author: EILEEN A. GALLAGHER, P.J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Javonte HODGES, Defendant-Appellant
    No. 105789
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 14, 2017
    Javonte Hodges, pro se, Inmate No. 634308, Warren Correctional Institution, 5787 State Route 63, P.O. Box 120, Lebanon, Ohio 45036, APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Frank Romeo Zeleznikar, Brett Hammond, Assistant Prosecuting Attorneys, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: E.A. Gallagher, P.J., McCormack, J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   EILEEN A. GALLAGHER, P.J.:

{¶ 1} Defendant-appellant Javonte Hodges appeals, pro se, from the trial court's denial of his postconviction motion to withdraw his guilty pleas. For the reasons that follow, we affirm the trial court's judgment.

Factual and Procedural Background

{¶ 2} On May 21, 2012, a Cuyahoga County Grand Jury indicted Hodges on two counts of aggravated murder, two counts of aggravated robbery, one count of improperly handling firearms in a motor vehicle and one count of having weapons while under disability. The aggravated murder and aggravated robbery counts included one-year and three-year firearm specifications. The charges arose out of a March 14, 2012 incident in which Hodges, along with two co-defendants, Deante Kidd and John Johnson, robbed, shot and killed Christopher Johnson as a result of a drug deal "gone bad." Hodges shot the victim in the back of the head at close range while the victim was driving a vehicle. See State v. Hodges , 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, 2013 WL 6047189, ¶ 5 (" Hodges I ").

{¶ 3} In August 2012, the trial court referred Hodges to the court psychiatric clinic to determine whether he was sane at the time of the act and competent to stand trial. In September 2012, defense counsel stipulated to the court psychiatric clinic's findings that Hodges was sane at the time of the act and competent to stand trial.

{¶ 4} In December 2012, Hodges and the state reached a plea agreement. Hodges pled guilty to an amended count of murder with a three-year firearm specification and to one count each of aggravated robbery with a three-year firearm specification, improperly handling firearms in a motor vehicle and having weapons while under disability. In exchange for Hodges' guilty pleas, the one-year firearm specifications were deleted and the remaining counts were nolled.

{¶ 5} The murder, aggravated robbery and improperly handling firearms in a motor vehicle counts were merged and the state elected to proceed to sentencing on the murder count. The trial court sentenced Hodges to an aggregate prison term of 20 years to life that incorporated three years on the firearm specification, to be served prior to and consecutively to a sentence of 15 years to life on the murder charge, and 24 months on the having weapons while under disability count, to be served consecutively to the sentence on the murder count.

{¶ 6} Hodges appealed his sentences, arguing that the trial court had failed to properly consider and apply the principles and purposes of sentencing under R.C. 2929.11 and the sentencing factors under R.C. 2929.12, had failed to merge the murder and having weapons while under disability counts and had failed make the necessary findings for the imposition of consecutive sentences pursuant to R.C. 2929.14(C)(4). Hodges I , 2013-Ohio-5025, at ¶ 6. Finding that the trial court did not comply with R.C. 2929.14(C)(4), this court reversed Hodges' consecutive_sentences and remanded for resentencing. Id. at ¶ 26-29. After the trial court sentenced Hodges to consecutive sentences on remand, Hodges once again appealed the consecutive sentences. State v. Hodges , 8th Dist. Cuyahoga No. 101145, 2014-Ohio-4690, 2014 WL 5409133, ¶ 1 (" Hodges II "). This court affirmed the judgment, concluding that the trial court had made the necessary findings to support the imposition of consecutive sentences on the record, but remanded the case for the trial court to issue a nunc pro tunc sentencing journal entry that complied with State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. Hodges II at ¶ 16.

{¶ 7} On March 9, 2016-more than three years after he entered his guilty pleas-Hodges filed, pro se, a motion to withdraw his pleas. He argued that his guilty pleas were not made knowingly, intelligently and voluntarily because he was "under the heavy influence of mind-altering drugs" at the time he entered his guilty pleas and did not receive effective assistance of counsel. Hodges contended that his trial counsel was ineffective because he:

"fail[ed] to discuss the facts of the case with him; did not interview potential witnesses; disregarded information identifying the true offender(s); told the defendant that he would be found guilty and sentenced to the maximum sentence regardless of whether he had committed the crime(s); failed to discuss defense tactics, strategies or the nature and effect of his guilty pleas(s) and made no effort to produce mitigation evidence at the sentencing hearing(s)."

He also claimed that defense counsel had "promised" him that he would receive a plea deal to a reduced charge of involuntary manslaughter "as his co-defendants received such." No affidavits or other evidentiary materials were submitted in support of the motion.

{¶ 8} On June 14, 2016, Hodges filed a "supplemental motion" to withdraw his guilty pleas citing additional legal authority and purporting to attach an affidavit from codefendant Kidd in support of his motion. No such affidavit was attached.

{¶ 9} The state opposed Hodges' motion to withdraw his guilty pleas, arguing that the motion lacked evidentiary support, was untimely and was barred by res judicata. The trial court summarily denied Hodges' supplemental motion on November 1, 2016. On April 19, 2017, the trial court summarily denied Hodges' original motion to withdraw his guilty pleas.

{¶ 10} Hodges appealed from the trial court's April 19, 2017 order, raising the following assignments of error for review:

ASSIGNMENT OF ERROR NO. 1:
Counsel's ineffectiveness in the plea bargain phase.
ASSIGNMENT OF ERROR NO. 2:
Counsel was ineffective for not bringing forth appellant's well documented mental health issues.

Law and Analysis

{¶ 11} In his first assignment of error, Hodges contends that his trial counsel misled him into believing that he would be pleading guilty to involuntary manslaughter rather than to murder. He contends that, were it not for the ineffective assistance of his trial counsel, he would have accepted a plea offer for "a definite term of imprisonment in this matter of eleven years" and he, therefore, should have been permitted to withdraw his guilty pleas and accept the state's "original plea offer" of involuntary manslaughter .

Motion to Withdraw Guilty Pleas

{¶ 12} Motions to withdraw guilty pleas are governed by Crim.R. 32.1. Crim.R. 32.1 provides: "A motion to withdraw a plea of guilty may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." Accordingly, a defendant seeks to withdraw a guilty plea after sentence has been imposed, he or she must demonstrate "manifest injustice." State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus.

{¶ 13} Manifest injustice is a "clear or openly unjust act," State ex rel. Schneider v. Kreiner , 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), that is "evidenced by 'an extraordinary and fundamental flaw in the plea proceeding,' " State v. McElroy , 8th Dist. Cuyahoga Nos. 104639, 104640 and 104641, 2017-Ohio-1049, 2017 WL 1091642, ¶ 30, quoting State v. Hamilton , 8th Dist. Cuyahoga No. 90141, 2008-Ohio-455, 2008 WL 324791, ¶ 8 ; see also State v. Stovall, 8th Dist. Cuyahoga No. 104787, 2017-Ohio-2661, 2017 WL 1742998, ¶ 17 (" 'Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.' "), quoting State v. Williams , 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, 2004 WL 2616430, ¶ 5. The determination of whether the defendant has demonstrated manifest injustice is within the sound discretion of the trial court. State v. Vinson , 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 42 (8th Dist.), citing Smith at paragraph two of the syllabus. We will not reverse a trial court's ruling on a postsentence motion to withdraw a guilty plea unless the court abused its discretion. Id. To constitute an abuse of discretion, the trial court's decision must be unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

Ineffective Assistance of Counsel

{¶ 14} Under certain circumstances, ineffective assistance of counsel can constitute a manifest injustice warranting a withdrawal of a guilty plea. See, e.g., State v. Montgomery , 8th Dist. Cuyahoga No. 103398, 2016-Ohio-2943, 2016 WL 2757703, ¶ 4. However, where a defendant enters a guilty plea, he or she waives ineffective assistance of counsel except to the extent that the ineffective assistance of counsel caused the defendant's plea to be less than knowing, intelligent and voluntary. Vinson at ¶ 30 ; State v. Williams , 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, 2014 WL 3866137, ¶ 11. A defendant who has entered a guilty plea can prevail on a claim of ineffective assistance of counsel only by demonstrating (1) deficient performance by counsel, i.e., that counsel's performance fell below an objective standard of reasonable representation, that caused the defendant's guilty plea to be less than knowing, intelligent and voluntary and (2) that there is a reasonable probability that, but for counsel's deficient performance, the defendant would not have pled guilty to the offenses at issue and would have, instead, insisted on going to trial. Williams at ¶ 11, citing State v. Xie , 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ; see also Strickland v. Washington , 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Strickland at 694, 104 S.Ct. 2052. Hodges has not met his burden in this case.

{¶ 15} First, it is not clear from Hodges' brief (or the motion he filed below) what Hodges' trial counsel allegedly said or did that caused Hodges to believe that he would be pleading guilty to involuntary manslaughter rather than to murder. However, to the extent that Hodges' ineffective assistance of counsel arguments could have been raised in his prior direct appeal based on facts in the record, his arguments are barred by res judicata. See, e.g., State v. Kraatz , 8th Dist. Cuyahoga No. 103515, 2016-Ohio-2640, 2016 WL 1600325, ¶ 9 ("In a postconviction proceeding, res judicata bars the assertion of claims against a valid, final judgment of conviction that have been raised or could have been raised on appeal. * * * Courts have repeatedly applied the doctrine of res judicata to postconviction motions to withdraw a guilty plea under Crim.R. 32.1."); see also State v. Congress , 8th Dist. Cuyahoga No. 102867, 2015-Ohio-5264, 2015 WL 9239097, ¶ 6.

{¶ 16} To the extent that Hodges' ineffective assistance of counsel arguments are based on discussions with his attorney or others that would require evidence outside the record, they would not be barred by res judicata. However, Hodges failed to attach affidavits or any other evidence to support the allegations raised in his motion to withdraw his guilty pleas when he filed it below. Without evidence to support his claims, Hodges failed to establish manifest injustice warranting the withdrawal of his guilty pleas.

{¶ 17} Furthermore, the transcript from the plea hearing belies Hodges' claims that he was misled into pleading guilty to murder rather than involuntary manslaughter. At the outset of the plea hearing, the state indicated that Hodges would be pleading guilty to an "amended charge of murder," as well as charges of aggravated robbery, improperly handling firearms in a motor vehicle and having weapons while under disability and identified the potential penalties associated with each count. Defense counsel confirmed the terms of the plea agreement and stated that, based on his conversations with Hodges, "[he] understands that the aggravated murder is going to be reduced to a murder which means that it's a life sentence, he understands it. He understands that he's eligible in 25 years plus three years for the gun. Therefore, it's a minimum sentence of 18 to life on that count." The trial judge then proceeded with the plea colloquy. During the plea colloquy, he trial court identified each of the offenses to which Hodges would be pleading guilty and again outlined the penalties he faced on each count, including that Hodges faced a minimum sentence of 18 years to life on the murder charge with the three-year firearm specification. Hodges indicated that he understood this.

{¶ 18} Hodges confirmed that no threats, promises or inducements had been made to him by anyone to cause him to enter his guilty pleas, stated that he understood "everything" and indicated that he was satisfied with the services rendered by his trial counsel. Hodges also acknowledged that his guilty pleas were voluntary based on his "own free will and desire."

{¶ 19} Accordingly, the trial court did not abuse its discretion in denying Hodges' motion to withdraw his guilty pleas. Hodges' assignments of error are overruled.

Failure to Bring Mental Health Issues to the Attention of the Trial Court

{¶ 20} In his second assignment of error, Hodges contends that his trial counsel was ineffective for failing to bring his "well-documented mental health issues" to the attention of the trial court. He asserts that if the findings from the court psychiatric clinic's report had been "properly placed before a jury," it would have "mitigated the sentence" imposed. Hodges' arguments are meritless.

{¶ 21} First, Hodges did not specifically raise this issue below. It is well-established that, except for a claim of plain error-which has not been made here-an appellant cannot raise an issue for the first time on appeal. See, e.g., State v. Phillips , 74 Ohio St.3d 72, 93, 656 N.E.2d 643 (1995) ("An issue is waived, absent a showing of plain error, if it is not raised at the trial level."). Second, Hodges is appealing from the trial court's denial of his motion to withdraw his guilty pleas, not his sentences. Third, because Hodges could have raised the issue in his prior direct appeal, it is barred by res judicata. See, e.g., Kraatz , 2016-Ohio-2640, at ¶ 9. Finally, it is clear from the record that the trial court received and reviewed the report from the court psychiatric clinic prior to sentencing Hodges in this case.

{¶ 22} Based on the record before us, we cannot say that the trial court abused its discretion in denying Hodges' motion to withdraw his guilty pleas. Hodges' assignments of error are overruled.

{¶ 23} Judgment affirmed.

TIM McCORMACK, J., and FRANK D. CELEBREZZE, JR., J., CONCUR

      There is no evidence in the record that the state offered Hodges a plea deal that involved a plea to a charge of involuntary manslaughter.

      Hodges attached two affidavits from codefendant Johnson, dated May 10, 2017, to his appellate brief. However, these affidavits were not part of the record below. A party cannot add to the record on appeal by attaching to its brief affidavits or other materials that were not part of the record below. See, e.g., State v. Workman , 8th Dist. Cuyahoga No. 53581, 1988 WL 35272, at *4 (Mar. 24, 1988) ("affidavits attached to a party's appellate brief are not part of the record on appeal and cannot be considered by a reviewing court"), citing State v. Tate , 59 Ohio St.2d 50, 51, 391 N.E.2d 738 (1979), fn.1 ; Lisboa v. Lisboa , 8th Dist. Cuyahoga No. 95673, 2011-Ohio-351, 2011 WL 319956, ¶ 10 ("This court cannot consider matters dehors the record. * * * An exhibit attached to an appellate brief and not filed with the trial court is not part of the record."); see also App.R. 9(A). Accordingly, we will not consider Johnson's affidavits.

      With his notice of appeal, Hodges filed, pro se, a statement and praecipe stating that he did not intend to file a transcript of all of the trial court proceedings and that there were "no transcripts needed in this matter." The state asserts that, because Hodges did not file a transcript in this appeal, we should presume that Hodges was "adequately advised of the charges he was pleading to and that he was satisfied with the representation of his trial counsel." We note, however, that the transcript from the plea hearing was part of the record in Hodges' prior appeal of his consecutive sentences in Hodges I and is, therefore, available to the court. Further, the state specifically referenced the transcript in its opposition to Hodges' motion to withdraw his guilty pleas. As explained above, even if we were to consider the transcript of the plea hearing, it would not change the result here.

      As noted above, Hodges also argued below-without any evidentiary support-that his guilty pleas should be vacated because he was on "mind-altering drugs" at the time he entered his guilty pleas and his trial counsel failed to adequately investigate his case. Hodges abandoned these arguments on appeal. However, even if he had not abandoned them, they would not have constituted grounds for vacating his guilty pleas for the same reasons as Hodges' involuntary manslaughter argument, i.e., the res judicata bar and lack of evidentiary support.


source: Caselaw Access Project

author: MELODY J. STEWART, J.:

license: Public Domain

text:
    Eleanor PACZKO, Plaintiff-Appellant v. OHIO DEPARTMENT OF JOB AND FAMILY SERVICES, Defendant-Appellee
    No. 105783
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 14, 2017
    Richard A. Myers, Jr., Richard A. Myers, Jr. & Associates, L.L.C., 4700 Rockside Road, Suite 620, Independence, OH 44131, ATTORNEY FOR APPELLANT
    Michael DeWine, Ohio Attorney General, Rebecca L. Thomas, Assistant Attorney General, Health and Human Services Section, 30 East Broad Street, 26th Floor, Columbus, OH 43215, ATTORNEYS FOR APPELLEE
    BEFORE: Stewart, J., McCormack, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, J.:

{¶ 1} Plaintiff-appellant Eleanor Paczko appeals from a decision of the court of common pleas that upheld an Ohio Department of Job and Family Services administrative decision not to include certain transferred resources when it recalculated her restricted Medicaid coverage period ("RCMP"). Finding no error in the trial court's decision, we affirm.

{¶ 2} Although Medicaid is a program based on financial need, persons with substantial personal assets can make themselves eligible for benefits without first spending down their assets. One way of doing so is called the "half-loaf" method. Under this method, a person needing nursing home care gifts all excess personal assets to heirs, applies for Medicaid, and is rejected for Medicaid because the gift occurred during the applicable look-back window (in this case, 60 months). This starts a penalty period in which the person is ineligible for Medicaid benefits. The person's heirs then gift back the amount of money needed to pay for the person's nursing home expenses that are not covered until the penalty period is over. Doing so cuts the penalty period in half and allows the heirs to keep any remaining funds.

{¶ 3} Paczko used a reverse half-loaf method when applying for Medicaid benefits. The undisputed facts show that she applied for Medicaid benefits with the Ohio Department of Job and Family Services (the "agency") on May 4, 2015. In her application, Paczko disclosed that she transferred $146,122 to an irrevocable trust for her children during the look-back period. Considering this an improper transfer of assets during the look-back period, the agency found Paczko eligible for Medicaid benefits and determined an RMCP of 23.09 months, running from April 2015 through part of March 2017. During the RCMP, Paczko's children returned $89,227.38 directly to Paczko. In May 2016, Paczko requested a recalculation of the RCMP based on the return of money. The agency granted a partial recalculation that changed the RCMP to 18.2 months, but declined to fully recalculate the RCMP because all of Paczko's funds had not been returned.

{¶ 4} Importantly, the agency declined to consider the disposition of any funds returned after September 29, 2015. The agency noted that effective September 29, 2015, R.C. 5163.30(C)(3) had been amended to state:

no waiver of any part of the period of ineligibility shall be granted if the amount the individual or individual's spouse receives is less than the difference between what the individual or individual's spouse received for the assets and the fair market value of the assets.

{¶ 5} Under the agency's interpretation of the amended statute, there was no longer a recalculation period for partial, returned funds-recalculation was allowed only if all of the improperly transferred funds had been returned, in effect, eliminating the half-loaf method.

{¶ 6} Paczko appealed that decision. She acknowledged that R.C. 5163.30(C)(3) had been amended, but claimed that Ohio Adm.Code 5160:1-3-07(K)(3), which implemented amended R.C. 5163.30(C)(3), had not been amended until January 1, 2016. She argued that the administrative rule in place at the time amended R.C. 5163.30(C)(3) went into effect-former Ohio Adm.Code 5160:1-3-07(M)(4) -controlled over the statute. That rule stated that "[w]hen only part of the asset or its equivalent value is returned, a restricted medicaid coverage period can be modified but not eliminated." Paczko argued that the former version of the administrative rule in effect at the time she made her application for a recalculation of the RCMP should have applied.

{¶ 7} A staff hearing officer denied the appeal, and that decision was upheld in a further appeal to the Ohio Department of Job and Family Services. The agency concluded:

While the Ohio Revised Code allows for the administrative agencies to create rules [sic] supplement the statutes and address activities that are numerous, technical and change so often that they cannot be effectively enforced by statute alone, that does not mean that a statute that is passed is not in effect until a subsequent rule is passed. The statute is in effect as of the date provided for in the statute and in this case that date is September 29, 2015.

{¶ 8} Paczko appealed to the court of common pleas. The court found that for a period of time between the amendment to R.C. 5163.30(C)(3) and adoption of Ohio Adm.Code 5160:1-3-07(K)(3), there was a conflict of law between the amended statute and the administrative rule that remained in place until January 1, 2016, when Ohio Adm.Code 5160:1-3-07(K)(3) became effective. Finding that the amended statute controlled over the yet-to-be-effective administrative rule, the court held that the agency correctly refused to consider the reconveyances that took place after September 29, 2015, when recalculating Paczko's restricted coverage period.

{¶ 9} Paczko's two assignments of error are interrelated. She claims that the court erred by finding a conflict of law between R.C. 5163.30(C)(3) and Ohio Adm.Code 5160:1-3-07(K)(3), and that the court failed to address the issue of whether the agency made the correct decision to apply amended Ohio Adm.Code 5160:1-3-07(K)(3) to a Medicaid application filed and pending before the effective date of the amended regulation.

{¶ 10} Paczko's argument suggests that the administrative regulation has primacy over a statute. This is incorrect. As a general proposition, administrative rules or regulations derive from statutory authority, so they cannot supersede statutes with which they conflict. State ex rel. Kroger Co. v. Stover , 31 Ohio St.3d 229, 235, 510 N.E.2d 356 (1987) ; State v. Osborne , 4th Dist. Jackson No. 05CA2, 2005-Ohio-6610, 2005 WL 3407974, ¶ 17. This is because "administrative rules do not dictate public policy, but rather expound upon public policy already established by the General Assembly in the Revised Code." Chambers v. St. Mary's School , 82 Ohio St.3d 563, 567, 697 N.E.2d 198 (1998). There is no authority "which requires Ohio courts to place an administrative rule on equal footing with a statute when deciding whether a statute potentially conflicts with an administrative rule." Kelly v. Accountancy Bd. , 88 Ohio App.3d 453, 458, 624 N.E.2d 292 (10th Dist.1993). The September 29, 2015 amendment of R.C. 5163.30(C)(3) eliminated the half-loaf method. That the administrative rules did not reflect that change for several months does nothing to diminish the force and effect of the amended statute.

{¶ 11} Paczko also argues that application of either the amended statute or amended rule to her request constitutes an impermissible retroactive application of the law because her Medicaid application had been filed and was pending before either the law or the rule changed.

{¶ 12} The agency applied the amended statute only to Paczko's later request for a recalculation of the RCMP-a request she made after the law had been amended. We thus reject Paczko's argument that her initial Medicaid application, made before the amendment of R.C. 5163.30(C)(3), vested her rights such that the amendment became a retroactive application of the law. The constitutional bar against the passage of retroactive laws, Ohio Constitution, Article II, Section 28, applies to rights vested before a statute comes into force. State ex rel. Shady Acres Nursing Home, Inc. v. Rhodes , 7 Ohio St.3d 7, 10, 455 N.E.2d 489 (1983). Paczko had no vested right to a continuation of the law as it existed at the time she made her initial application for Medicaid benefits. (Citations omitted.) Harding Pointe, Inc. v. Ohio Dept. of Job & Family Servs. , 10th Dist. Franklin, 2013-Ohio-4885, 1 N.E.3d 804, ¶ 40 (rejecting argument by a Medicaid provider that it had acquired a vested right to continue to be paid according to a previous Medicaid reimbursement system). The assigned errors are overruled.

{¶ 13} Judgment affirmed.

TIM McCORMACK, P.J., and PATRICIA ANN BLACKMON, J., CONCUR.

      Although Ohio's Medicaid program is administered by the Ohio Department of Medicaid, the Ohio Department of Job and Family Services acts as the Medicaid department's agent for administrative appeals.


author: HORTON, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Clifford YOUNG, Jr., Defendant-Appellant.
    No. 15AP-1144
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 14, 2017
    On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard.
    On brief: Timothy Young, Ohio Public Defender, and Terrence K. Scott, for appellant. Argued: Terrence K. Scott.
    DECISION
   HORTON, J.

{¶ 1} Defendant-appellant, Clifford Young, Jr., appeals from a December 18, 2015 judgment of the Franklin County Court of Common Pleas finding him guilty of aggravated robbery with a firearm specification, robbery with a firearm specification, felonious assault with a firearm specification, and having weapons while under disability ("WUD"). For the following reasons, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On December 4, 2013, appellant was indicted for aggravated robbery with a firearm specification (Count 1 of the indictment), robbery with a firearm specification (Count 2 of the indictment), robbery with a firearm specification (Count 3 of the indictment), felonious assault with a firearm specification (Count 4 of the indictment), and having weapons while under a disability (Count 5 of the indictment). (Dec. 4, 2013, Indictment.)

{¶ 3} The case proceeded to trial in September 2015. However, the jury was unable to reach a verdict and the trial court declared a mistrial. (Sept. 14, 2015 Entry.) On November 9, 2015, a second trial commenced. As pertinent to this appeal, the facts are as follows. The victim, B.B., testified that she worked as a prostitute. Periodically, she would come from Lorain County to the Columbus area and rent a hotel room for up to one week to provide sex services. In January 2013, B.B. rented a room for a one-week stay at the Red Roof Inn on Brice Road in Reynoldsburg. During the early morning hours of January 11, 2013, B.B. was renting room 231 when she received a call from a person she believed to be a black male inquiring about her services. The two exchanged five phone calls between 1:38 a.m. and 2:22 a.m. Eventually, a black man arrived at her hotel room that she had never seen before and whose voice sounded like the man that called her. She identified appellant as the man who called her and as her assailant.

{¶ 4} B.B. testified regarding the altercation as follows. Appellant entered the room and looked around to ensure no one else was in the room. He asked for a cigarette and she gave him one. Appellant pulled out a gun and ordered her to give him her money. He cocked the gun and, when she realized he was serious, she grabbed the gun from him and went into the fetal position with the gun underneath her arm. Appellant then got on top of her and began punching her. She attempted to pull the trigger of the gun but it did not fire. Appellant hit and bit her, broke some of her fingernails, and tried to burn her in the face or eyes with the cigarette, but she was able to block it between her shoulder, chin, and neck. At this point, appellant was able to gain control of the gun and he used it to strike B.B. repeatedly, even after she begged for him to stop. B.B. told appellant where the money was located and he took $811, her cellphone, and a computer. He left the room for a short time and returned to take additional items. Eventually he left for good and B.B. called the Columbus Police Department for help at 2:32 a.m.

{¶ 5} The police and emergency squad arrived and she was taken to Grant Hospital. B.B. suffered numerous lacerations, a broken nose, a bite mark on her right arm, and a cigarette burn. She required stitches, plastic surgery, and had a metal pin placed in her finger. B.B. was released from the hospital on the evening of January 12, 2013 with a discharge diagnosis of a concussion, nasal fracture, a closed fracture of the distal phalanx of the finger, and facial cuts.

{¶ 6} Columbus Police Officer Ryan Van Fossan testified that he was dispatched to the scene at 2:32 a.m. When he arrived B.B. was covered in blood and he did not observe any indications that she was under the influence of drugs or alcohol. B.B. described her assailant as a black male weighing approximately 250 pounds. Detective Kevin Jackson investigated the crime scene and noted blood splatter on the mirror. The detective also did not see any evidence of illegal drug use or drug paraphernalia in the room.

{¶ 7} Columbus Police Department investigators swabbed the hotel room telephone, collected fingernail tips and a partial cigarette butt, and submitted a DNA test request for the same. The telephone swab DNA was consistent with B.B. (State's Ex. E5.) DNA from the fingernail tips matched B.B. and at least one other person, however, the appellant was excluded as a contributor. (State's Ex. E5.) DNA from the cigarette butt matched appellant. (State's Ex. E2.)

{¶ 8} On October 27, 2013, Detective Jason Wood acted as a blind administrator in showing a photo lineup to B.B. As such, he did not know which of the six black males pictured was the suspect. B.B., as well did not know which of the men pictured, if any, had been identified as a suspect. At this time, she did not know appellant's name, nor that his DNA had been matched to the cigarette.

{¶ 9} When Detective Wood administered the photo lineup, he did not realize that two of the photos, Nos. 4 and 6, were the same person, albeit different photos. Appellant's photo, No. 3, was only featured once. The detective testified that placing two of the same people in the lineup was a mistake that should have been caught by the computer system that generates the photo arrays. He also testified that he could not tell that they were the same person by looking at the array. B.B. never considered the photos in position Nos. 4 or 6 as possibilities to be the perpetrator. She focused on photos of two others, Nos. 2 and 3. B.B. told police she was 95 percent sure that No. 3, who was appellant, was the perpetrator. She noted that appellant looked heavier in the photo than he did when she saw him.

{¶ 10} B.B. also told investigators that the perpetrator had called her from a phone number starting with 614-44. Because her cellphone was stolen in the robbery, she could not look at it to find the remaining 4 numbers. Detective James Howe presented testimony derived from unauthenticated AT & T cellphone records. The state did not seek to introduce the AT & T records themselves but, rather, the analysis of information received from AT & T by way of Detective Howe's "Cellular Review." (State's Ex. I.) Detective Howe was admitted as an expert in the field of cellular phones, forensics, and analysis, without objection. Trial counsel did not object to the introduction of the records, or Detective Howe's Cellular Review, i.e., State's Ex. I.

{¶ 11} Detective Howe described that a court order for B.B.'s cellphone records was obtained and, once received, he analyzed the records, as well as the area, and prepared a report. The information from B.B.'s cellphone records demonstrated that B.B. did receive several calls from a number starting 614-44, specifically 614-441-2949 ("target number"), just as she had told detectives. Detective Howe's Cellular Report stated that during the date and time of the incident the target phone accessed AT & T towers which were in the vicinity of the crime scene and there were five contacts between the target phone and B.B.'s phone between 1:38 a.m. and 2:22 a.m. on January 11, 2013.

{¶ 12} The state readily admitted throughout the trial, starting with opening statements, that the AT & T records did not connect appellant to this phone, i.e., nothing in the AT & T records named appellant as a liable party or user of the phone. Detective Howe testified that the AT & T records showed the liable party as AT & T with a Georgia address and the user as AT & T with a Morse Road, Columbus, Ohio address. However, as stated above, B.B.'s testimony linked that phone number to appellant.

{¶ 13} Appellant agreed to the admission of the cell phone analysis without objection initially but later asked the court to clarify for the jury that the phone was never linked by the AT & T records to appellant. The judge gave that following clarifying instruction to the jury:

Before we get to closing arguments there's just two sort of a limiting instruction that I just want to state to you as you are, again, considering closing arguments and ultimately evaluating the evidence.
You saw testimony regarding the cellular phone. In the evidence it is indicated suspect phone. Okay. Suspect phone refers to the phone number which was received by [B.B.].
You also saw testimony regarding suspect home. Suspect home refers to the home of the defendant and there's not that the suspect home and suspect phone are connected, okay? There's not testimony in the record in that regard.

(Tr. at 817-18.)

{¶ 14} Appellant testified and told a completely different story. He admitted to being a drug dealer. He testified that on January 10, 2013, at around 8:00 p.m., which is approximately six and one-half hours prior to the assault and robbery, he received a call from a customer, a prostitute named Alex, who wanted to buy drugs. Alex asked him to meet her at the Red Roof Inn on Brice Road in room 231. When he arrived and entered the room, in addition to his customer Alex, there was B.B. and a man, neither of whom appellant knew or had previously seen. Appellant stated that he was in the room for ten minutes and smoked a cigarette that he extinguished in a soda cap, thereby explaining how his DNA was on a cigarette in B.B.'s room. He claims that he sold Alex two Percocet, crack, and then departed the room and did not return. Appellant testified that the 614-441-2949 was not his phone and that he made no calls to B.B. He denied hitting, beating, or robbing her.

{¶ 15} Appellant was found guilty of aggravated robbery with a firearm specification (Count 1), robbery with a firearm specification (Count 2), felonious assault with a firearm specification (Count 4), and having weapons while under disability (Count 5). The court merged Counts 1 and 2, and the state elected that appellant be sentenced on Count 1. Appellant was sentenced to 17 years in prison to be served consecutively to his sentences in three other cases. (Dec. 18, 2015 Jgmt. Entry.)

II. ASSIGNMENTS OF ERROR

{¶ 16} Appellant appeals, assigning the following errors:

[I.] The State failed to establish operability to support the firearm specifications. Therefore, the convictions and sentences for the firearm specifications violated Clifford L. Young, Jr.'s rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.
[II.] The State failed to establish that a firearm was present or operability to support the firearm specification(s) related to the second altercation. Therefore, the convictions and sentences for the specification(s) related to the second assault violated Clifford L. Young, Jr.'s rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.
[III.] The trial court committed plain, reversible error when it admitted unauthenticated cellphone records when that testimonial evidence was key in placing Clifford L. Young, Jr. at the scene of the crime, in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution.
[IV.] Clifford L. Young, Jr. was denied the effective assistance of counsel at his trial, to which he was entitled under the Sixth and Fourteenth Amendments to the United States Constitution. Mr. Young's counsel failed to object to Det. Howe's testimony about unauthenticated cellphone records. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.E.2d 177 (2004).
[V.] The State's repeated mischaracterization of the AT & T-owned cellphone denied Clifford Young, Jr. a fair trial and due process of law, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.
[VI.] The trial court committed plain error when it failed to instruct the jury on photo-lineup noncompliance as required by R.C. 2933.83(C)(3), in violation of Clifford L. Young, Jr.'s Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.
[VII.] Trial Counsel provided ineffective assistance of counsel by failing to request an R.C. 2933.83(C)(3) jury instruction. Sixth and Fourteenth Amendments, United States Constitution, and Article I, Section 10 of the Ohio Constitution.

III. ASSIGNMENTS OF ERROR ONE AND TWO

A. Sufficient evidence supports the firearm specifications

{¶ 17} In assignment of error one, appellant argues that the state failed to present sufficient evidence to prove operability of the firearm to support the firearm specifications. The issue of sufficiency of the evidence presents a purely legal question for the court regarding the adequacy of the evidence. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The Supreme Court has provided the following test for judging the sufficiency of the evidence:

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 18} A firearm specification may be proven without the actual presentation of direct or scientific evidence that the firearm was operable. The Supreme Court has stated that "it should be abundantly clear that where an individual brandishes a gun and implicitly but not expressly threatens to discharge the firearm at the time of the offense, the threat can be sufficient to satisfy the state's burden of proving that the firearm was operable or capable of being readily rendered operable." Thompkins at 383-84, 678 N.E.2d 541.

{¶ 19} In State v. Pride , 10th Dist. No. 11AP-55, 2011-Ohio-6055, 2011 WL 5873378, ¶ 19-20, this court held that firearm operability could be inferred where the testimony established that the suspect held a gun to a driver's head, hit him in the face with the gun, demanded the driver exit the car, and looked like he was going to shoot the victims. See also , State v. Dutton , 10th Dist. No. 09AP-365, 2009-Ohio-6120, 2009 WL 4018529 (firearm operability inferred where the record contained evidence that the defendant barged into a house, pointed a gun at the victim, and then began to beat him with it).

{¶ 20} In the present action, B.B. testified that appellant pulled a gun out, demanded money, and then repeatedly struck her with the gun in the head, shoulders and upper body in furtherance of the aggravated robbery and felonious assault. (Nov. 12, 2015 Tr. at 292-95.) In addition, Detective Jackson testified that the blood splatter on the mirror in the hotel room was consistent with someone being "pistol whipped." (Nov. 10, 2015 Tr. at 151.) As such, sufficient evidence exists to support the guilty verdicts as to the firearm specifications. Appellant's first assignment of error is overruled.

B. No second assault

{¶ 21} In assignment of error two, appellant argues that the state failed to establish that a firearm was present or operable in order to support the firearm specification(s) related to the second altercation and, therefore, the convictions and sentences for the specification(s) related to the second assault violated appellant's rights. The state did not indict appellant for two assaults. Appellant was convicted of one count of felonious assault. Therefore, there is no conviction that relates to a second assault to consider. Appellant's second assignment of error is overruled.

IV. ASSIGNMENT OF ERROR THREE-Cellphone Records-No Plain Error

{¶ 22} Appellant argues that the trial court committed plain, reversible error when it admitted unauthenticated cellphone records. Under Crim.R. 52(B), "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." By its terms, the rule places three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial. First, there must be an error, i.e., a deviation from a legal rule. State v. Hill , 92 Ohio St.3d 191, 200, 749 N.E.2d 274 (2001). Second, the error must be plain, i.e., an error must be an "obvious" defect in the trial proceedings. State v. Sanders , 92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001). Third, the error must have affected substantial rights, i.e., the trial court's error must have affected the outcome of the trial. State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The Supreme Court has acknowledged the discretionary aspect of Crim.R. 52(B) by admonishing courts to notice plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id.

{¶ 23} The Supreme Court has included unauthenticated cellphone records into the category of testimonial statements that can violate Confrontation Clause rights. See State v. Hood , 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 2, 4. The Hood court held that cellphone and other business-type records, "without * * * authentication, cannot be considered nontestimonial." Id. at ¶ 2. In the case of cellphone records, when no foundation is laid by a custodian of the records or any other qualified witness that the records meet the requirements of Evid.R. 803(6), the records are testimonial, and "the admission of the records in this case was constitutional error." Id. at ¶ 42. However, the Hood court also found that the admission of cellphone records in that case was harmless error. Id. at ¶ 50. Where constitutional error in the admission of evidence is extant, such error is harmless beyond a reasonable doubt if the remaining evidence, standing alone, constitutes overwhelming proof of the defendant's guilt. State v. Williams , 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983), paragraph six of the syllabus. See also, Hood at ¶ 43.

{¶ 24} First we note the state did not seek to introduce the AT & T records, but rather the analysis prepared by Detective Howe, which was based on his expertise and the records received from AT & T. As such, we construe appellant's third assignment of error as challenging the admission of Detective Howe's "Cellular Review." (State's Ex. I.)

{¶ 25} Appellant never questioned the authenticity of the records. Defense counsel had the AT & T records as part of discovery. The state had subpoenaed the AT & T keeper of records. Defense counsel even subpoenaed an employee of AT & T. As this was the second trial, counsel was well-familiar with the records and any issues they might present. Appellant agreed to the admission of the cell phone analysis without objection initially but later asked the court to clarify for the jury, which the trial court did, that the phone was never linked by the AT & T records to appellant. (Tr. at 800-03.)

{¶ 26} Under the circumstances, we do not find plain error. There was no obvious defect in the trial proceedings, nor do we find that the admission of State's Ex. I affected the outcome of the trial, or caused a manifest miscarriage of justice. In addition, even if we were to find error, such error would be harmless.

{¶ 27} Since the AT & T cellphone records never linked phone number 614-441-2949 to appellant, it is unlikely that the jury relied on the testimony to convict, especially in light of B.B.'s credible and consistent testimony regarding her activities, identifying her assailant's phone number, identifying appellant in the photo lineup prior to her knowing that his DNA was on the cigarette, identifying him in court, and that there was no evidence of illegal drug use in the same hotel room in which appellant testified he had sold multiple drugs, coupled with appellant's DNA on the cigarette that B.B. testified burned her neck.

{¶ 28} This case came down to credibility. The jury believed B.B. The testimony of one witness, if believed by the jury, is enough to support a conviction. State v. Strong , 10th Dist. No. 09AP-874, 2011-Ohio-1024, 2011 WL 794604, ¶ 42. As in Hood at ¶ 43 and 50, we conclude that the admission of the cell phone records as incorporated into State's Ex. I did not contribute to appellant's conviction and their admission was harmless beyond a reasonable doubt. Appellant's third assignment of error is overruled.

V. ASSIGNMENT OF ERROR FIVE-No Prosecutorial Misconduct

{¶ 29} Appellant argues that the state's repeated mischaracterization of the AT & T-owned cellphone, by repeatedly referring to the cellphone as the suspect phone, denied appellant a fair trial and due process of law. Additionally, through an exhibit based on the unauthenticated cellphone records, the state presented the "Cellular Review" that referred to appellant's home address as "Suspect Home Address."

{¶ 30} Whether a prosecutor's remarks constitute misconduct depends upon (1) whether the remarks were improper and, (2) if so, whether the remarks prejudicially affected the accused's substantial rights. State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 163. The issue is whether the defendant received a fair trial. State v. Apanovitch , 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). The conduct of a prosecuting attorney during a trial cannot be made a ground for error unless the conduct deprived the defendant of a fair trial. State v. Maurer , 15 Ohio St.3d 239, 266, 473 N.E.2d 768 (1984).

{¶ 31} Appellant argues that the prosecutor mischaracterized the evidence by calling the cellphone number that called B.B. the suspect phone. However, this characterization was accurate as B.B. indicated that the person who used that cellphone number was the person who attacked her, i.e., the appellant. The state readily admitted throughout the trial, starting with opening statements, that the phone could not be connected to appellant by the AT & T records. However, B.B.'s testimony linked the cellphone to appellant.

{¶ 32} Appellant asked the court to clarify for the jury that the phone was never linked to appellant by the AT & T records and that the word "suspect" in "phone" and "home" did not link appellant. The judge so instructed the jury as stated above. The jury is presumed to follow the court's instructions. State v. Loza , 71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994). As such, the prosecutor's conduct was not prejudicial. Any claimed error did not affect the outcome of the trial. Appellant's fifth assignment of error is overruled.

VI. ASSIGNMENT OF ERROR SIX-Photo Lineup-No Plain Error

{¶ 33} Appellant argues that the trial court committed plain error when it failed to instruct the jury on photo-lineup noncompliance as required by R.C. 2933.83(C)(3). Appellant did not request that the trial court instruct the jury pursuant to R.C. 2933.83(C)(3). Because appellant did not object to the jury instructions, he has waived all but plain error.

{¶ 34} R.C. 2933.83(B) requires law enforcement agencies to adopt specific procedures for conducting line-ups:

Prior to conducting any live lineup or photo lineup * * *, any law enforcement agency or criminal justice entity in this state that conducts live lineups or photo lineups shall adopt specific procedures for conducting the lineups.

{¶ 35} The remedy for failure to comply with said procedures is a jury instruction:

[T]he "penalty" for failure to comply with R.C. 2933.83 is not suppression, but that "the jury shall be instructed that it may consider credible evidence of noncompliance in determining the reliability of any eyewitness identification." R.C. 2933.83(C)(3).

State v. Stevenson , 2d Dist. No. 24821, 2012-Ohio-3396, 2012 WL 3061487, ¶ 16. Noncompliance with R.C. 2933.83(B) alone is insufficient to warrant suppression of evidence. State v. Ruff , 1st Dist. No. C-110250, 2012-Ohio-1910, 2012 WL 1537545, ¶ 8. The failure to strictly comply with R.C. 2933.83 does not render the pretrial identification procedure per se impermissibly suggestive. Rather, all facts and circumstances must be considered. See State v. Murphy , 91 Ohio St.3d 516, 534, 747 N.E.2d 765 (2001).

{¶ 36} This court recently considered this very issue in a case directly on point, State v. Lytle , 10th Dist. No. 15AP-748, 2016-Ohio-3532, 2016 WL 3405563, discretionary appeal not allowed , 147 Ohio St.3d 1474, 2016-Ohio-8438, 65 N.E.3d 778, and found no plain error:

Appellant contends that evidence of a failure to comply with the provisions of R.C. 2933.83 was presented at trial in order to trigger a jury instruction. Specifically, appellant points to Bowman's and Kirby's testimonies as evidence that including two photographs of the same person violated the Columbus police lineup procedure. It is true that Bowman expressed his own opinion that including two photographs of the same person was a statutory violation. However, the minimum statutory requirements and definition of photo array in R.C. 2933.83 do not address whether five distinct people must be included in the array alongside the defendant. In addition, testimony reflecting the officers' belief that the duplication never should have occurred falls short of establishing a procedure against photo duplication "adopted" by the Columbus police department under R.C. 2933.83. R.C. 2933.83(C).
In other words, whether or not a violation of R.C. 2933.83 occurred is not obvious from record evidence. As such, we cannot say any possible defect in not including a jury instruction, pursuant to R.C. 2933.83(C)(3), rises to the level of "plain" error within the meaning of Crim.R. 52(B). Barnes at 28 [759 N.E.2d 1240]. See also Thompson at ¶ 24 (finding, in the context of a court's failure to impose a jury instruction under R.C. 2933.83(C)(3), no plain error occurs where insufficient record evidence demonstrates noncompliance with the statute).
We likewise cannot say that any possible error in not including the R.C. 2933.83(C)(3) jury instruction affected the outcome of the trial. The jury heard extensive testimony and cross-examination regarding the photo array identifications and the two photographs of the same person. The witnesses testified that they did not know that two photographs of the same person were placed in the photo array and that it did not affect their selections of appellant in the photo array, and all identified appellant in court as the person who robbed TK Sports Bar. * * *.
Furthermore, the trial court gave the jury general instructions regarding the value of identification testimony and credibility of identification witnesses, which specifically asked the jury to consider whether each identification witness had the opportunity to make a reliable observation and specified that the jury could take into account the strength of the identification and the circumstances under which the identification was made. Such a general credibility instruction allows a jury to assess the value of photo identification testimony. Thompson at ¶ 24 (finding no plain error occurred in trial court's failure to give a R.C. 2933.83(C)(3) instruction where jury received a general credibility instruction and heard sufficient testimony regarding the identification); * * *. Therefore, appellant's substantial rights were not affected, and for all the above reasons, we find no plain error.

Id. at ¶ 76-79.

{¶ 37} Here, as in Lytle , there was no evidence of the failure to comply with any procedure adopted by the Columbus police, or any evidence of failure to comply with any section of R.C. 2933.83. As such, the trial court was not required to give a jury instruction pursuant to R.C. 2933.83(C)(3). The jury was well aware of the issue with the photo array and defense counsel extensively cross-examined B.B. and Detective Wood on this issue. In addition, the trial court judge did give the general jury instruction regarding the value of identification testimony and credibility of identification witnesses. (Nov. 18, 2015 Tr. at 920-22.) B.B. identified appellant in court and in the photo array. B.B. never commented on the two photos, but focused on photos of two others, and did not notice that the same person (not appellant) was featured twice. As such, any possible error did not affect the outcome of the trial. We find no plain error. Appellant's sixth assignment of error is overruled

VII. ASSIGNMENTS OF ERROR FOUR AND SEVEN-No Ineffective Assistance of Counsel

{¶ 38} Appellant argues in the fourth assignment of error that he was denied the effective assistance of counsel when counsel failed to object to Detective Howe's testimony regarding unauthenticated cellphone records. Appellant argues in the seventh assignment of error that trial counsel provided ineffective assistance of counsel by failing to request an R.C. 2933.83(C)(3) jury instruction.

{¶ 39} Counsel is ineffective if counsel's performance is objectively unreasonable, and if counsel's deficient performance substantially prejudices the defendant's trial. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, the defendant must show that counsel's deficient performance prejudiced the defense and deprived the defendant of a fair trial. Id. at 687, 104 S.Ct. 2052. A defendant establishes prejudice if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

A. Assignment of error four

{¶ 40} As stated above, the state did not offer the testimony of an AT & T custodian of records that could vouch for the business records accuracy or veracity. Instead, the state offered the testimony of Detective Howe, who presented his "Cellular Review" based in part on the AT & T records.

{¶ 41} We note that it is difficult to make an ineffective assistance claim in a direct appeal because there is usually very little, if any, information in the record as to counsel's reasoning. Trial counsel had the AT & T records as part of discovery. Appellant's counsel had even subpoenaed an employee of AT & T. As this was the second trial, counsel was very familiar with the records and any issues they might present. Counsel vigorously cross-examined the experts at both trials. Had defense counsel objected to Detective Howe's report based on AT & T's records, the state could have easily called the keeper of records who had been subpoenaed. Counsel likely realized no purpose would be served by cross-examining the records keeper and appellant does not suggest what testimony might have been elicited to affect the outcome. Counsel was not ineffective. Appellant's assignment of error four is overruled.

B. Assignment of error seven

{¶ 42} Appellant argues that R.C. 2933.83(C)(3) requires a jury instruction when eyewitness identification procedures are violated and that because trial counsel was aware of the lack of compliance, trial counsel should have requested an R.C. 2933.83(C)(3) jury instruction.

{¶ 43} In order for the trial court to have been required to provide the jury instruction, appellant first must show that there was evidence of a failure to comply with a procedure that had been adopted by the Columbus police. Because there was no evidence of the failure to comply with any procedure adopted by Columbus police, nor any evidence of failure to comply with any section of R.C. 2933.83, the trial court was not required to give a jury instruction pursuant to R.C. 2933.83(C)(3). Again, appellant cannot show that the outcome of the trial would have been different had counsel requested said jury instruction. As such, counsel was not ineffective. Appellant's seventh assignment of error is overruled.

VIII. DISPOSITION

{¶ 44} Having overruled appellant's seven assignments of error, the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

SADLER and DORRIAN, JJ., concur.