{¶ 7} We sustained the first assignment of error, finding the court erred in failing to appoint a guardian ad litem for Appellant. We overruled the second assignment of error, finding the Ohio Supreme Court had addressed the assigned error concerning constitutionality of the statute. We found the third, fourth and fifth assignments of error to be premature based on our disposition of the first assignment of error. In re: D.F., 5th Dist. Coshocton Nos. 2016CA0015, 2017-Ohio-7307, 2017 WL 3635585.

{¶ 8} The state of Ohio appealed our decision to the Ohio Supreme Court, which accepted jurisdiction over the appeal. On February 28, 2018, the Supreme Court remanded the case to this Court for reconsideration of Appellant's direct appeal. Pursuant to instructions on remand, we address Appellant's assignments of error.

I.

{¶ 9} Appellant argues the trial court erred in failing to appoint a guardian ad litem for the SYO invocation proceedings and subsequent sentencing. Appellant did not appear with a parent or legal guardian for these proceedings, and did not object to the court's failure to appoint a guardian ad litem.

{¶ 10} R.C. 2151.281(A)(1) provides:

(A) The court shall appoint a guardian ad litem, subject to rules adopted by the supreme court, to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or unruly child when either of the following applies:
(1) The child has no parent, guardian, or legal custodian.

{¶ 11} Juv. R. 4(B)(1) similarly provides for appointment of a guardian ad litem:

(B) Guardian ad Litem; When Appointed. The court shall appoint a guardian ad litem to protect the interests of a child or incompetent adult in a juvenile court proceeding when:
(1) The child has no parents, guardian, or legal custodian[.]

{¶ 12} Subsequent to our decision reversing the instant case based on the trial court's failure to appoint Appellant a guardian ad litem, the Ohio Supreme Court held when the juvenile court fails to appoint a guardian ad litem as required by statute, and the error is unpreserved, the juvenile must demonstrate plain error pursuant to the criminal plain error standard, i.e. the error affected the outcome of the proceeding. State v. Morgan, 2017-Ohio-7565, 103 N.E.3d 784, ¶¶ 48-51.

{¶ 13} In Morgan, the court determined the juvenile had not demonstrated plain error in the trial court's failure to appoint a guardian ad litem for him in his amenability hearing. The court noted he was represented by counsel at all stages of the bindover process, and counsel advocated against bindover. Id. at ¶ 52. Further, some of the information a guardian ad litem would have provided at an amenability hearing might have duplicated the information already before the court. Id. at ¶ 53. The court further noted Morgan's mother was present for all hearings except the amenability hearing, and had participated in completion of the social-background section of the court-ordered psychological examination. Id. at ¶ 52. "At the time of the amenability hearing, all that remained was an opportunity for a presentation of arguments for or against bindover and for the court to announce its judgment." Id.

{¶ 14} In the instant case, Appellant previously entered a plea which included the SYO specification at issue in the invocation hearing. In exchange for his plea to the three counts in the complaint, the State agreed not to pursue other charges against Appellant regarding other victims under investigation at the time. At the time of his original sentencing on January 30, 2014, the legal custodian from the agency which had custody of Appellant was present in the courtroom and addressed the court. Tr. (1/30/14) p.10. Further, throughout the initial plea process and sentencing, and in the preliminary hearing regarding invocation of the SYO sentence, Appellant demonstrated maturity by often seeking clarification from the court and from his attorney when he lacked understanding of the proceedings. Tr. (1/17/14) p.10-12; Tr. (1/30/14) p. 14; Tr. (1/19/16) p.7. At the merit hearing on the motion to invoke the SYO specification, Appellant again demonstrated an ability to seek clarification from the court concerning the proceeding and to confer with counsel in order to participate in his defense. Tr. (4/12/16) p. 13, 15, 19, 35.

{¶ 15} R.C. 2152.14(A) provides as follows regarding a motion to invoke the adult portion of a dispositional sentence:

(A)(1) The director of youth services may request the prosecuting attorney of the county in which is located the juvenile court that imposed a serious youthful offender dispositional sentence upon a person under section 2152.121 or 2152.13 of the Revised Code to file a motion with that juvenile court to invoke the adult portion of the dispositional sentence if all of the following apply to the person:
(a) The person is at least fourteen years of age.
(b) The person is in the institutional custody, or an escapee from the custody, of the department of youth services.
(c) The person is serving the juvenile portion of the serious youthful offender dispositional sentence.
(2) The motion shall state that there is reasonable cause to believe that either of the following misconduct has occurred and shall state that at least one incident of misconduct of that nature occurred after the person reached fourteen years of age:
(a) The person committed an act that is a violation of the rules of the institution and that could be charged as any felony or as a first degree misdemeanor offense of violence if committed by an adult.
(b) The person has engaged in conduct that creates a substantial risk to the safety or security of the institution, the community, or the victim.

{¶ 16} R.C. 2152.14(E) provides for invocation of the adult sentence following a hearing:

(E)(1) The juvenile court may invoke the adult portion of a person's serious youthful offender dispositional sentence if the juvenile court finds all of the following on the record by clear and convincing evidence:
(a) The person is serving the juvenile portion of a serious youthful offender dispositional sentence.
(b) The person is at least fourteen years of age and has been admitted to a department of youth services facility, or criminal charges are pending against the person.
(c) The person engaged in the conduct or acts charged under division (A), (B), or (C) of this section, and the person's conduct demonstrates that the person is unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.

{¶ 17} The parties stipulated Appellant was at least fourteen years of age and had been admitted to a department of youth services facility, and he was serving the juvenile portion of a SYO dispositional sentence. At the SYO invocation hearing, the State presented evidence of three alleged rapes committed by Appellant while in the department of youth services facility. The court found two of the incidents were not proven by clear and convincing evidence. However, the third incident the court found proven by clear and convincing evidence. While Appellant did not admit or deny using force or coercion in this sexual encounter with another resident of the facility, he responded to the police inquiry by stating he would never force himself on anyone unless he was smaller than Appellant, and he stated the other youth in question was short.

{¶ 18} The State further presented evidence Appellant's conduct creates a substantial risk to the safety of the community or the victim. Appellant demonstrated lack of interest, participation and progress in sex offender treatment. He admitted to Dr. Jennifer Alpert, his psychologist in the facility, he will reoffend. He admitted to engaging in "grooming" activity with others in the facility, and discussed a desire to contact past victims and rekindle the relationships. Appellant expressed in a letter he was unsafe to be out in the community, as he knows what he would do given the opportunity.

{¶ 19} As to sentencing, the trial court initially sentenced Appellant to a term of life imprisonment with parole eligibility in fifteen years on each count of rape, to be served concurrently. However, following the SYO invocation hearing, the trial court modified the adult sentence to fifteen years to life on each count of rape, to be served concurrently.

{¶ 20} The record does not demonstrate had Appellant been represented by a guardian ad litem, the result of the proceeding would have been different. Appellant demonstrated an ability throughout the case to interact successfully with the court and counsel to ensure a complete understanding of the proceedings against him. The evidence presented at the hearing clearly supported the court's findings in support of invocation of the adult sentence. The adult portion of Appellant's sentence was modified to a lesser sentence following the SYO invocation hearing. We find appellant has not demonstrated plain error in the court's failure to appoint a guardian ad litem.

{¶ 21} The first assignment of error is overruled.

II.

{¶ 22} For the reasons stated in our August 21, 2017 opinion in the instant case, the second assignment of error is overruled.

III.

{¶ 23} In his third assignment of error, Appellant argues the court erred in classifying him as a public registry qualified juvenile offender registrant (PRQJOR) pursuant to R.C. 2152.86, as the statute has been found unconstitutional by the Ohio Supreme Court. We agree.

{¶ 24} In the case of In re C.P. , 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, the Ohio Supreme Court held R.C. 2152.86 violates procedural due process because it automatically imposes lifelong registration and notification requirements on a certain class of juvenile sex offenders called public-registry-qualified juvenile-offender registrants.["PRQJOR"] In re C.P., ¶ 86. Pursuant to R.C. 2152.86, juveniles are public-registry-qualified juvenile-offender registrants if they (1) were 14 through 17 years old when the offense was committed, (2) have been adjudicated a delinquent child for committing certain specified sexually-oriented offenses, and (3) have had a court impose on them a serious youthful offender dispositional sentence. Id. at ¶ 13. These offenders are to be classified under tier III. Id. at ¶ 85-86. Therefore, the offenders "are automatically subject to mandatory, lifetime sex-offender registration and notification requirements" because they are automatically labeled tier III offenders. Id. at ¶ 1. The court also held R.C. 2152.86 violated the Cruel and Unusual Punishment Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment because it "imposes automatic, lifelong registration and notification requirements on juvenile sex offenders tried within the juvenile system." Id. at syllabus. The court contrasted R.C. 2152.86 with sex offender classifications made "through a traditional juvenile disposition," which provides the trial court with more discretion in the imposition of the reporting and registration requirements because "the court holds a hearing to determine [the offender's] tier classification." Id. at ¶ 20. See, In re M.C., 10th Dist. Franklin No. 12AP-618, 2013-Ohio-2109, 2013 WL 2295982, ¶ 79.

{¶ 25} The trial court classified Appellant a PRQJOR in its October 5, 2016 judgment entry as follows:

On this date, at this hearing and prior to granting the State's Motion to Invoke the Serious Youthful Offender specification, this Court held a sex offender registration hearing and imposed a juvenile disposition regarding classification. Specifically, defendant is hereby ordered a Tier III public registry qualified juvenile offender registrant (PRQJOR) pursuant to 2152.86 of the Revised Code. The parties and the Court acknowledged that R.C. 2152.4(F) [sic] terminated all juvenile dispositions when an adult sentence is imposed but waived any defect to this juvenile dispositional order and this Court affirmed its intention for this juvenile order to survive the adult sentence.

{¶ 26} At the hearing, the trial court recognized the statute had been found unconstitutional:

The court had reviewed, prior to going on the record with counsel, the Public Registry Qualified Juvenile Registrant requirements. 14 years of age at the time of the act. Classified as a serious youthful offender. Adjudicated delinquent for committing any of the following, which includes 2907.02 rape. I just want to make sure I'm looking at all the notes on these. So, it would seem that [D.F.] satisfies the requirements to be registered under this class of juvenile offenders or Public Registry Qualified Juvenile Offender registrant. There has been a Supreme Court case that has found certain aspects of the law unconstitutional. So, what the court's going to do is going to find for the juvenile registration that [D.F.] is a Tier III sex offender, child victim offender registrant. Because he satisfies the requirements for Public Registry Qualified Juvenile Offender registrant, subject to community notification provisions, the court will make that finding but certainly exempt any portions of those requirements that have been found to be unconstitutional and subsequent authority interpreting that statute.
Tr.(10/4/16)p.13-14.

{¶ 27} Although from the bench the trial court expressed an intention to not run afoul of the unconstitutional provisions of R.C. 2152.86, the trial court automatically classified Appellant as a tier III public registry qualified juvenile offender because he met the requirements for such classification set forth in R.C. 2152.86. The automatic imposition of lifelong tier III reporting requirements upon a juvenile who meets the classification criteria set forth in R.C. 2152.86 is exactly what the Ohio Supreme Court found unconstitutional in In re C.P., supra.

{¶ 28} The third assignment of error is sustained.

IV.

{¶ 29} In his fourth assignment of error, Appellant argues the court erred in classifying him a tier III adult offender. We agree.

{¶ 30} The State argues pursuant to this Court's decision in State v. Reidenbach, 5th Dist. Coshocton No. 2014CA0019, 2015-Ohio-2915, 2015 WL 4448009, the adult registration statute applies to Appellant because he was given an adult sentence. Reidenbach is distinguishable from the instant case, as Reidenbach was bound over and convicted as an adult in adult court. In the instant case, Appellant was subject to an adult sentence, but was not convicted as an adult. Rather, he was adjudicated delinquent in juvenile court.

{¶ 31} R.C. 2950.01(G) includes in the definition of a tier III registrant:

(3) A sex offender who is adjudicated a delinquent child for committing or has been adjudicated a delinquent child for committing any sexually oriented offense and who a juvenile court, pursuant to section 2152.82, 2152.83, 2152.84, or 2152.85 of the Revised Code, classifies a tier III sex offender/child-victim offender relative to the offense.
(4) A child-victim offender who is adjudicated a delinquent child for committing or has been adjudicated a delinquent child for committing any child-victim oriented offense and whom a juvenile court, pursuant to section 2152.82, 2152.83, 2152.84, or 2152.85 of the Revised Code, classifies a tier III sex offender/child-victim offender relative to the current offense.

{¶ 32} As a sex offender and child-victim offender adjudicated delinquent, Appellant's classification as a tier III offender/child-victim offender must be made pursuant to R.C. 2152.82, R.C. 2152.83, R.C. 2152.84, or R.C. 2152.85. As discussed in the third assignment of error, the trial court improperly classified Appellant a tier III offender pursuant to R.C. 2152.86, which has been found unconstitutional. Because Appellant was adjudicated delinquent in juvenile court, the trial court erred in imposing on him an adult offender registration classification.

{¶ 33} The Ninth District Court of Appeals has found harmless error in the classification of a serious youth offender as an adult registrant:

[A] trial court speaks only through its journal entries." State v. Leason , 9th Dist. Summit No. 25566, 2011-Ohio-6591, 2011 WL 6740749, ¶ 8. In its entry, the juvenile court wrote that D.J. "has been convicted of a sexually-oriented offense" even though he, instead, had been adjudicated delinquent for committing rape and murder. The court went on, however, to order D.J. "to be adjudicated a Tier III Sex Offender * * *." The definition of a "Tier III sex offender * * *" includes "[a] sex offender who * * * has been adjudicated a delinquent child for committing any sexually oriented offense and who a juvenile court, pursuant to section 2152.82, 2152.83, 2152.84, or 2152.85 * * * classifies a tier III sex offender * * * relative to the offense." R.C. 2950.01(G)(3). Although the juvenile court used the word "adjudicate" in its entry instead of "classify," the difference between the two words in this context is not significant. In addition, D.J. has not identified any difference in the requirements placed on a Tier III sex offender who receives that designation automatically for being convicted of certain offenses as an adult and juveniles who receive that designation under Section 2950.01(G)(3). Accordingly, upon review of the juvenile court's entry, we conclude that any error in the court's word choice was harmless. D.J.'s fifth assignment of error is overruled.
In re D.J. , 9th Dist. Summit, 2018-Ohio-569, 106 N.E.3d 834, ¶ 23.

{¶ 34} The juvenile in In re D.J. had been properly classified a tier III juvenile offender pursuant to R.C. 2950.01(G)(3). Thus, the additional classification as an adult offender was superfluous, as the registration and reporting requirements were identical to the juvenile registration and reporting requirements for a tier III offender. In the instant case however, Appellant was not properly classified a tier III juvenile offender pursuant to R.C. 2950.01(G)(3), as the trial court incorrectly applied R.C. 2952.86, which had been declared unconstitutional. Accordingly, the imposition of the adult classification is not harmless.

{¶ 35} The fourth assignment of error is sustained.

V.

{¶ 36} Appellant argues counsel was ineffective for failing to raise his improper classification as a PRQJOR and his improper classification as an adult tier III offender. Because we have sustained Appellant's assignments of error relative to his classification, this assignment of error is overruled as being moot.

{¶ 37} The judgment is reversed as to Appellant's tier III juvenile and adult registration classification and remanded for re-classification in accordance with law and this opinion. The judgment is affirmed in all other respects.

Delaney, J. and Wise, Earle, J., concur

      A full rendition of the underlying facts giving rise to Appellant's adjudication, disposition and sentence is unnecessary for resolution of this appeal.

      A State Trooper conducted an investigation into Appellant's conduct while at DYS, and substantiated sexual conduct occurred between Appellant and another DYS resident. 6/24/2016 Transcript. P. 207.

      R.C. 2152.14(E)(2) allows the court to modify the adult sentence to consist of any lesser prison term that could be imposed for the offense.