author: MARY EILEEN KILBANE, P.J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Zachary JOHNSON, Defendant-Appellant
    No. 105612
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 12, 2018
    Susan J. Moran, 55 Public Square, Suite 1616, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, Maxwell Martin, Eben McNair, Assistant County Prosecutors, The Justice Center-9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Kilbane, P.J., McCormack, J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   MARY EILEEN KILBANE, P.J.:

{¶ 1} Defendant-appellant, Zachary Johnson ("Johnson"), appeals his convictions for aggravated murder, murder, attempted murder, felonious assault, discharging a firearm at or near a prohibited premises, and having a weapon while under disability. For the reasons set forth below, we affirm.

{¶ 2} In August 2016, Johnson was charged in a ten-count indictment. Count 1 charged him with aggravated murder. Count 2 charged him with murder. Counts 3, 4, 6, and 7 charged him with felonious assault. Count 5 charged him with attempted murder. Count 8 charged him with discharging a firearm at or near a prohibited premises. Counts 9 and 10 charged him with having a weapon while under disability ("HWWUD").

{¶ 3} The matter proceeded to a jury trial, at which the following evidence was adduced.

{¶ 4} On July 5, 2016, Maurio Ayers ("Ayers") was killed in a drive-by shooting on Thornhill Drive in Cleveland. Charles Wright ("Wright"), who lives on Thornhill Drive, was also shot and injured in the incident. Melton Peoples ("Peoples") was visiting with Wright when the shooting occurred. Peoples testified that Ayers stopped by in his car around 8:30 p.m. Peoples and Wright approached the street and stood on the sidewalk talking with Ayers for approximately 15-20 minutes when another vehicle approached. Peoples described the car as a dark grayish, tanish, brownish color. As this vehicle passed, Wright said "[t]hat * * * Zach [Johnson] right there." There were some issues between Ayers and Johnson because Ayers allegedly stole some drugs and money from Johnson.

{¶ 5} Johnson's car turned back around toward Peoples, Wright, and Ayers. Peoples testified that he observed two or three people in the car with guns pointing out the windows. Peoples then dropped to the ground for safety and was able to avoid injury. He heard approximately six to eight gunshots. Ayers was shot in the back, and Wright was shot in the foot. After the shooting, Ayers told Peoples and Wright that he was going to the hospital and sped away in his car. He subsequently crashed into a nearby church at the corner of Thornhill Drive and Arlington Avenue, where he died of his gunshot wound.

{¶ 6} Meanwhile, Peoples and Wright ran into Wright's house. Before the police arrived, Peoples fled to his sister's house, but returned to the scene after learning that the shooting was fatal. Both Peoples and Wright spoke to the police.

{¶ 7} Derrick Miller ("Miller") testified that Johnson confessed to killing Ayers when they were both in county jail awaiting trials in their respective cases. Miller explained that it is common for inmates to discuss the crimes they committed that brought them to jail. He knew both Johnson and Ayers prior to his incarceration. During one of these conversations with Johnson, Johnson told Miller that he murdered Ayers in revenge because Ayers had robbed him of drugs and money.

{¶ 8} According to Miller, Johnson staged a drug deal in order to come into contact with Ayers to kill him. Johnson allegedly told Miller that he used a machine gun known as a "Mack 90," but the casings found at the scene came from a hand gun. Miller also told a Cleveland detective that Johnson was driving a black BMW that night. Miller admitted that he agreed to testify against Johnson in order to obtain a favorable plea agreement with the state in his own case.

{¶ 9} The defense called another inmate, Quentin Allison ("Allison"), to testify as a rebuttal witness to Miller's testimony. Allison testified that inmates rarely discuss their cases, especially with strangers, but some inmates "snitch" to get their time reduced. Allison admitted, however, that Johnson is one of his childhood friends.

{¶ 10} The state presented testimony from DNA and ballistics experts. There was no DNA evidence on the bullet casings found on the scene that linked Johnson to the crimes. Nor was the ballistics expert able to identify any gunshot residue on the victim, which indicated that the muzzle to target distance was not close.

{¶ 11} The state also presented the testimony of Todd Wiles ("Wiles"), a crime analyst with the Cleveland Police Department. He has been an analyst for 25 years. He has been to both federal and state law enforcement training academies for multiple cell phone analysis courses and is an active member of the International Association of Crime Analysts. The trial court accepted Wiles to testify as an expert.

{¶ 12} Wiles testified that cell phone data placed Johnson's cell phone near the crime scene at the time of the shooting. However, Wiles conceded that determining a cell phone's location from cell tower data is not precise because the towers cover an area "roughly a quarter of a mile" in size. As a result, Wiles was unable to pinpoint the exact location of Johnson's cell phone at the time of the shooting. Through the data, Wiles was only able to narrow the range to a particular area.

{¶ 13} Cleveland Police Detective Arthur Echols ("Detective Echols") testified that Johnson lived at two different addresses, including 1105 Carlyon Road in East Cleveland. Johnson's sister testified that he was living at the Carlyon address at the time of the shooting. Detective Echols estimated that the Carlyon Road address was "a quarter of mile to half a mile away" from the crime scene.

{¶ 14} Detective Echols attempted to set up a meeting with Wright to conduct an interview, but Wright was uncooperative with the investigation. In order to facilitate a meeting, Detective Echols met with Wright when he was scheduled for a meeting with his parole officer. Detective Echols had generated a photo array, with Johnson as the suspect. As a result of the photo array and Echols's interview with Wright, the police issued an arrest warrant for Johnson.

{¶ 15} At the conclusion of trial, the jury found Johnson guilty of all charges and the trial court found him guilty of the two HWWUD charges. After merging allied offenses, the court sentenced Johnson to a total of 31 years to life in prison.

{¶ 16} Johnson now appeals, raising the following six assignments of error for review.

Assignment of Error One

The trial court erred in allowing cell phone site testimony as it was both a discovery violation and was not Daubert tested. The court also erred in qualifying the state's witness as an expert and admitting his testimony as such, as his conclusions were unreliable and were not within a reasonable degree of scientific certainty.

Assignment of Error Two

The court violated [Johnson's] right to confrontation and due process when it improperly allowed the admission of incriminating and impermissible hearsay statements.

Assignment of Error Three

The state failed to present sufficient evidence of the offenses charged.

Assignment of Error Four

[Johnson's] convictions are against the manifest weight of the evidence.

Assignment of Error Five

[Johnson] was denied due process and a fair and impartial trial as guaranteed by the 5th, 6th, and 14th Amendments to the U.S. Constitution and Article I Section 16 of the Ohio Constitution based on prosecutorial misconduct.

Assignment of Error Six

[Johnson] was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.

Cell Phone Evidence

{¶ 17} In the first assignment of error, Johnson argues the trial court erred by allowing Wiles to testify as an expert on cell phone analysis. He contends his testimony should have been excluded as a discovery violation and because the court failed to determine whether Wiles's expert testimony was scientifically reliable as required by Evid.R. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

{¶ 18} We note that "[t]he admission or exclusion of evidence is a matter left to the trial court's sound discretion; therefore, it will not be disturbed absent an abuse of discretion." State v. Dunn , 8th Dist. Cuyahoga No. 101648, 2015-Ohio-3138, 2015 WL 4656534, ¶ 40, citing State v. Frazier , 8th Dist. Cuyahoga No. 97178, 2012-Ohio-1198, 2012 WL 986477.

{¶ 19} Under Evid.R. 702, a witness may testify as an expert if: (1) the testimony "either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among laypersons;" (2) the witness "is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;" and (3) the testimony "is based on reliable scientific, technical, or other specialized information[.]"

{¶ 20} In Daubert , the United States Supreme Court held that the trial judge has a "gatekeeping" obligation to ensure that scientific testimony is reliable. Daubert , 509 U.S. at 597, 113 S.Ct. 2786, 125 L.Ed.2d 469. The Daubert Court enumerated several factors courts must consider when determining whether scientific evidence is reliable, which include: (1) whether the theory or technique has been tested; (2) whether it has been subjected to peer review; (3) whether there is a known or potential rate of error; and (4) whether the methodology has gained general acceptance. Id. at 593-594, 113 S.Ct. 2786. These factors are intended to assist the trial court in its duty to ensure that expert testimony is based on the scientific method. Id. at 590, 113 S.Ct. 2786.

{¶ 21} In Kumho Tire Co. v. Carmichael , 526 U.S. 137, 148, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the United States Supreme Court extended this holding to all testimony based on "technical" and "other specialized" knowledge. The Kumho Tire Court emphasized that "the test of reliability is 'flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." Kumho Tire at 141, 119 S.Ct. 1167. Indeed, when "assessing reliability, the trial court may, at its discretion, consider the Daubert factors to the extent relevant." State v. Drummond , 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 118, citing Kumho Tire . Furthermore, "[t]he individual offered as an expert need not have complete knowledge of the field in question, as long as the knowledge he or she possesses will aid the trier of fact in performing its fact-finding function." Drummond at ¶ 113.

{¶ 22} In support of his argument, Johnson cites to United States v. Evans , 892 F.Supp.2d 949 (N.D.Ill.2012). In Evans , the prosecution sought to call an FBI special agent to testify about "the operation of cellular networks and how to use historical cell site data to determine the general location of a cell phone at the time of a particular call." Id. at 951. The agent used the "granulization" theory and proposed to testify that phone calls placed from the defendant's cell phone could have come from the building where the victim was held for ransom. Id. The court held an evidentiary hearing, pursuant to Evid.R. 702 and Daubert , to determine whether the proposed evidence and analysis were admissible.

{¶ 23} The Illinois Federal District Court concluded that the FBI agent was qualified to testify as an expert regarding the operation of cellular networks and the "granulization" theory. Id. at 955. The court further concluded that the agent's testimony on the subject is reliable. Id. The court, however, held that the agent's "granulization" theory was not reliable because (1) the agent did not account for the factors that can affect whether a cell phone connects to the closest tower or is rerouted to another tower, and (2) the theory has not been subject to scientific testing or formal peer review, and has not gained general acceptance in the scientific community. Id. at 956.

{¶ 24} We note that Evans is not binding on this court and we previously rejected Evans in State v. Daniel , 8th Dist., 2016-Ohio-5231, 57 N.E.3d 1203. In Daniel , we concluded that Wiles's testimony was admissible as lay testimony because it was limited to a review of the defendant's cell phone records and the location of the cellular towers used by the defendant's phone in relation to the crime scene. Id. at ¶ 69, 72

{¶ 25} We explained that unlike the FBI agent in Evans , Wiles did not testify about "how cellular networks operate" or "the process by which a cell phone connects to a given tower." Daniel at ¶ 66. Testimony regarding a comparison of cell phone data records to locations where crimes occurred does not require " 'specialized knowledge, skill, experience, training, or education' " regarding cellular networks. Daniel at ¶ 69, quoting Evid.R. 702(B). Therefore, we found that a Daubert hearing was not necessary. Id.

{¶ 26} Despite Johnson's argument to the contrary, Wiles did not attempt to explain the science behind how cell phones work or how cell phones connect to cell towers. As the Second District observed, " 'the use of cell phone location records to determine the general location of a cell phone has been widely accepted by numerous federal courts.' " State v. White , 2d Dist., 2015-Ohio-3512, 37 N.E.3d 1271, ¶ 28, quoting United States v. Jones , 918 F.Supp.2d 1, 5 (D.D.C.2013). See also Jackson v. Allstate Ins. Co. , 785 F.3d 1193, 1204 (8th Cir.2015) (rejecting the contention that evidence regarding the use of historical cell phone data to identify the geographic area in which a phone was located at a given time is inherently unreliable, saying that federal courts have regularly admitted expert testimony regarding this type of evidence); United States v. Schaffer , 439 Fed.Appx. 344, 346-347 (5th Cir.2011) (upholding the admissibility of an FBI agent's testimony pinpointing the locations where cellular telephones were allegedly used, based on "his extensive knowledge and experience in the field" and noting that the agent testified that he had used the technique without error on at least 100 occasions and that the FBI had used it successfully at least 1,000 times).

{¶ 27} Here, even though the state offered Wiles as an "expert witness," his testimony was no different from the testimony he provided in Daniel , 8th Dist., 2016-Ohio-5231, 57 N.E.3d 1203. Wiles merely compared cell phone records that showed the location of cell towers "hit" by Johnson's cell phone at the time the murder occurred with the location of the crime scene. Because his testimony was primarily lay witness testimony and he was competent to testify, the trial court properly allowed his testimony regarding Johnson's cell phone activity and location at the time of the murder.

{¶ 28} Johnson also contends the court erred in allowing Wiles to testify regarding his cell phone data because the state failed to identify him as a witness and failed to produce the cell phone records during discovery. He contends the last minute production of discovery ambushed the defense.

{¶ 29} On the first day of trial, the state received Johnson's cell phone records and immediately turned them over to defense counsel. The state indicated that it intended to call an expert phone analyst as a witness and present evidence of maps of the area showing the location of cell phone towers in relation to the crime scene. The state also identified new witnesses to its witness list. These witnesses were discovered from Johnson's phone records because they spoke to him on his phone during the relevant time period. The cell phone records, expert witness, maps of the area, and newly identified witness were produced and brought to the court's attention before the jury was sworn in.

{¶ 30} Defense counsel objected to all evidence related to Johnson's cell phone because it had not been produced in discovery. The trial court offered to continue the trial to allow the defense time to study the records, question the state's new witnesses, and retain a defense expert. The trial court indicated it would continue the trial for a month if necessary. Defense counsel objected to the admissibility of the evidence, but declined the continuance, citing his client's need to finish the trial. The court then proceeded with trial, and the state presented the cell phone evidence along with Wiles's testimony. Because Johnson chose to proceed with the trial and declined the continuance, he waived any discovery violation.

{¶ 31} Therefore, the first assignment of error is overruled.

Confrontation

{¶ 32} In the second assignment of error, Johnson argues the trial court violated his confrontation rights when it improperly allowed the admission of impermissible hearsay statements.

{¶ 33} The Confrontation Clause of the Sixth Amendment to the United States Constitution preserves the right of a criminal defendant "to be confronted with the witnesses against him." The Confrontation Clause bars the admission of "testimonial hearsay" unless the declarant is unavailable and the accused had a prior opportunity to cross-examine the declarant. Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

{¶ 34} Testimonial statements exist where there is no ongoing emergency and the statements resulted from a police interrogation whose " 'primary purpose was to establish or prove past events potentially relevant to later criminal prosecution.' " State v. Ricks , 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 17, quoting Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In making this "primary purpose" determination, courts must consider "all of the relevant circumstances." Michigan v. Bryant , 562 U.S. 344, 369, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). The question is whether, in light of all the circumstances, the primary purpose of the conversation was to create "an out-of-court substitute for trial testimony." Id. at 358, 131 S.Ct. 1143.

{¶ 35} Here, Johnson argues his right of confrontation was violated during the testimony of Peoples, Cleveland Police Officer Taara Johnson ("Officer Johnson"), Andrea Ayers ("Andrea"), and Detective Echols.

{¶ 36} With regard to Peoples, Johnson contends Peoples should not have been permitted to testify as to what Wright stated moments before the shooting-"[t]hat * * * Zach right there." Wright asserted his Fifth Amendment right to remain silent and did not testify at Johnson's trial. Therefore, he was not subject to cross-examination.

{¶ 37} Peoples's testimony was not that of an interrogating police officer intending to establish past events that might be relevant to a later criminal prosecution. As a result, this testimony was not testimonial hearsay. Peoples merely recounted Wright's present sense impression. This testimony is admissible as an exception to the hearsay rule under Evid.R. 803(1), which provides that "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness."

{¶ 38} With regard to Officer Johnson, she testified that she questioned Wright while he was in the hospital for his gunshot wound. Wright gave Officer Johnson a description of the vehicle and the shooter, but Officer Johnson never repeated what Wright told her. When Officer Johnson began to offer hearsay testimony, the state and the court reminded her not to repeat what other people may have said. Officer Johnson testified:

[STATE]: Did you try and talk to [Wright], even though you maybe knew some information had already been collected from him?
[OFFICER JOHNSON]: Yes.
[STATE]: All right. And I don't want you to testify as to what he told you. But what sort of information were you seeking?
[OFFICER JOHNSON]: We were trying to get more so of a description of the suspect and also a description of the vehicle that was on scene that he had saw.
[STATE]: And what was his demeanor like, what was his attitude toward you and your questioning?
[OFFICER JOHNSON]: As soon as we walked in, we told him that we wanted to ask him a few more questions. He responded with-
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[STATE]: So you can't testify to what he told you. But how about this. Was he-did he want to give you information at that point?
[OFFICER JOHNSON]: No.
* * *
[STATE]: And again, without telling us what he told you, did you get some information from him?
[OFFICER JOHNSON]: Yes.
[STATE]: So you talked about a description of the vehicle, description of a shooter. Were you able-were you successful in getting some of that information?
[OFFICER JOHNSON]: Some, yes.
* * *
[STATE]: And as a result of your observations on the scene, as well as your interview with [Wright] and conferring with the members of the homicide unit, did you generate a report?
[STATE]: Yes.
* * *
[STATE]: What sort of information is included in that report?
[OFFICER JOHNSON]: The information that I received from myself and also the information that homicide received.
* * *
[STATE]: Okay. Included in your report, is there a description of the vehicle?
[OFFICER JOHNSON]: Yes.
[STATE]: Is there a description of one of the males who shot?
[OFFICER JOHNSON]: Yes.
[STATE]: Is there a name of one of the males who shot?
[OFFICER JOHNSON]: There was a nickname.

{¶ 39} Johnson argues the error of allowing this impermissible hearsay was exacerbated when the state indicated in closing argument that Wright told the officers that he (Johnson) was one of the shooters in the drive-by shooting. Officer Johnson, however, did not provide such testimony, and her testimony did not constitute testimonial hearsay. Therefore, there was no violation of the Confrontation Clause.

{¶ 40} With regard to Andrea, Ayers's mother, Johnson contends that she provided testimonial hearsay. Andrea testified that she spoke with Wright regarding her son's death. Ayers testified:

[STATE]: Why don't you tell us about the following day. Did you meet with [Wright]?
[ANDREA]: Yeah, the following day I guess he wanted to tell me who-
[DEFENSE COUNSEL]: Objection.
THE COURT: Well, why don't we caution [Andrea]. One of the rules in court is that you can't tell us what somebody else said.
[STATE]: We went over the rules a little bit before your testimony * * * about hearsay. You can't talk about what someone else told you, right? So I don't want you to say the words that [Wright] said, right?
[ANDREA]: Right.
* * *
[STATE]: Did [Wright] tell you what happened?
[ANDREA]: Yes.
[STATE]: And without telling us what he said, did he tell you who had done it?
[ANDREA]: Yes.
[STATE]: Did he give you one name or more than one?
[ANDREA]: He gave me [the] first and last name * * * of one person.
[STATE]: Again, [Andrea], I don't want to go into specifics about what he said, but did he tell you how it happened and how [Ayers] died?
[ANDREA]: Yes.

{¶ 41} Although Andrea testified that Wright spoke to her about her son's death, she did not testify what Wright specifically told her. She did not reiterate the name of her son's assailant, nor did she describe the manner of his death. This testimony was not offered to prove the circumstances of Ayers's death, but to explain how the case unfolded. Thus, there was no testimonial hearsay presented by Andrea.

{¶ 42} With regard to Detective Echols's testimony, Detective Echols explained that Wright did not cooperate with the homicide investigation and that he had to "ambush" Wright during his visit with his parole officer in order to get Wright to identify the shooter. Detective Echols testified:

[STATE]: Did [Wright] make a positive identification of the person who-
[DEFENSE COUNSEL]: Objection.
THE COURT: Finish the question.
[STATE]: Did he make a positive identification of the person who he said was involved in this case?
[DETECTIVE ECHOLS]: Yes.
* * *
[STATE]: As a result of the administration of this photo array and your interview of [Wright], did you seek and secure an arrest warrant for [Johnson] on August 3rd?
[DETECTIVE ECHOLS]: Yes.

{¶ 43} Johnson argues that Detective Echols's testimony regarding Wright's identification of him as the assailant in the drive-by shooting constituted testimonial hearsay in violation of the Confrontation Clause as explained in Ricks, 136 Ohio St.3d at 368, 2013 -Ohio- 3712, 995 N.E.2d 1181. In Ricks , the Ohio Supreme Court held that an officer's testimony regarding the out-of-court statements of an alleged accomplice identifying Ricks as the assailant violated the Confrontation Clause when the accomplice did not testify at trial.

{¶ 44} In the instant case, however, Detective Echols only described Wright's identification of a suspect from a photo array. He did not testify to what Wright said, which is what the officer did in Ricks. Rather, Detective Echols's testimony explained his conduct while investigating the homicide. Ohio courts have long held that out-of-court statements are admissible to explain the actions of a police officer during an investigation and are not hearsay. State v. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31 ; State v. Blevins , 36 Ohio App.3d 147, 149, 521 N.E.2d 1105 (10th Dist.1987), State v. Thomas , 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980) ("where statements are offered to explain an officer's conduct while investigating a crime, such statements are not hearsay").

{¶ 45} Johnson also relies on State v. Robinson , 8th Dist. Cuyahoga No. 100126, 2014-Ohio-1624, 2014 WL 1513967, in support of his argument. In Robinson , this court held that a detective's testimony regarding his presence during a witness's identification of a suspect from a photo array was hearsay. Id. at ¶ 14. Robinson is distinguishable because in the instant case, Detective Echols did not testify as to the results of the photo array, only that it was administered and Wright made a positive identification. Detective Echols's testimony explained how the police concluded that Johnson was the lead suspect in Ayers's murder case and the attempted murder of Wright.

{¶ 46} Accordingly, the second assignment of error is overruled.

Sufficiency of the Evidence

{¶ 47} In the third assignment of error, Johnson argues his convictions are not supported by sufficient evidence.

{¶ 48} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. 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.

{¶ 49} Johnson's sufficiency argument is based on an attack of Miller's credibility, which is not suitable for a sufficiency argument. Johnson asserts that Miller was biased and motivated to lie against him because the state promised to give him a reduced sentence in exchange for his testimony.

{¶ 50} Miller testified that Johnson murdered Ayers in retaliation against Ayers for previously robbing Johnson of drugs and money. He further testified that Johnson admitted murdering Ayers. In a sufficiency analysis, we review the evidence in a light most favorable to the state and, therefore, must accept Miller's testimony as true. Miller testified that Johnson confessed to the crimes. As a result, there was sufficient evidence that Johnson was involved in the drive-by shooting that caused Ayers's death and Wright's injury. Additionally, Peoples testified that Johnson drove the vehicle involved in the drive-by shooting and fired a gun at the victims. Accepting this evidence as true, we must find there was sufficient evidence to support Johnson's convictions.

{¶ 51} Therefore, the third assignment of error is overruled.

Manifest Weight of the Evidence

{¶ 52} In the fourth assignment of error, Johnson argues his convictions are against the manifest weight of the evidence.

{¶ 53} In contrast to sufficiency, "weight of the evidence involves the inclination of the greater amount of credible evidence." State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In a manifest weight analysis, the reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses to determine " 'whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

{¶ 54} Johnson argues his convictions are against the manifest weight of the evidence because his convictions were based on hearsay evidence, except for Miller's testimony, which he claims was not credible. Johnson further argues the cell phone records did not place him at the crime scene because he lived within a quarter of a mile of the cell tower that recorded his phone activity at the time of the crime.

{¶ 55} Although Miller's credibility may be questionable, the jury had the opportunity to judge his credibility as a witness, as well as the witnesses that corroborated or contradicted his testimony, and the jury determined that his testimony was credible.

{¶ 56} Miller's testimony was corroborated by outside sources. Peoples, who witnessed the shooting, testified that Johnson was one of the shooters. Although the cell phone data by itself is not enough to prove Johnson's guilt beyond a reasonable doubt, the cell phone records coupled with Peoples's and Miller's testimony establishes that Johnson was involved in the shooting.

{¶ 57} Johnson presented Allison to rebut Miller's testimony. In contrast to Miller's testimony that inmates discuss the crimes that got them into jail, Allison testified that inmates rarely discuss their cases, especially with strangers. Allison also stated some inmates "snitch" in order to get their time reduced. Allison testified that Johnson never confessed to any murders or attempted murders in jail to demonstrate that Miller's testimony regarding Johnson's confession was unreliable. However, Allison admitted that Johnson is one of his childhood friends and that he did not want anything bad to happen to him. Therefore, Allison had his own bias in favor of Johnson and against Miller.

{¶ 58} Accordingly, the fourth assignment of error is overruled.

Prosecutorial Misconduct

{¶ 59} In the fifth assignment of error, Johnson argues his constitutional right to a fair trial was violated by prosecutorial misconduct. In support of his argument, he relies on State v. Jackson , 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, for the proposition that the prosecutor improperly vouched for Miller's credibility during closing arguments.

{¶ 60} We note that since defense counsel did not object to the prosecutor's comments, Johnson forfeited all but plain error. Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long , 53 Ohio St.2d 91, 94, 372 N.E.2d 804 (1978) ; Crim.R. 52.

{¶ 61} The test for prosecutorial misconduct in closing argument is " 'whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.' " State v. Hessler , 90 Ohio St.3d 108, 125, 734 N.E.2d 1237 (2000), quoting State v. Smith , 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984).

{¶ 62} In Jackson , 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, the Ohio Supreme Court stated that "[i]t is improper for an attorney to express a personal belief or opinion as to the credibility of a witness." Id. at ¶ 117, citing State v. Williams , 79 Ohio St.3d 1, 679 N.E.2d 646 (1997). In order to vouch for the witness, the prosecutor must imply knowledge of facts outside the record or place the prosecutor's personal credibility in issue. Id. , citing State v. Keene , 81 Ohio St.3d 646, 693 N.E.2d 246 (1998). The Jackson Court determined that the following comments were permissible arguments regarding a witness's reliability:

Now, you know, they're [defense counsel] vilifying her. She was badgered. They were belligerent. She had a brutal cross-examination. She stood up. You know, it's not easy for someone to come in and testify against their brothers. But, apparently she has-she may lead a different life style than most of us, but she has a sense of decency. She knows a little bit of what's right and what's wrong and what's just. She had no motive to lie. No motive. None whatsoever.

Id. at ¶ 119. The Court held that these comments did not constitute impermissible vouching for a witness's credibility, explaining that:

The prosecutor did not improperly vouch for Tara's credibility as a witness. The prosecutor merely argued that Tara was a reliable witness and that she lacked any motive to lie. This type of argument is not improper vouching when, as here, the prosecutor is responding to defense counsel's attacks on a witness's credibility and refers to facts in evidence that tend to make the witness more credible. See State v. Green , 90 Ohio St.3d [352] at 373-374, 738 N.E.2d 1208 [ (2000) ]. Moreover, defense counsel did not object, and there was no plain error. When viewed in its entirety, the prosecutor's rebuttal argument neither materially prejudiced appellant nor denied him a fair trial. See State v. Loza , 71 Ohio St.3d [61] at 78, 641 N.E.2d 1082 [ (1994) ].

Id. at ¶ 120.

{¶ 63} In the instant case, the prosecutor in this case never spoke about evidence outside the record or offered his own testimony or opinion. With respect to Miller, the prosecutor stated, in relevant part:

Miller, when he was on the stand, he was able to tell the truth without flinching. He answered all the questions including from defense counsel, whether they were embarrassing or not. Yes, I committed identity fraud; yes, I did these other bad things in the past. Yes, I have lied in the past. And yes, your client confessed to me that he committed this murder and shot [Wright] in the foot.
[Miller's] testimony is not what a lying, self-interested witness looks like. If anyone has doubts about his credibility, I will issue you this challenge. This is a challenge to anyone who has any reservations about [Miller's] truthfulness or his credibility. If [Miller] decided that he was going to lie to help himself out, why would he even acknowledge that he heard from his brother that [Ayers] was dead? Why wouldn't he say that the first time he got that information as when [Johnson] confessed to him?
And why would he include another independent witness [Allison]? Why wouldn't he just say, you know what, he told me when [Allison] was at a pretrial, or he told it to me when we were both showing at the same time? Why would he include another person to that conversation, who he knows could deny it; especially when he knows that person is [Johnson's] friend, and not just his friend, his childhood friend, who he doesn't want anything bad to happen to him?

{¶ 64} None of these statements involve evidence or facts outside the record. They all relate to the evidence the jury heard and determined on its own. Thus, these comments did not constitute inappropriate vouching for Miller's credibility. Thus, there was no plain error. When viewed in its entirety, the prosecutor's closing argument neither materially prejudiced Johnson nor denied him a fair trial. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, at ¶ 120.

{¶ 65} Johnson also argues he was prejudiced by the cumulative effect of other errors. However, because we declined to find error within each of the prior assigned errors, the cumulative error doctrine does not apply to the instant case.

{¶ 66} Therefore, the fifth assignment of error is overruled.

Ineffective Assistance of Counsel

{¶ 67} In the sixth assignment of error, Johnson argues defense counsel was ineffective in the following instances: (1) failing to secure a continuance on the day of trial when the state presented the new cell phone evidence and secure an independent expert to analyze the results and offer independent testimony; (2) failing to secure a Daubert hearing on the reliability of the location triangulation; (3) failing to object to several instances of inadmissible hearsay and failing to object to improper arguments made by the state during closing argument; and (4) failing to request a competency evaluation.

{¶ 68} To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel's errors, the proceeding's result would have been different. Strickland v. Washington , 466 U.S. 668, 687-688, 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.

{¶ 69} In evaluating a claim of ineffective assistance of counsel, a court must give great deference to counsel's performance. Strickland at 689, 104 S.Ct. 2052. "A reviewing court will strongly presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." State v. Pawlak , 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, 2014 WL 2167887, ¶ 69.

{¶ 70} Johnson argues the state's case was "constructed entirely of circumstantial evidence, impermissible hearsay, and unreliable testimony." He argues the cell phone evidence was vital because there was no physical evidence linking him to the crime.

{¶ 71} We note the Ohio Supreme Court has stated that "the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel." State v. Nicholas , 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993), citing State v. Thompson , 33 Ohio St.3d 1, 10-11, 514 N.E.2d 407 (1987). Where the record does not indicate what kind of testimony an expert witness could have provided, the issue of whether counsel was deficient in failing to secure a defense expert is "purely speculative." State v. Madrigal , 87 Ohio St.3d 378, 390-91, 721 N.E.2d 52 (2000). Likewise, in the instant case, it is mere speculation whether an expert could have refuted Wiles's findings.

{¶ 72} Moreover, trial tactics and strategies do not constitute a denial of effective assistance of counsel. State v. Gooden , 8th Dist. Cuyahoga No. 88174, 2007-Ohio-2371, 2007 WL 1447712, ¶ 38, citing State v. Clayton , 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). " '[T]he fact that there was another and better strategy available does not amount to a breach of an essential duty to [one's] client.' " State v. Garcia , 8th Dist. Cuyahoga No. 102546, 2016-Ohio-585, 2016 WL 695100, quoting Clayton at 49, 402 N.E.2d 1189. Here, defense counsel specifically referred to "trial strategy" when deciding to decline the trial court's offer of a continuance on the day of trial. Based on the foregoing, we cannot say that defense counsel was ineffective for failing to obtain an expert to refute the cell phone evidence, request a continuance, or request a Daubert hearing.

{¶ 73} Johnson next argues that defense counsel was ineffective for failing to object to testimony offered by Officer Johnson and Andrea. He also claims defense counsel was ineffective for failing to object to impermissible arguments made by the state during closing arguments.

{¶ 74} We note, that defense counsel did object during both Officer Johnson's and Andrea's testimony. The trial court sustained an objection by counsel when Officer Johnson began to testify as to what Wright said. Defense counsel also objected during Andrea's testimony when she began to testify as to her conversation with Wright. Moreover, having found that this evidence was admissible, we cannot find defense counsel ineffective.

{¶ 75} With regard to closing arguments, Johnson claims trial counsel failed to object to the state's comments that Wright told Andrea that Johnson murdered her son. Specifically, the state said, "[Wright] tells [Andrea] who did the shooting, the one name that he knows." The context of the statement was that the evidence consistently pointed to Johnson as the shooter. The state did not say that Wright specifically told Andrea that Johnson murdered her son. Defense counsel was not ineffective based on the context of this statement.

{¶ 76} Lastly, Johnson argues defense counsel was ineffective for failing to request a competency evaluation when a 2010 test revealed that his IQ score was a composite of 40. Johnson does not allege that he was incompetent at the time of trial, but rather that defense counsel was ineffective for not requesting an evaluation. There was nothing in the record to suggest that Johnson's mental health in any way affected his ability to assist in his own defense. See State v. Lewis , 8th Dist. Cuyahoga No. 90101, 2008-Ohio-2935, 2008 WL 2424976 (where we rejected a claim of ineffective assistance of counsel stemming from an alleged failure to raise the issue of the defendant's competency). The record suggests that he understood the proceedings when engaged in a conversation with the trial court regarding the waiver of his right to a jury trial on certain counts and specifications.

{¶ 77} Because appellant has failed to demonstrate any deficiencies in the representation he received, we decline to find that he received ineffective assistance of counsel.

{¶ 78} Accordingly, the sixth assignment of error is overruled.

{¶ 79} Judgment is affirmed.

TIM McCORMACK, J., and EILEEN T. GALLAGHER, J., CONCUR

      Each of Counts 1-9 carried one- and three-year firearm specifications and a five-year "drive-by shooting" firearm specification.

      Both HWWUD counts and the firearm specifications were tried before the bench.

      Wright did not testify after asserting his Fifth Amendment right against self-incrimination.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant v. Mark A. NEWTON, Defendant-Appellee
    No. 105771
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 12, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Margaret Kane, Mary M. Frey, Assistant Prosecuting Attorneys, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT.
    Paul B. Daiker, Adam Brown, Larry W. Zukerman, Zukerman, Daiker & Lear Co., L.P.A., 3912 Prospect Avenue, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEE.
    BEFORE: E.A. Gallagher, A.J., McCormack, J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   EILEEN A. GALLAGHER, A.J.:

{¶ 1} Plaintiff-appellant the state of Ohio ("State") has appealed from the Cuyahoga County Common Pleas Court's judgment dismissing the case against defendant-appellee, Mark Newton. We affirm.

Introduction

{¶ 2} On September 12, 2016, Newton was indicted for two counts of rape, two counts of gross sexual imposition, two counts of kidnapping and two counts of sexual battery. The case proceeded to a bench trial and during the testimony of the alleged victim, J.E., it was revealed that the investigating detective assigned to the case, Jessica Page, had lost or destroyed a relevant diagram drawn by J.E. during a recorded interview. Upon examination, Page lied in an attempt to conceal her role in the matter. After the testimony of J.E., Page and a second detective involved in the case concluded, the trial court granted a motion to dismiss the case that was made by the defense.

{¶ 3} Our review here is limited to the issue as to whether the trial court erred in granting Newton's motion to dismiss and dismissing the case with prejudice.

Facts and Procedural History

{¶ 4} In 2015, J.E. alleged that Newton sexually assaulted her twice in 2013 in an equipment room at Laurel School in Shaker Heights, Ohio during the spring of her eighth grade year. J.E. described the alleged incidents at trial as follows: J.E. was a pitcher on a school softball team coached by Newton. During the second half of April, 2013 the team was practicing indoors in the "big gym" at Laurel. Newton approached J.E. and asked her to accompany him, alone, to a separate, smaller gym in the school for pitching practice. Newton and J.E. left the big gym and stopped at the "equipment room" located in a hallway between the two gyms. Newton opened the door to the equipment room and J.E. entered for the purpose of retrieving a bucket of balls located inside to be used for pitching practice. After J.E. entered, Newton closed the door behind them, approached J.E. and ran his hands underneath J.E.'s shorts and underwear, rubbing her vagina. When the incident ended, Newton apologized and J.E. exited the room and returned to practice in the big gym with her teammates. She did not tell anyone about what had happened. J.E. testified that she had accompanied Newton alone to pitching practice in the small gym several times during the next two weeks and nothing untoward had occurred at those times. J.E. further testified that approximately two weeks after the first incident in May 2013, a second incident occurred in a virtually identical fashion.

{¶ 5} Detective Jessica Page of the Shaker Heights Police Department was assigned to the case and conducted a recorded interview with J.E. on March 23, 2015, during which J.E. described the equipment room, later identified as room G0003, as containing shelves, bats, helmets and soccer balls. Later in the interview, J.E. noted that the room was an art room for a period of time while the school was being renovated. J.E. drew a diagram of the school that set forth the relevant rooms including the equipment room. Page took the diagram and entered it into their file.

{¶ 6} Detective Page admitted at trial that she described herself as J.E.'s "advocate" and made a number of statements during the first interview that the state concedes were inappropriate:

1) She described J.E.'s suggestion that Newton should be killed as an "appropriate response";
2) I'll do whatever my victim wants me to do;
3) I like sending people to prison though, don't get me wrong. So I will be here and I'll walk with you through the whole thing and I'll fight as hard as I can and I'll get as much evidence as I can * * * and I'll try and find everything I can find to help you;
4) You are not a bad witness;
5) You're putting the truth about what happened to yourself out there.
6) "Once someone is accused of being a sexual impositionist or someone who touches you know young ladies and takes advantage of their trust theres (sic) no going back from that whether you're convicted or not." Referencing Michael Jackson, Page stated, "the first thing that's gonna come up when you google his name is Mark Newton tried as [an] essentially rapist."

{¶ 7} After reviewing the recording of the first interview, Detective Page noticed that J.E. whispered something into her sleeve during a brief period when Page was out of the room. Page asked another Shaker Heights detective, Detective Walter Siegel, to review the video of the interview. Detective Siegel testified at trial that he listened to the relevant segment repeatedly and believed that J.E. whispered "I don't think she has the room right" in reference to the diagram created during the first interview. Based on this discrepancy, Detectives Page and Siegel conducted a joint interview with J.E. on April 21, 2016.

{¶ 8} During the second interview, J.E. denied making such a statement and the detectives questioned J.E. about her description of the equipment room. J.E. drew a second diagram featuring only the equipment room and circled the locations inside the room where the softballs were stored. It is impossible to discern from the video of the second interview where on the diagram J.E. placed the buckets of softballs. J.E. also described the room as musty, smelling of dust and containing catcher's equipment. J.E. contradicted this description at trial, testifying that the catcher's equipment had been in the room during a previous year and was not present at the time of the incidents.

{¶ 9} After the video of the second interview was played during the cross-examination of J.E., the trial court held a sidebar to address the second diagram. J.E. was excused from the courtroom and it was established that, prior to trial, Newton's counsel had requested that the state turn over the second diagram in discovery. The prosecutor explained that she had been informed by Detectives Page and Siegel that there was no second diagram.

{¶ 10} To address this discrepancy, the trial court allowed the parties to examine Detective Page. Page admitted that J.E. drew a second diagram during her second recorded interview and that she did not turn the diagram over to the prosecutor or Newton's counsel. Page testified that she did not know where the second diagram was, that she did not destroy it and that she did not think she had lost it but it might have been "shredded."

{¶ 11} Page was examined extensively about why the lost diagram had not been brought to the attention of the prosecutor or defense prior to trial. Page initially lied to the trial court, stating that she informed the prosecutor the week before trial that she believed there was a second diagram but that she could not find it. Upon further examination, however, Page admitted that she did not tell the prosecutor about the second diagram. According to Page, she did not remember the second diagram being created until the prosecutor contacted her about the defense's discovery request. At that point she informed the prosecutor and Detective Siegel that there was no second diagram. She subsequently reviewed the video from J.E.'s second interview and learned that a second diagram had been created. After she was unable to locate the diagram in her case file or desk, she chose not to inform Detective Siegel or the prosecutor of its existence prior to trial.

{¶ 12} Page admitted that she knew that the diagram contained information that could potentially be exculpatory for Newton. This was supported by the fact that Newton filed a notice of alibi prior to trial asserting that it was impossible for the alleged offenses to have occurred in the "equipment room" as claimed by J.E. because during the relevant time period that room was being used as an art storage room. Newton's notice of alibi noted his intent to present witnesses who would establish that the room did not contain any athletic equipment during that time, in contrast to J.E.'s allegations. Instead, Newton's attorney intended to establish that the room contained artwork and art tables. Page also conceded that J.E. had testified at trial that the softballs were lined up only along the side of a particular wall but in the video from the second interview J.E. appeared to draw the balls "all over the place." Aside from being inconsistent with J.E.'s trial testimony, such placement of the balls may have been inconsistent with the location of any art tables the defense intended to establish had been in the room. The precise locations of the balls in the second diagram could not be ascertained from the video of the interview.

{¶ 13} Following the examination of Detective Page, Newton's trial counsel moved to dismiss the charges against him due to the destruction of evidence. The trial court held its ruling on the motion in abeyance until the testimony of J.E. and Detectives Siegel and Page had been completed in order to determine if Newton's counsel could fairly cross-examine the witnesses about the contents of the missing diagram. During her cross-examination, J.E. denied drawing the location of the balls in a manner inconsistent with her prior testimony but conceded that the details of the diagram could not be discerned from the video of her second interview. J.E. admitted that the trial court would just have to take her word for it.

{¶ 14} After the conclusion of the testimony of J.E. and the two detectives, the trial court revisited Newton's motion to dismiss. After hearing arguments from the parties, the court issued a written decision dismissing the charges against Newton with prejudice. The court found that Detective Page concealed, suppressed or destroyed materially exculpatory evidence in bad faith. The court stated that it had considered lessor sanctions short of dismissal but concluded that "no lesser sanction could ever be appropriate under the facts of this case."

Law and Analysis

I. Was there a Due Process Violation?

{¶ 15} We review de novo a trial court's decision involving a motion to dismiss on the ground that the state failed to preserve exculpatory evidence. State v. Blackshaw , 8th Dist. Cuyahoga No. 85432, 2005-Ohio-5203, 2005 WL 2401629, ¶ 10. The suppression of materially exculpatory evidence violates a defendant's due process rights, regardless of whether the state acted in good or bad faith. State v. Geeslin , 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 9, citing Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

{¶ 16} We note that both parties cite to case law pertaining to discovery violations under Crim.R. 16. However, the cases cited are inapplicable to a case dealing with the destruction of evidence. See Bratenahl v. Osredkar , 8th Dist., 2017-Ohio-5811, 94 N.E.3d 1028, ¶ 15-16. Instead, specific tests are applied to determine whether the state's failure to preserve evidence rises to the level of a due process violation. The test depends on whether the lost or destroyed evidence involves "material exculpatory evidence" or "potentially useful evidence." State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 73.

{¶ 17} To be materially exculpatory, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta , 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). "Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt." Id. at 485, 104 S.Ct. 2528. The defendant bears the burden to show that the evidence was materially exculpatory. Powell at ¶ 74, citing State v. Jackson , 57 Ohio St.3d 29, 33, 565 N.E.2d 549 (1991).

{¶ 18} This court has previously held that the possibility that evidentiary material could have exculpated the defendant if preserved or tested is not enough to satisfy the standard of constitutional materiality. State v. Durham , 8th Dist. Cuyahoga No. 92681, 2010-Ohio-1416, 2010 WL 1254355, ¶ 12, citing Arizona v. Youngblood , 488 U.S. 51, 56, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). "A clear distinction is drawn by Youngblood between materially exculpatory evidence and potentially useful evidence. If the evidence in question is not materially exculpatory, but only potentially useful, the defendant must show bad faith on the part of the state in order to demonstrate a due process violation." Geeslin, 116 Ohio St.3d at 254, 2007-Ohio-5239, 878 N.E.2d 1. Therefore, when evidence is only potentially useful, its destruction does not violate due process unless the police acted in bad faith when destroying the evidence. Cleveland v. Townsend , 8th Dist. Cuyahoga No. 99256, 2013-Ohio-5421, 2013 WL 6571825, ¶ 22, citing State v. Miller , 161 Ohio App.3d 145, 2005-Ohio-2516, 829 N.E.2d 751 (2d Dist.).

{¶ 19} The term "bad faith" generally implies something more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive, or ill will partaking of the nature of the fraud. It also embraces actual intent to mislead or deceive another. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 81.

{¶ 20} In Durham , this court examined a situation where an alleged criminal incident was caught on videotape but no one viewed the videotape before it was erased. We noted that the videotape evidence might have been inculpatory or exculpatory or a combination of the two. We held that the defendant was unable to demonstrate that the evidence was materially exculpatory and we treated the erased video as only potentially useful. Durham at ¶ 21.

{¶ 21} In this case, we need not conclude that the exhibit was materially exculpatory to find a due process violation because it is undisputed that the second diagram was potentially useful to the defense and the record contains overwhelming evidence of bad faith on the part of Detective Page in the destruction or concealment of the diagram.

{¶ 22} Detective Page's bad faith is established by the following undisputed facts: 1) the lost diagram was created during J.E.'s second interview and was left in the possession of Detective Page; 2) unlike the diagram produced in J.E.'s first interview, Detective Page did not file the second diagram as evidence; 3) when Newton's counsel sought discovery of the diagram, Page denied its existence to Detective Siegel and the prosecuting attorney; 4) Page knew the diagram was lost or destroyed at least a week prior to trial but elected to conceal this fact from Detective Siegel and the prosecuting attorney; 5) when confronted with the above facts at trial, Page lied to the trial judge about what she had told the prosecuting attorney. Considering these facts and the previously detailed inappropriate statements made by Detective Page during the investigation, we agree with the trial court's conclusion that bad faith was established in the record.

II. Remedy

{¶ 23} Finally, the state argues that the trial court abused its discretion in dismissing the charges against Newton as a discovery sanction because the prosecuting attorney was not involved in the willful destruction or loss of the diagram. However, knowledge of evidence on the part of a law enforcement officer is imputed to the prosecution. State v. Wiles , 59 Ohio St.3d 71,78, 571 N.E.2d 97 (1991).

{¶ 24} The state again relies on a line of cases dealing with discovery violations under Crim.R. 16 including Lakewood v. Papadelis , 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987) ; State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971 ; State v. Parson , 6 Ohio St.3d 442, 453 N.E.2d 689 (1983) ; and State v. Clark , 8th Dist. Cuyahoga No. 88731, 2007-Ohio-3777, 2007 WL 2135118. The state cites Clark for the proposition that the actions of Detective Page should not be imputed to the prosecutor for the purpose of finding a willful violation of Crim.R. 16 under the three-part test for determining discovery sanctions set forth in Parson .

{¶ 25} However, as addressed above, this court has distinguished between cases involving discovery violations under Crim.R. 16 and cases dealing with the destruction of evidence in violation of a defendant's constitutional due process rights. See Osredkar , 8th Dist., 2017-Ohio-5811, 94 N.E.3d 1028, at ¶ 15-16. We specifically held that the three factor test from Parson is inapplicable where, as here, the information sought by the defense no longer exists because it has been destroyed. Id. This is not a case where the state suppressed exculpatory evidence that was discovered after the defendant's conviction and said evidence can be appropriately considered at a new trial. See, e.g. State v. Russell , 8th Dist. Cuyahoga No. 94345, 2011-Ohio-592, 2011 WL 494744.

{¶ 26} The United States Supreme Court described the process of reaching an appropriate remedy in cases involving the destruction of evidence as follows:

Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. * * * Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing * * * the State's most probative evidence.

Trombetta , 467 U.S. at 486-487, 104 S.Ct. 2528, 81 L.Ed.2d 413.

{¶ 27} Following Trombetta , federal courts have held that dismissal is appropriate where the disposition of evidence that is central to the case has permanently deprived the defendant of due process. United States v. Pasha , 797 F.3d 1122, 1138 (D.C.Cir.2015), citing United States v. Bohl , 25 F.3d 904, 914 (10th Cir.1994). We find that the loss or destruction of the second diagram in this case permanently deprived Newton of his ability to challenge J.E.'s account of the alleged incident and, therefore, permanently deprived him of due process.

{¶ 28} Our conclusion that dismissal was appropriate in this instance would not be changed even if we applied the Crim.R. 16 discovery sanction rule from Papadelis , 32 Ohio St.3d 1, 511 N.E.2d 1138, that "a trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery." Id. at paragraph two of the syllabus. The state has failed to proffer a reasonable alternative sanction short of dismissal. The record reflects that Detective Page lost or destroyed potentially exculpatory evidence that could have contradicted J.E.'s trial testimony and, in attempting to conceal this fact, went so far as to lie to another detective, the prosecuting attorney and the trial court about the circumstances of its disappearance. We cannot say that the trial court abused its discretion in electing to dismiss the case as a result of this misconduct and the depravation of Newton's due process rights.

{¶ 29} The judgment of the trial court is affirmed.

TIM McCORMACK, J., CONCURS and FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY

      We note that the trial court went to great lengths to exonerate the prosecuting attorney of any wrongdoing in relation to Detective Page's conduct and deceit.


author: SEAN C. GALLAGHER, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Christopher HILL, Defendant-Appellant
    No. 106017
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 12, 2018
    Thomas A. Rein, 820 West Superior Avenue, Suite 800, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Fallon Radigan, Assistant Prosecuting Attorney, Justice Center-9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: S. Gallagher, J., E.A. Gallagher, A.J., and McCormack, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.

{¶ 1} Christopher Hill appeals his conviction for involuntary manslaughter, the predicate offense being an unindicted, drug trafficking felony. The trial court imposed an 11-year prison term. We affirm.

{¶ 2} Hill frequently bought drugs from Jonathan Mentor. Mentor recalled ten transactions over three months preceding the death of Mentor's brother, in which Hill purchased marijuana, gummy edibles, and hash oil. Hill would text Mentor to arrange the transaction, which occurred at the same location, a house in Garfield Heights that belonged to Hill's friend. Mentor never carried a firearm and always came alone.

{¶ 3} On the day Mentor's brother was killed, Hill met Mentor in the morning to purchase drugs. Hill brought along Deon Bulger, a member of the Heartless Felons gang, whom Hill met while both were serving prison terms. Bulger was interested in buying drugs as well. Bulger inquired about a larger purchase, over twice the amount of drugs that Hill was purchasing. Mentor only brought what was needed for his deal with Hill, so the trio agreed that Hill would contact Mentor to set up a second buy between Mentor and Bulger later in the day. Mentor believed that Hill would be involved in the second purchase.

{¶ 4} Later in the afternoon, Hill contacted Mentor and set up the second transaction for the drugs Bulger had requested. Mentor was going out of town with two of his brothers and a friend. All four agreed to stop and allow Mentor to sell the drugs on their way out of town. Hill and Mentor agreed on a new location, but when Mentor arrived, the house appeared abandoned. Hill assured Mentor that the address was correct, through text messaging, going so far as to claim another friend lived there. Bulger then approached the vehicle, accompanied by an unknown person, and asked for the drugs. Bulger and his accomplice approached the parked car from both sides. Mentor revealed the merchandise, but refused to hand it over without Bulger first tendering payment. Bulger and his accomplice then drew firearms and demanded the drugs. Mentor's brother attempted to drive away. Bulger and his accomplice began firing into the car, killing Mentor's brother who had been driving.

{¶ 5} After the incident, Hill submitted himself to police custody and admitted to setting up the transaction between Bulger and Mentor, but disavowed any intent to conspire with Bulger. The state believed that Hill aided Bulger in the robbery, claiming that Hill facilitated the drug transaction as a ruse to get Mentor alone and in an unfamiliar location. The jury did not believe the state's theory, however, and all charges based on Hill conspiring with Bulger ended in an acquittal. The jury found Hill guilty of involuntary manslaughter, with the predicate offense being drug trafficking.

{¶ 6} R.C. 2903.04(A) provides that no person shall cause the death of another "as a proximate result of the offender's committing or attempting to commit a felony." The culpability required for involuntary manslaughter is based on the mens rea of the predicate offense. In this case, the state was required to prove that Hill knowingly sold or offered to sell a controlled substance under R.C. 2925.03(A). Although the jury was instructed to consider R.C. 2925.03(B), preparing for shipment, shipping, transporting, delivering, preparing for distribution, or distributing a controlled substance when the offender knows or has reason to believe that the controlled substance is intended for sale or resale, there was no evidence that Hill did any of those things before Mentor attempted to sell the drugs to Bulger. As a result, the only theory offered by the state was that Hill sold or offered to sell drugs by facilitating the transaction, or by aiding and abetting Mentor in committing the trafficking offense.

{¶ 7} This seems problematic for the state's involuntary manslaughter theory, which is based on the connection between Hill and Bulger. According to the state's theory, Hill aided and abetted both Bulger and Mentor despite the undisputed fact that Bulger had an antagonistic relationship to Mentor-Bulger intended to steal drugs from him. Thus, the proximate causation element of the involuntary manslaughter was based on Hill's relationship with Bulger, while the predicate offense was based on Hill's relationship with Mentor. On this point, the state repeatedly emphasized that Hill aided and abetted Mentor in the sale of drugs, but that Hill was also aware of the likelihood that Bulger would rob Mentor for the purposes of foreseeing the death of Mentor's brother. If Hill was aware of Bulger's intent or propensity to commit robbery, then how could Hill be deemed to have aided and abetted drug trafficking? If the state's theory is believed, Hill did not knowingly offer the controlled substances for sale or attempt to do so. The transaction was a ruse, arranged under false pretenses in order to facilitate the robbery. This arguably deprives Hill of the mental culpability of knowingly offering to sell drugs-Hill never intended to sell or offer to sell a controlled substance. As perplexing as the state's theory appears from the parties' discussion, Hill does not challenge that inconsistency. The state, therefore, is not under any obligation to furnish additional insight.

{¶ 8} In order to prove that Hill committed involuntary manslaughter, the state needs to demonstrate that the death of Mentor's brother was the proximate result of Hill's aiding and abetting Mentor in trafficking drugs. In order for criminal conduct to constitute the "proximate cause" of a result, "the conduct must have (1) caused the result, in that but for the conduct the result would not have occurred, and (2) the result must have been foreseeable." State v. Gibson , 8th Dist. Cuyahoga No. 98725, 2013-Ohio-4372, 2013 WL 5517927, ¶ 36, citing State v. Muntaser , 8th Dist. Cuyahoga No. 81915, 2003-Ohio-5809, 2003 WL 22455703, ¶ 38. It is not necessary for the defendant to foresee or know of the exact consequences of his conduct. Id. "The consequences are foreseeable if what actually transpired was natural and logical of the defendant's conduct and was within the scope of the risk created by the defendant." Id. Thus, proximate cause in this context is a two-part inquiry.

{¶ 9} In his appeal, Hill raises two arguments: (1) that Hill cannot be guilty of involuntary manslaughter because he was not present at the scene of the crime, and therefore, Hill did not knowingly cause the death of another; and (2) that his conviction is based on insufficient evidence or is against the manifest weight of the evidence in light of the state's failure to prove that Hill conspired with Bulger in committing aggravated robbery and murder. Neither argument has merit.

{¶ 10} Hill's argument that he did not knowingly cause the death of the victim is irrelevant. Under the involuntary manslaughter statute, R.C. 2903.04(A), the legislature criminalized a result-no person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a felony.

State v. Anthony , 2015-Ohio-2267, 37 N.E.3d 751, ¶ 72-73 (8th Dist.) (S. Gallagher, J., dissenting). The involuntary-manslaughter statute does not contain a mens rea component. State v. Fry , 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 43. The culpability required for involuntary manslaughter is the mens rea of the predicate offense. State v. Brown , 8th Dist. Cuyahoga No. 69149, 1996 WL 355296, 1996 Ohio App. LEXIS 2711, 10 (June 27, 1996), citing State v. Campbell , 74 Ohio App.3d 352, 358-359, 598 N.E.2d 1244 (1st Dist.1991). If the offender commits a felony offense with the requisite culpability and a death results proximately therefrom, the state has met its burden. Fry at ¶ 43 (discussing the same principle in terms of the felony murder statute); State v. Calise , 9th Dist. Summit No. 26027, 2012-Ohio-4797, 2012 WL 4897840, ¶ 72 (recognizing that felony murder and involuntary manslaughter both lack an independent mens rea component). Knowingly causing the death of another is the definition of murder, in which the legislature criminalized the conduct of knowingly killing another. R.C. 2903.02(A). The difference in culpability distinguishes the two crimes-murder criminalizes the conduct while involuntary manslaughter criminalizes the result.

{¶ 11} For the purposes of this appeal, we agree with Hill that no evidence demonstrated whether Hill knowingly caused the death of Mentor's brother or that he knew that Bulger would commit aggravated robbery leading to the death of Mentor's brother. Hill was not charged with murder, and the jury acquitted Hill of the robbery charges; therefore, Hill's argument is irrelevant. The issue is whether Hill knowingly sold or offered to sell controlled substances, an issue that has not been addressed in the appellate briefing by either party, and whether Hill's conduct in trafficking drugs created the foreseeable risk of the victim's death. App.R. 16(A)(7).

{¶ 12} The proximate cause determination is based on Hill's conduct. It is not necessary for the defendant to foresee or know of the exact consequences of his conduct. Id. "The consequences are foreseeable if what actually transpired was natural and logical of the defendant's conduct and was within the scope of the risk created by the defendant ." (Emphasis added.) Gibson , 8th Dist. Cuyahoga No. 98725, 2013-Ohio-4372, at ¶ 36, citing Muntaser , 8th Dist. Cuyahoga No. 81915, 2003-Ohio-5809, at ¶ 38. The focus of the proximate causation determination is on Hill's conduct and the foreseeable consequences of that conduct-that the death is foreseeable as a result of the aggravated robbery that Hill did not participate in is irrelevant. We have not been presented any arguments, from either side, with respect to whether the death of Mentor's brother was foreseeable because of Hill's aiding and abetting Mentor, who was never armed with a firearm when he sold controlled substances. App.R. 16(A)(7). Both parties focus on Hill's relationship and knowledge of Bulger's action, an issue the jury resolved against the state. In light of the lack of briefing, we cannot render a conclusion on that point. State v. Tate , 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21.

{¶ 13} With respect to the arguments challenging the weight or sufficiency of the evidence, Hill focuses on the failure to demonstrate Hill's participation or knowledge of the aggravated robbery. That argument is not based on the record and is also disregarded. Hill was acquitted of the aggravated robbery, which necessarily includes complicity to commit aggravated robbery. R.C. 2923.03(F). An appellant must present an argument that contains "the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." App.R. 16(A)(7) ; State v. Brown , 8th Dist. Cuyahoga No. 87932, 2007-Ohio-527, 2007 WL 416702, ¶ 13.

{¶ 14} The involuntary manslaughter conviction is based on drug trafficking. That discussion is rather limited. Hill first asks, "Is it foreseeable that every drug deal will result in an Aggravated Murder with a firearm?" In answering the rhetorical question, Hill asserts that "there is absolutely no evidence that [he] knew that Deon Bulger and his accomplice were going to commit aggravated robbery and/or aggravated murder." Again, if Hill had knowledge that Bulger intended to rob Mentor but nonetheless set up the drug deal, he would have been guilty of complicity to commit robbery. That argument necessarily implicates the acquittal, which ended in Hill's favor. Even so, if we considered Hill's conclusion to be true, which we must given the jury's verdict, it does not resolve the question of whether the victim's death was a proximate result of Hill committing the drug trafficking offense.

{¶ 15} The state attempted to address that question, claiming that "it is more often than not a drug dealer carries a firearm." According to the state, " '[e]xperience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment.' " State v. Bowers , 11th Dist. Trumbull No. 2016-T-0049, 2017-Ohio-2726, 2017 WL 1880821, ¶ 18, citing State v. Ogletree , 11th Dist. Portage No. 2005-P-0040, 2006-Ohio-6107, 2006 WL 3350764, ¶ 16. In light of the undisputed evidence that Mentor never carried a firearm while trafficking drugs, any reliance on Bowers appears misplaced.

{¶ 16} Without himself answering the question or responding to the state's argument, Hill argues, "assuming that the jury was properly instructed as to the underlying felony offense i.e. drug trafficking (which it was not) and was properly set forth in the jury verdict forms (which it was not)," that "there is absolutely no evidence that [he] knew that any of this would result in anyone's death." "Foreseeability is determined from the perspective of what the defendant knew or should have known, when viewed in light of ordinary experience." Gibson , 8th Dist. Cuyahoga No. 98725, 2013-Ohio-4372, at ¶ 36, citing Muntaser , 8th Dist. Cuyahoga No. 81915, 2003-Ohio-5809, at ¶ 38. Thus, Hill's entire argument presents the legal conclusion but no supporting analysis upon which we could reach that conclusion. App.R. 16(A)(7).

{¶ 17} The analysis provided instead focuses on Hill's belief that he cannot be convicted for involuntary manslaughter because the state failed to prove that Hill was complicit in Bulger's robbery. In light of the facts that Hill's participation in the robbery was not identified as the predicate offense for involuntary manslaughter and the jury determined Hill was not involved with the robbery, we overrule Hill's arguments challenging the sufficiency and the weight of the evidence. App.R. 16(A)(7). We could not reverse on the arguments presented, and we cannot undertake our own review of unbriefed issues.

{¶ 18} The conviction is affirmed.

EILEEN A. GALLAGHER, A.J., and TIM McCORMACK, J., CONCUR


author: KATHLEEN ANN KEOUGH, J.:

text:
    Andrew J. NATALE, Plaintiff-Appellant v. FRANTZ WARD, L.L.P., et al., Defendants-Appellees
    No. 106299
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 12, 2018
    Andrew A. Kabat, Haber, Polk & Kabat, L.L.P., 1300 W. 78th Street, Suite 305, Cleveland, Ohio 44102, ATTORNEY FOR APPELLANT.
    John F. McCaffrey, Michael C. Brink, Melissa Z. Kelly, Tucker Ellis, L.L.P., 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEES.
    BEFORE: Keough, J., Boyle, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   KATHLEEN ANN KEOUGH, J.:

{¶ 1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1. The purpose of an accelerated appeal is to allow this court to render a brief and conclusory opinion. State v. Priest , 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735, 2014 WL 1669161, ¶ 1.

{¶ 2} Plaintiff-appellant Andrew J. Natale ("Natale") appeals from the trial court's judgment granting the motion of defendants-appellees Frantz Ward L.L.P.; Frantz Ward partners Christopher G. Keim and Michael J. Frantz; Barbara J. Arison, the firm's general counsel, and Susan J. Abraham, the firm's chief financial advisor (collectively "defendants") to stay all proceedings and compel arbitration. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 3} Natale was a founding member and partner of Frantz Ward L.L.P. The firm's partnership agreement governs the relationship among its partners, including the eligibility requirements for an equity partner to retire upon the submission of a transition plan, or to receive disability retirement benefits. The agreement contains a broad arbitration provision that requires the partners to arbitrate "disputes arising under or relating in any fashion to this Agreement."

{¶ 4} In the summer of 2016, Natale began to experience significant health problems. He was later diagnosed with amyotrophic lateral sclerosis, a debilitating and ultimately fatal condition. Natale's subsequent efforts to obtain disability retirement benefits from the firm under the partnership agreement were unsuccessful.

{¶ 5} On May 6, 2017, Natale filed a demand for arbitration with the American Arbitration Association, seeking arbitration and resolution of his entitlement for disability retirement benefits as set forth in Sections 5F and 10 of the partnership agreement.

{¶ 6} Contemporaneously, he filed this action in common pleas court, asserting a single claim for intentional infliction of emotional distress. Paragraph 6 of the complaint states:

The claim asserted herein does not arise under or relate in any fashion to the Frantz Ward Partnership Agreement. Rather, the claim is based upon the intentional, tortious conduct of the parties, the partnership, and persons that are not equity partners including Susan Abraham and Barbara Arison, and is separate and distinct from the rights of Andrew Natale under the partnership agreement. No claim is made herein under the partnership agreement and Plaintiff does not rely upon any provision of the partnership agreement for the purposes of asserting this claim.

{¶ 7} Defendants filed an answer. They also filed a motion to stay all proceedings and compel arbitration, which the trial court granted. This appeal followed.

II. Law and Analysis

{¶ 8} In his first assignment of error, Natale contends that the trial court erred in granting defendants' motion to stay all proceedings and compel arbitration.

{¶ 9} R.C. 2711.01, et seq ., states that an action shall be stayed pending arbitration if the action "is brought upon any issues referable to arbitration under any agreement in writing for arbitration." R.C. 2711.02(B). Ohio courts recognize a presumption favoring arbitration when the parties' dispute falls within the scope of an arbitration agreement. Locum Med. Group, L.L.C. v. VJC Med. , 8th Dist. Cuyahoga No. 102512, 2015-Ohio-3037, 2015 WL 4599441, ¶ 10, citing Taylor Bldg. Corp. of Am. v. Benfield , 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12. Despite this presumption, parties cannot be compelled to arbitrate a dispute they have not agreed to submit to arbitration. Locum at id. , citing Council of Smaller Ents. v. Gates, McDonald & Co. , 80 Ohio St.3d 661, 687 N.E.2d 1352 (1998). Thus, a court has an independent duty to determine if the claims involved are subject to arbitration under the arbitration agreement. Locum at id. Any doubts regarding arbitrability should be resolved in favor of arbitration. Academy of Med. v. Aetna Health, Inc. , 108 Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488, ¶ 14. We review a trial court's decision regarding whether a party has agreed to submit an issue to arbitration under a de novo standard. Brownlee v. Cleveland Clinic Found. , 8th Dist. Cuyahoga No. 97707, 2012-Ohio-2212, 2012 WL 1795273, ¶ 8.

{¶ 10} In deciding whether a dispute falls within the scope of an arbitration agreement, "courts should 'ask if an action could be maintained without reference to the contract or relationship at issue. If it could, it is likely outside the scope of the arbitration agreement.' " Park Bldg. Condominium Assoc. v. Howells & Howells Enter., L.L.C. , 2017-Ohio-1561, 90 N.E.3d 131, ¶ 16, quoting Locum at ¶ 14. Under this standard, "even real torts can be covered by arbitration clauses if the allegations underlying the claims touch matters covered by the agreement." Alexander v. Wells Fargo Fin. Ohio 1, Inc. , 122 Ohio St.3d 341, 2009-Ohio-2962, 911 N.E.2d 286, ¶ 24.

{¶ 11} Natale asserts that his intentional infliction of emotional distress claim is not covered by the partnership agreement because the basis of his claim is the defendants' conduct, not any right or entitlement under the partnership agreement. He contends that his lawsuit does not challenge whether he is entitled to benefits under the agreement or whether the defendants' actions were based on a correct interpretation of the partnership agreement. Rather, he asserts, his lawsuit seeks damages for the defendants' egregious conduct toward him-conduct allegedly designed to force him to continue to work at Frantz Ward in order to protect the significant revenue stream from his work-despite the defendants' knowledge that he was peculiarly susceptible to emotional distress in light of his recent diagnosis, as well as the accompanying debilitating physical and emotional symptoms of the disease. Natale contends that the defendants' conduct was "separate and apart" from the partnership agreement.

{¶ 12} Our review of the complaint, however, demonstrates that Natale's claim "touches matters covered by" the partnership agreement. Paragraph 15 asserts that defendants "improperly and maliciously advised [him] that he did not qualify under the firm's retirement plan , despite [his] obvious disability and a specific disability retirement provision in the firm's operating documents." Paragraph 26 alleges that after Natale's counsel informed Frantz Ward of Natale's need to proceed with disability retirement, "Frantz Ward immediately called for an accelerated vote of the partners for the express purpose of changing, and eroding, the firm's retirement benefits ." Paragraph 16 alleges that Natale "continued his efforts to seek assistance from [defendants] in connection with his disability retirement and his transition " but was met with "repeated misinformation, misrepresentations, roadblocks and conduct not consistent with simple human decency." Paragraph 17 alleges that as his disease progressed, Natale sought assistance from defendants "to implement plans for his disability retirement and his transition from the partnership " but defendants "ignored and disregarded his requests and they concealed information and documentation in conscious disregard of his needs." Paragraph 18 alleges that defendant Keim did not "come forward with information about [Natale's] repeated requests for disability retirement or a transition plan " but told Natale he [Keim] was worried he could not pay for his house if Natale did not keep working. Paragraphs 20, 21, 22, 23, 25, and 27 also reference either Natale's request or need for "disability retirement ," or "disability or retirement benefits ." (Emphasis added.)

{¶ 13} The phrases used in the complaint reference Natale's requests for disability retirement benefits as provided by the partnership agreement, his plans to transition out of the partnership under the terms of the agreement, and defendants' actions and responses to those requests. Thus, a court would necessarily have to refer to the partnership agreement to understand the facts underlying his claim. Because on these facts the court could not decide the claim without reference to the agreement, the claim falls within the scope of the agreement's arbitration provision and must be arbitrated.

{¶ 14} Natale's citation to Arnold v. Burger King , 2015-Ohio-4485, 48 N.E.3d 69, is unavailing. In Arnold , the plaintiff asserted causes of action against her employer and supervisor that included claims for sexual assault and harassment after she was raped by her supervisor while at work. The employer and supervisor moved to compel arbitration under a broad arbitration agreement in which the plaintiff had agreed to submit to arbitration any claims arising out of her employment, as well as "claims or controversies relating to events outside the scope of your employment." Despite this broadly worded arbitration clause, this court held that the plaintiff's claims were not arbitrable because they were independent of her relationship with her employer and could be maintained without reference to any employment contract or employment relationship, and because they were not a foreseeable result of her employment. Id. at ¶ 65 and 67. The court also found that the arbitration provision was procedurally and substantively unconscionable. Id. at ¶ 83 and 104.

{¶ 15} Here, there is no allegation the arbitration provision is unconscionable. Further, Natale's claims are directly related to his partnership relationship with the defendants. Although his complaint does not seek a determination of his entitlement to disability benefits under the partnership agreement, it describes a dispute that arises directly from his claim of entitlement to those benefits, as set forth in the partnership agreement. Because on these facts Natale's claim "touches" matters covered by the agreement, it is subject to the arbitration provision contained in the agreement. Accordingly, the trial court properly granted defendants' motion to stay all proceedings and refer the matter to arbitration. The first assignment of error is overruled.

{¶ 16} In his second assignment of error, Natale contends that his claims against Arison and Abraham are not arbitrable because they are not parties to the partnership agreement, and that the trial court therefore erred in staying proceedings against them. This argument is without merit. "When a trial court determines that certain claims are subject to arbitration, it must stay the entire proceeding until those claims have been arbitrated, even though the action may involve both arbitrable and non-arbitrable claims." Maclin v. Greens Nursing & Assisted Living, L.L.C. , 8th Dist. Cuyahoga No. 101085, 2014-Ohio-2538, 2014 WL 2612666, ¶ 9. The second assignment of error is therefore overruled.

{¶ 17} Judgment affirmed.

MARY J. BOYLE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR