author: TEODOSIO, Presiding Judge.

text:
    STATE of Ohio, Appellee v. Andre M. YEAGER, Appellant
    Nos. 28604 28617
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: February 14, 2018
    NEIL P. AGARWAL, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   TEODOSIO, Presiding Judge.

{¶ 1} Defendant-Appellant, Andre Yeager, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.

I.

{¶ 2} A grand jury indicted Mr. Yeager in two separate criminal cases. In Case No. 2016-07-2429(A), he was indicted on one count each of receiving stolen property, possessing criminal tools, obstructing official business, and driving under suspension. In Case No. 2016-11-3971, he was indicted on four counts of breaking and entering. A court-appointed attorney initially represented Mr. Yeager in both cases, but withdrew from representation when Mr. Yeager declared his intention to represent himself. The trial court ultimately accepted Mr. Yeager's decision to waive his right to counsel and later appointed stand-by counsel to assist him at trial.

{¶ 3} Mr. Yeager's two cases were tried together. His counts for possessing criminal tools and driving under suspension were ultimately dismissed, but the jury found him guilty of each of his remaining counts. In Case No. 2016-07-2429(A), the court sentenced him to a total of six months in prison. In Case No. 2016-11-3971, the court sentenced him to a total of four years in prison and ordered him to pay $14,928.18 in restitution. The court ordered his sentences to run consecutively for a total of four and one-half years in prison.

{¶ 4} Mr. Yeager appealed his convictions in both cases, and this Court consolidated the two appeals for purposes of review and decision. Mr. Yeager raises six assignments of error for our review.

II.

ASSIGNMENT OF ERROR ONE

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT PERMITTED DEFENDANT TO PROCEED PRO SE WITHOUT SUBSTANTIALLY COMPLYING WITH CRIM.R. 44(A), AND IN VIOLATION OF SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION.

{¶ 5} In his first assignment of error, Mr. Yeager argues that the trial court violated Crim.R. 44 and his constitutional rights by allowing him to act pro se. He asserts that he is entitled to relief because the court did not ensure that his waiver of counsel was knowingly, voluntarily, and intelligently entered or reduced to writing and signed in open court. This Court rejects Mr. Yeager's argument.

{¶ 6} The Sixth Amendment guarantees a defendant both the right to counsel and "the right to elect self-representation instead." State v. Tucker , 2016-Ohio-1353, 62 N.E.3d 903, ¶ 11. A defendant who wishes to represent himself must knowingly, voluntarily, and intelligently waive his right to counsel. State v. Gibson , 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of the syllabus. Accord Crim.R. 44(A). Before accepting a defendant's waiver, "the trial court must make sufficient inquiry to determine whether [the] defendant fully understands and intelligently relinquishes [his] right." Gibson at paragraph two of the syllabus. Though "no one factor is dispositive," the Court should consider whether the defendant was advised of "the dangers and disadvantages of self[-]representation," "the nature of the charges and the range of allowable punishments," and "the possible defenses to the charges and applicable mitigating circumstances." State v. Trikilis , 9th Dist. Medina Nos. 04CA0096-M & 04CA0097-M, 2005-Ohio-4266, 2005 WL 1966780, ¶ 13. Additionally, the court may consider "various other factors, including the defendant's age, education, and legal experience." Id. It is not necessary that the court " 'undertake pseudo-legal representation of a defendant by specifically advising him of possible viable defenses or mitigating circumstances * * *.' " State v. Bloodworth , 9th Dist. Summit No. 26346, 2013-Ohio-248, 2013 WL 357100, ¶ 12, quoting City of Akron v. Ragle , 9th Dist. Summit No. 22137, 2005-Ohio-590, 2005 WL 356793, ¶ 12. "[A] broader discussion of defenses and mitigating circumstances as applicable to the pending charges is sufficient." Trikilis at ¶ 13.

{¶ 7} In felony cases, a waiver of counsel must be made in open court, recorded, and in writing. Crim.R. 44(C). "If a trial court substantially complies with Crim.R. 44(A), however, the failure to obtain a written waiver is harmless error." State v. Tucker , 2016-Ohio-1354, 62 N.E.3d 893, ¶ 17. A court substantially complies with Crim.R. 44(A)"by making a sufficient inquiry to determine whether the defendant fully understood and intelligently relinquished his or her right to counsel." State v. Martin , 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 39. This Court "review[s] whether a defendant has made a knowing, voluntary, and intelligent waiver of his right to counsel de novo." State v. Ott , 9th Dist. Summit No. 27953, 2017-Ohio-521, 2017 WL 659374, ¶ 5. "In determining the sufficiency of the trial court's inquiry in the context of a defendant's waiver of counsel, this Court reviews the totality of the circumstances." Trikilis at ¶ 13.

{¶ 8} Mr. Yeager had counsel for almost five months before he filed a pro se motion to represent himself. The court held a hearing on his motion the following week and, after permitting counsel to withdraw, spoke directly with Mr. Yeager. The court explained to Mr. Yeager the State's current plea offer, all of the charges against him, and the possible maximum sentences he faced. See id. The court also repeatedly emphasized that he would be "at a tremendous disadvantage" if he chose to represent himself because he would be responsible for knowing the rules of evidence and criminal procedure, identifying the issues, and raising any applicable defenses. The court offered to appoint new counsel for Mr. Yeager or to afford him more time to consider, but Mr. Yeager declined and indicated that he wished to represent himself. The court then asked Mr. Yeager whether he understood its warnings about self-representation and whether he understood that he would not receive "special consideration" if he chose to go forward without counsel. Each time the court inquired of Mr. Yeager, he indicated that he understood and wished to represent himself. The court, therefore, accepted Mr. Yeager's waiver of his right to counsel.

{¶ 9} The record reflects that the court did not strictly comply with Crim.R. 44(A) when it accepted Mr. Yeager's waiver because it did not reduce his waiver to writing. As noted, however, strict compliance with Crim.R. 44(A) is not required so long as a court, through adequate inquiry, ensures that a defendant fully understands and intelligently relinquishes his right to counsel. See Tucker , 2016-Ohio-1354, 62 N.E.3d 893, at ¶ 17 ; Martin , 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, at ¶ 39. Though Mr. Yeager argues that the court engaged in an inadequate inquiry, the record belies his argument. Moreover, to the extent that the court's initial inquiry was in any way limited, the record reflects that the court revisited the topic of counsel a number of times before Mr. Yeager actually went to trial.

{¶ 10} Four months ultimately elapsed between Mr. Yeager's initial request to represent himself and his trial. During that time, he filed a wealth of motions pertaining to discovery, potential Brady v. Maryland violations, prosecutorial misconduct, and suppression. The court conducted multiple pre-trials and, at the majority of them, spoke to Mr. Yeager about his decision to waive counsel. The court informed Mr. Yeager that he was placing himself at a disadvantage by not having counsel who could locate witnesses, timely file the proper motions, and sort out discovery matters on his behalf. Nevertheless, Mr. Yeager repeatedly rejected the court's offer to appoint him new counsel.

{¶ 11} One month before trial, the court held another pretrial and once more encouraged Mr. Yeager to accept new counsel. The court noted that an attorney would not suffer from the same time and access restrictions that Mr. Yeager faced while incarcerated. The court also asked Mr. Yeager whether he had a high-level of confidence as far as examining witnesses and speaking with the jury because he would have to handle those matters himself if he chose not to have counsel. The court informed Mr. Yeager that, while he seemed "bright enough," the court always discouraged lay people from representing themselves due to their unfamiliarity with the rules of evidence and procedure. During that conversation, the court explained to Mr. Yeager the concept of stand-by counsel and asked whether he would be willing to accept that option. Mr. Yeager ultimately agreed to stand-by counsel, but reiterated that he did not wish to accept the appointment of another attorney. Mr. Yeager represented to the court that "this [was] not [his] first time being pro se."

{¶ 12} Upon review, we must conclude that Mr. Yeager validly waived his right to counsel. The record reflects that he understood his right, but was adamant about his decision to represent himself. See Tucker , 2016-Ohio-1354, 62 N.E.3d 893, at ¶ 18-19. He indicated, on more than one occasion, that he understood he would be bound by the rules of evidence and criminal procedure if he chose to represent himself. He also indicated that he understood the charges against him and maximum penalties he faced if convicted. Further, he indicated that he understood the court's warnings about being "at a tremendous disadvantage" if he chose to represent himself. "The trial court sufficiently explained the dangers of self-representation, the nature of the charge[s] against [him], and the allowable penalties for [those] charge[s]." City of Akron v. Ragle , 9th Dist. Summit No. 22137, 2005-Ohio-590, 2005 WL 356793, ¶ 14. Moreover, there was evidence in the record that Mr. Yeager actively participated in the proceedings, seemed "bright," and represented that "this [was] not [his] first time being pro se." See Trikilis , 2005-Ohio-4266, at ¶ 13 (court may consider other relevant factors when allowing defendant to proceed pro se). Upon review of the totality of the circumstances, this Court rejects Mr. Yeager's argument that he did not knowingly, intelligently, and voluntarily waive his right to counsel. See id. Accord State v. Johnson , 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 97-105. His first assignment of error is overruled.

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT ALLOWED THE DEFENDANT TO PROCEED TO TRIAL WITH HYBRID REPRESENTATION IN VIOLATION OF [THE] SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

{¶ 13} In his second assignment of error, Mr. Yeager argues that the trial court committed plain error when it allowed him and his stand-by counsel to engage in hybrid-representation. This Court rejects his argument.

{¶ 14} Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." For plain error to exist:

First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be "plain" within the meaning of Crim.R. 52(B), an error must be an "obvious" defect in the trial proceedings. * * * Third, the error must have affected "substantial rights" * * * [and] affected the outcome of the trial.

(Internal citations omitted.) State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). 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, 372 N.E.2d 804 (1978), paragraph three of the syllabus. "[T]he accused bears the burden of proof to demonstrate plain error on the record * * *." State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.

{¶ 15} There "is no constitutional right to hybrid representation." State v. Pinckney , 9th Dist. Summit No. 28201, 2017-Ohio-2836, 2017 WL 2258174, ¶ 6. Accord State v. Jackson , 9th Dist. Summit Nos. 24463 & 24501, 2009-Ohio-4336, 2009 WL 2607962, ¶ 13 (right to counsel and right to self-representation "are independent of each other and may not be asserted simultaneously"). That is because "situations may arise in a hybrid representation environment where the accused and his 'co-counsel' disagree on strategy, which witnesses to call, and other key trial issues." State v. Martin , 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 33. Certain issues such as waiver cannot be decided unless a court can determine " 'who [is] actually responsible for the conduct of the defense * * *.' " State v. Rondon , 9th Dist. Summit No. 26637, 2013-Ohio-4175, 2013 WL 5433352, ¶ 8, quoting Martin at ¶ 34.

{¶ 16} It is undisputed that the trial court appointed Mr. Yeager stand-by counsel. The record reflects that Mr. Yeager conducted the vast majority of his defense, giving an opening statement and closing argument, examining all of the witnesses, and lodging virtually all of the objections. Even so, stand-by counsel also participated at several points in the proceedings. For instance, stand-by counsel conducted all of the voir dire, gave a brief opening statement that preceded Mr. Yeager's, argued Mr. Yeager's Crim.R. 29 motions, and gave a portion of the closing argument. Because criminal defendants are not entitled to hybrid representation, Mr. Yeager argues, the court committed plain error when it allowed both him and his stand-by counsel to participate in the proceedings.

{¶ 17} Mr. Yeager is correct that he had no right to hybrid-representation, and the trial court ought not to have allowed him to simultaneously assert his rights to counsel and self-representation. See Jackson at ¶ 13. Mr. Yeager has not explained, however, how any hybrid-representation he might have received in this matter affected the outcome of his trial. See Barnes , 94 Ohio St.3d at 27, 759 N.E.2d 1240 ; State v. Capers , 9th Dist. Lorain No. 10CA009801, 2011-Ohio-2443, 2011 WL 1992034, ¶ 14-15 (prejudice not demonstrated where defendant claimed plain error as a result of hybrid-representation). Though Mr. Yeager alleges plain error, he has not conducted any actual plain error analysis. See App.R. 16(A)(7). Moreover, it is not apparent on the face of the record that there was any actual conflict between Mr. Yeager and his stand-by counsel. Compare Rondon , 2013-Ohio-4175, at ¶ 11 (plea vacated where it was "unmistakably apparent on the face of the record" that discord between stand-by counsel and defendant undermined the "integrity of the plea process"). This Court will not conduct a prejudice analysis on Mr. Yeager's behalf. See State v. Banks , 9th Dist. Medina No. 16CA0084-M, 2017-Ohio-8777, 2017 WL 6002851, ¶ 35. Because he has not shown that any hybrid-representation that occurred here affected the outcome of his trial, we reject his plain error argument.

{¶ 18} Mr. Yeager also argues within the context of this assignment of error that he received ineffective assistance of counsel as a result of the hybrid-representation he received. His captioned assignment of error does not concern ineffective assistance of counsel, however, and he also has not conducted any analysis with regard to that argument. See State v. Pleban , 9th Dist. Lorain No. 10CA009789, 2011-Ohio-3254, 2011 WL 2571628, ¶ 41, quoting State v. Marzolf , 9th Dist. Summit No. 24459, 2009-Ohio-3001, 2009 WL 1798845, ¶ 16 ("An appellant's captioned assignment of error 'provides this Court with a roadmap on appeal and directs this Court's analysis.' "); App.R. 16(A)(7). As such, this Court will not address the merits of his ineffective assistance of counsel argument. Mr. Yeager's second assignment of error is overruled.

ASSIGNMENT OF ERROR THREE

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING COURT COSTS AGAINST THE DEFENDANT WHEN IT WAIVED IMPOSITION OF THOSE COSTS AT SENTENCING.

{¶ 19} In his third assignment of error, Mr. Yeager argues that the trial court erred when it ordered him to pay court costs without first affording him an opportunity to seek a waiver of those costs. For the reasons that follow, we reject Mr. Yeager's assignment of error.

{¶ 20} R.C. 2947.23 requires trial courts to impose court costs in criminal cases, and a trial court may waive the payment of costs upon the motion of an indigent defendant. State v. White , 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. In State v. Joseph , 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22-23 the Ohio Supreme Court held that a trial court commits reversible error when it fails to afford a defendant an opportunity to seek a waiver of court costs at his or her sentencing hearing. The result in that case, however, "was dictated by the fact that [the prior version of R.C. 2947.23 ] * * * required [defendants] to file a motion for waiver of costs at the time of sentencing." State v. Beasley , 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 264. The amended version of the statute now provides that trial courts retain jurisdiction " 'to waive, suspend, or modify the payment of the costs of prosecution * * * at the time of sentencing or at any time thereafter .' " (Emphasis sic.) Id. at ¶ 265, quoting R.C. 2947.23(C). Accordingly, State v. Joseph is no longer good law, and it is no longer necessary to remand matters so as to afford defendants the opportunity to seek a waiver. Beasley at ¶ 263-265. Because Mr. Yeager may file a motion to waive costs with the sentencing court at any time, "his request for a remand on this basis has no merit." Id. at ¶ 265. Mr. Yeager's third assignment of error is overruled.

ASSIGNMENT OF ERROR FOUR

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY NOT AWARDING DEFENDANT ALL HIS JAIL-TIME CREDIT.

{¶ 21} In his fourth assignment of error, Mr. Yeager argues that the court committed plain error when it failed to award him all of his jail-time credit. According to Mr. Yeager, the trial court either should have awarded him an additional 41 days of credit or held a hearing on the issue. We reject Mr. Yeager's assignment of error.

{¶ 22} When sentencing an offender, a trial court must

[d]etermine, notify the offender of, and include in the sentencing entry the number of days that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced and by which the department of rehabilitation and correction must reduce the stated prison term under [ R.C. 2967.191 ].

R.C. 2929.19(B)(2)(g)(i). An offender may challenge a trial court's jail-time credit calculation either on direct appeal or through a post-sentence motion.

State v. Reeves , 9th Dist. Summit Nos. 28632, 28679, 28680, 28681, and 28682, 2017-Ohio-9139, 2017 WL 6521584, ¶ 8.

{¶ 23} When the trial court sentenced Mr. Yeager, it did not award him a specific amount of jail-time credit. Instead, it ordered that "[t]he total days of being held will be computed and given credit for time served." Mr. Yeager responded by noting that he had been incarcerated from "October 3rd to now * * *." He did not request a jail-time credit hearing or object to the court's pronouncement that he would be credited for time served once it was calculated. The court later awarded him 129 days of jail-time credit.

{¶ 24} According to Mr. Yeager, the trial court erred by not awarding him 170 days of credit or holding a hearing to determine the appropriate amount of credit. Because he did not object to the procedure the court employed, he is now limited to a claim of plain error. See State v. Watson , 9th Dist. Summit No. 28218, 2017-Ohio-7856, 2017 WL 4287898, ¶ 14. We, therefore, incorporate the plain error standard set forth in the discussion of his second assignment of error.

{¶ 25} Mr. Yeager has not explained why the trial court erred by calculating his jail-time credit without first holding a hearing. A trial court need only conduct a hearing on jail-time credit "if one is requested." R.C. 2929.19(B)(2)(g)(i). Mr. Yeager never asked the trial court to conduct a hearing on jail-time credit. Although he made a statement that he had been incarcerated from "October 3rd to now * * *," he gave no indication that he wanted to present evidence on that issue. Moreover, because the court had yet to compute his time, there was no indication at that point that Mr. Yeager would contest the court's computation. Mr. Yeager has not shown that the court erred by not holding a hearing when no hearing was requested. As such, this Court rejects that portion of his argument.

{¶ 26} Insofar as Mr. Yeager argues that he is entitled to 41 additional days of jail-time credit, we must conclude that he has not satisfied his burden of demonstrating plain error. See Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22. Mr. Yeager claims, without citing any portion of the record, that he is entitled to 170 days of credit because he was incarcerated "from October 3, 2016 to March 21, 2017." Upon review of the record, however, this Court is unable to verify those dates. It appears that, on October 13, 2016, Mr. Yeager was scheduled for a status hearing, but did not appear because he was being held at the Cleveland House of Corrections/Cleveland Workhouse. At the status hearing, his former attorney notified the court that Mr. Yeager was being held on an unrelated matter. Pursuant to R.C. 2929.19(B)(2)(g)(i), an offender is only entitled to jail-time credit for the days he has been confined "for any reason arising out of the offense for which [he] is being sentenced * * *." Thus, if Mr. Yeager was being held on another matter, he was not entitled to jail-time credit for purposes of this case.

{¶ 27} Apart from setting forth a blanket statement that he is entitled to additional credit, Mr. Yeager has made no attempt to point to any evidence tending to show that the court did not properly calculate his jail-time credit. This Court will not construct an argument on his behalf. See State v. Gordon , 2017-Ohio-7147, 95 N.E.3d 994, ¶ 43. Accordingly, we reject Mr. Yeager's argument that the court erred by awarding him 129 days of credit. See Watson , 2017-Ohio-7856, at ¶ 17. His fourth assignment of error is overruled.

ASSIGNMENT OF ERROR FIVE

THE TRIAL COURT COMMITTED REVERSIBLE (sic) IN ORDERING DEFENDANT TO PAY RESTITUTION WITHOUT MAKING AN ABILITY-TO-PAY FINDING AND WITHOUT GIVING THE DEFENDANT THE RIGHT TO CROSS-EXAMINE THE STATE'S EVIDENCE.

{¶ 28} In his fifth assignment of error, Mr. Yeager argues that the court erred when it ordered him to pay restitution without first inquiring about his ability to pay. We agree.

{¶ 29} R.C. 2929.18(A)(1) authorizes a sentencing court to order financial sanctions, including restitution, to the victim.

Restitution may be based on "an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information" as long as the amount does not exceed the economic loss suffered by the victim as a result of the commission of the offense.

State v. Stevens , 9th Dist. Medina Nos. 16CA0033-M & 16CA0034-M, 2017-Ohio-5482, 2017 WL 2743575, ¶ 17, quoting R.C. 2929.18(A)(1). A trial court must "consider the offender's present and future ability to pay prior to imposing a financial sanction." State v. Norris , 9th Dist. Summit No. 27630, 2016-Ohio-1526, 2016 WL 1450185, ¶ 28, citing R.C. 2929.19(B)(5). " '[T]here are no express factors that must be taken into consideration or findings regarding the offender's ability to pay that must be made on the record.' " State v. Williams , 9th Dist. Summit No. 26014, 2012-Ohio-5873, 2012 WL 6206843, ¶ 17, quoting State v. Martin , 140 Ohio App.3d 326, 327, 747 N.E.2d 318 (4th Dist.2000). "Even so, the record must reflect that the court actually considered the defendant's ability to pay." Williams at ¶ 17. "A trial court commits plain error by ordering a defendant to pay restitution without first considering his ability to pay." Id.

{¶ 30} The record reflects and the State concedes that the trial court ordered Mr. Yeager to pay $14,928.18 in restitution without first considering his ability to pay. Because there is no indication in the record that the court actually considered his ability to pay, "the trial court committed plain error and must make a determination regarding [his] ability to pay restitution on remand." Norris at ¶ 29. Mr. Yeager also argues that the court erred by not affording him an opportunity to cross-examine witnesses about the amount of restitution he owed. Given that this matter must be remanded for an initial determination of his ability to pay restitution, however, his additional argument is premature, and we decline to address it. Mr. Yeager's fifth assignment of error is sustained, and the matter is remanded for an ability to pay determination.

ASSIGNMENT OF ERROR SIX

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DENIED DEFENDANT A FAIR TRIAL.

{¶ 31} In his sixth assignment of error, Mr. Yeager argues that cumulative error deprived him of his right to a fair trial. We disagree.

{¶ 32} Cumulative error exists only where the errors during trial actually "deprive[d] a defendant of the constitutional right to a fair trial." State v. DeMarco , 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. " '[T]here can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee such a trial.' " State v. Hill , 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996), quoting United States v. Hasting , 461 U.S. 499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). To support a claim of cumulative error, there must be multiple instances of harmless error. State v. Garner , 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). "Because this Court did not find multiple instances of error, the cumulative error doctrine does not apply." State v. Jamison , 9th Dist. Summit No. 27664, 2016-Ohio-5122, 2016 WL 4037193, ¶ 40. Mr. Yeager's sixth assignment of error is overruled.

III.

{¶ 33} Mr. Yeager's fifth assignment of error is sustained, and his remaining assignments of error are overruled. On remand, the trial court must make a determination regarding Mr. Yeager's ability to pay restitution. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent with the foregoing opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

HENSAL, J.

CALLAHAN, J.

CONCUR.

      Notably, Mr. Yeager has not raised as error that the trial court violated R.C. 2929.19(B)(2)(g) by failing to notify him of his actual jail-time credit calculation at the sentencing hearing. Because the court addressed the issue of jail-time credit at the hearing, any error he raised in that regard would be subject to plain error analysis. See State v. Watson , 9th Dist. Summit No. 28218, 2017-Ohio-7856, 2017 WL 4287898, ¶ 13-15. As he has not set forth a claim of plain error on that basis, however, this Court will not construct an argument on his behalf. See State v. Smith , 9th Dist. Medina No. 17CA0035-M, 2017-Ohio-8680, 2017 WL 5706133, ¶ 7.


source: Caselaw Access Project

author: Zayas, Judge.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Kyle FINNELL, Defendant-Appellant.
    NO. C-160815
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: February 14, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos, Assistant Public Defender, for Defendant-Appellant.
    OPINION.
   Zayas, Judge.

{¶ 1} Kyle Finnell appeals the judgment of the Hamilton County Court of Common Pleas denying his motion to disclose juror information under seal and denying his motion for a new trial. In his second assignment of error, Finnell argues that defense counsel was ineffective for failing to articulate to the court that he was entitled to the juror information under Evid.R. 606(B) because the jurors were allowed to testify regarding any threats or attempted threats. We agree, and we reverse the trial court's judgment denying the motion to disclose juror information and remand the cause with instructions to the trial court to release the juror information under seal. The judgment on the motion for a new trial is vacated.

Background Facts

{¶ 2} In June 2014, Kyle Finnell was convicted, after a jury trial, of aggravated burglary with a firearm specification, burglary, aggravated robbery with firearm specifications, robbery, kidnapping, two counts of having weapons while under a disability and intimidation of a witness.

{¶ 3} Before sentencing, Finnell filed a motion for a new trial under Crim.R. 33 alleging that two of the jurors committed misconduct by failing to immediately report to the court that they believed Finnell had followed them after the first day of deliberations in an attempt to intimidate them. Under Crim.R. 33, a new trial may be granted when juror misconduct materially affected the defendant's substantial rights. Crim.R. 33(A)(2). Allegations of juror misconduct "must be sustained by affidavit showing their truth, and may be controverted by affidavit." Crim.R. 33(C).

{¶ 4} Finnell moved the court for a new trial because the perceived intimidation may have biased the jurors during deliberations. According to the motion, the jurors did not inform the bailiff of the intimidating contact until after the verdict had been recorded, and this prevented the trial court from conducting a hearing to determine the contact's potential impact on the jurors' ability to perform their duty impartially. See Remmer v. United States , 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (holding that a trial court must conduct a hearing when any improper contact occurs with a juror during a criminal trial to determine the circumstances and the impact on the juror).

{¶ 5} Although the judge had recused himself from hearing the motion for a new trial, he conducted a hearing on the motion prior to sentencing Finnell. During the hearing, the parties and the court discussed the off-record conversation that some jurors had had with the court's bailiff after the delivery of the verdict. The discussion indicates that the jurors had encountered the defendant outside the courthouse after deliberations one afternoon. After the jurors reported their concerns to the bailiff, the trial judge spoke with them and then later informed defense counsel of his communication with the jurors.

{¶ 6} Based on the information from the trial judge, defense counsel characterized the jurors' encounter as a perceived threat of intimidation that was not reported until after the rendering of the verdict. Finnell and the state then stipulated to the following: "That there was no communication regarding any issues of intimidation toward jury members prior to the rendering of the verdict." The trial court overruled the motion for a new trial after concluding that Evid.R. 606(B) prohibited the jurors from testifying about the contact because no outside evidence of the contact was submitted by Finnell.

{¶ 7} In relevant part, Evid.R. 606(B) states,

A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented. However a juror may testify without the presentation of any outside evidence concerning any threat, any bribe, any attempted threat or bribe, or any improprieties of any officer of the court.

Therefore, if there is evidence of a threat or an attempted threat, no outside evidence of the threat is required to be presented before a juror may testify.

{¶ 8} On appeal, we concluded that the trial court had erroneously ruled on the motion for a new trial after the judge had recused himself. State v. Finnell , 1st Dist. Hamilton Nos. C-140547 and C-140548, 2015-Ohio-4842, 2015 WL 7572207, ¶ 47. We vacated the order and remanded the cause for a new hearing on the motion. Id. at ¶ 77. Upon remand, the case was reassigned to another judge.

Proceeding upon Remand

{¶ 9} Substitute counsel for Finnell filed a motion to "Disclose Juror Information" asking the trial court to disclose juror contact information under seal to enable Finnell to secure their testimony for the hearing on the motion for a new trial. In the motion, Finnell's counsel argued that the jurors were permitted to testify under Evid.R. 606(B) because "a juror may testify without the presentation of any outside evidence concerning any threat * * *."

{¶ 10} But, significantly, at the hearing on the motion, Finnell's counsel did not argue that the jurors could testify under Evid.R. 606(B) because of the issues of intimidation, and counsel did not inform the trial court that the state had stipulated previously to the issues of juror intimidation. Instead, counsel argued that Evid.R. 606(B) permitted jurors to testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention. Counsel continued that she also had outside information from the bailiff who had spoken with the jurors, and she would present this evidence during the hearing on the motion for a new trial. The state argued the testimony from the bailiff would not be firsthand information because the bailiff did not see what happened outside of the courthouse. And because there was no outside evidence, disclosure of the jurors' contact information was not justified under Evid.R. 606(B).

{¶ 11} The trial court denied the motion for a new trial because the record contained no "independent evidence that would allow the court to grant the motion."

{¶ 12} After the motion for the juror information was denied, the trial court conducted the hearing on the motion for a new trial. Finnell testified that as he was leaving the courthouse, he was standing in the small area by the side door waiting for someone with a security badge to open the door. At the time, he was talking on the phone. When the door was opened, he walked to the front of the courthouse, and waited for his ride. He did not remember seeing any jurors while he was talking on the phone or waiting for his ride home. He further testified that he did not attempt to intimidate, influence, or threaten any of the jurors during the trial. No other evidence was submitted to the court.

{¶ 13} Finnell argued that the court should grant the motion for a new trial because there was a question as to whether the jury was fair and impartial during deliberations due to the perceived intimidation. Additionally, the jurors had committed misconduct by failing to report the contact to the trial court immediately. The state argued that the motion should be denied because there was no evidence that the jurors were intimidated or threatened.

{¶ 14} The trial court denied the motion because Finnell failed to submit any evidence or affidavits demonstrating juror misconduct as required by Crim.R. 33(C).

{¶ 15} Finnell appeals raising two assignments of error.

Ineffective Assistance of Counsel

{¶ 16} We address the assignments of error out of order because Finnell's second assignment of error is dispositive. In his second assignment of error, Finnell argues that his trial counsel was ineffective, in violation of his constitutional rights. Finnell contends counsel failed to explain to the court that the jurors were competent to testify in support of his motion for a new trial on the issue of a perceived threat or attempted threat that affected their deliberations, without any outside evidence in support, as provided by the exception under Evid.R. 606(B), and therefore, he was entitled to the juror information under seal. We agree.

{¶ 17} To establish a claim for ineffective assistance of counsel, the defendant has the burden of demonstrating that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) there is a reasonable probability that the result of the proceeding would have been different had defense counsel provided proper representation. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶ 18} The record in this case suggested that some jurors had perceived potential intimidation by the defendant. Importantly, at the first hearing on the motion for a new trial the parties stipulated to the existence of issues of juror intimidation. However, following our remand and reassignment to a different judge, at the hearing on the motion to disclose juror information, substitute counsel failed to inform the trial court of the stipulation or argue that the stipulation allowed the jurors to testify under the exception in Evid.R. 606(B) without outside evidence in support. Under these facts, counsel's failure to argue that the jurors could be competent to testify in support of the new trial motion was deficient.

{¶ 19} Moreover, the failure prejudiced Finnell. Had counsel presented the proper argument, there is a reasonable probability that the court would have granted the motion and disclosed the juror contact information under seal so that Finnell could secure the jurors' testimony in support of his motion for a new trial. Therefore, Finnell's second assignment of error is well-taken, and his first assignment of error, which argued that the trial court erred in denying both motions, is rendered moot.

Conclusion

{¶ 20} Accordingly, we sustain the second assignment of error. The judgment of the trial court denying the motion to disclose juror information is reversed, and the order denying the motion for a new trial is vacated. We remand the cause with instructions to the trial court to release the juror information under seal and for further proceedings consistent with this opinion and the law.

Judgment accordingly.

Cunningham, P.J., and Deters, J., concur.


author: Hoffman, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Marcelluis T. LUCKIE, Defendant-Appellant
    No's. 16CA91, 16CA92, 16CA93
    Court of Appeals of Ohio, Fifth District, Richland County.
    DATE OF JUDGMENT ENTRY: February 14, 2018
    GARY BISHOP, Prosecuting Attorney, Richland County, Ohio, By: JOSEPH C. SNYDER, Assistant Prosecuting Attorney, 38 South Park Street, Mansfield, Ohio 44902, For Plaintiff-Appellee
    DAVID M. WATSON, 3 North Main Street, Suite 702, Mansfield, Ohio 44902, For Defendant-Appellant
    JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. William B. Hoffman, J.
   Hoffman, J.

{¶ 1} Appellant Marcelluis Luckie appeals the judgment entered by the Richland County Common Pleas Court convicting him of having a weapon under disability ( R.C. 2923.13(A)(2),(3) ), aggravated murder ( R.C. 2903.01(B), four counts of kidnapping ( R.C. 2905.01 ), aggravated burglary ( R.C. 2911.11 ), robbery ( R.C. 2911.02 ), tampering with evidence ( R.C. 2921.12 ), complicity to commit aggravated burglary ( R.C. 2911.11 ), two counts complicity to commit aggravated robbery ( R.C. 2911.01 )and injuring animals (R.C. 959.92), with firearm and repeat violent offender specifications, and sentencing him to an aggregate term of 115 years incarceration to be served consecutively to a term of life imprisonment without possibility of parole. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶ 2} In the early morning hours of June 24, 2015, Uvon Burns was asleep in her bedroom when she awoke to a man pointing a gun at her, demanding drugs and money. When her dog moved to protect her, the intruder shot the dog. She had no drugs, but tossed her purse at him which contained her tip money from bartending at the American Legion the night before. He picked up the purse and ran.

{¶ 3} Burns discovered her boyfriend, Jason O'Neal, had climbed into bed with her after she fell asleep. He laid still so the intruder would not see him. He heard the intruder ask for weed and money. He saw the silhouette of a man in a grey hoodie drawn tight, holding a gun. He noted a tattoo on the intruder's hand, and a pair of Nike boots he had earlier seen on Christian Ramirez, Appellant's co-defendant. He was later able to identify Ramirez by his voice as well as the tattoo and boots.

{¶ 4} Burns and O'Neal called the police and discovered the intruder gained entry into the home by kicking the panel out of the front door. The dog survived after receiving emergency veterinary care.

{¶ 5} At two o'clock that morning, Appellant woke up his girlfriend, Andrea McDowell, to tell her Burns had been robbed and her dog had been shot. McDowell and Burns were coworkers and friends. He claimed he heard about the incident from his friend George Kelly. He insisted they check on Burns the next morning, and they drove to Burns' house. Appellant told Burns and O'Neal he was sorry about their dog. O'Neal found it strange Appellant knew about the dog because the incident was not yet public knowledge.

{¶ 6} On June 25, 2015, Christshanda Webb was at the home of her brother, Myron Webb, waiting for a cable service installer to arrive. She heard a knock on the back door. She checked the front of the house for a cable van, but no one was there. Others in the house checked the rear door and found Ramirez attempting to force his way into the house. When he noticed people in the house, he ran. Christshanda walked up the street in the direction Ramirez was headed. She saw Appellant approach driving a black Pontiac, and Ramirez jumped on the hood.

{¶ 7} Shamille Chapman and her baby were asleep on the couch on June 26, 2015, when she awoke to find Appellant and Ramirez standing over her, asking for money and drugs. Appellant held a gun, and Ramirez held a crowbar. Appellant was wearing a black Ohio State hoodie, a mask, gloves, and Hello Kitty glasses. Ramirez was dressed in all black. Ramirez took electronics from the house and put them in bags. The men asked her to have her son come downstairs, and they held him at gunpoint with Chapman. The men demanded she call her boyfriend, Myron Webb, to ask him to come home, and threatened her if she warned him something was amiss. She called Webb and asked him to come home. The men continued to ransack the house while waiting for Webb to arrive, asking her to call Webb multiple times. Appellant and Ramirez tied up Chapman's son with t-shirts and an electrical cord.

{¶ 8} When Webb arrived home, the men ordered him to the ground. They told Webb they heard he had "bricks." Webb responded he did not have drugs, but gave them his money. Unhappy with what they had received, the men planned to stay all night and have Webb withdraw money from the bank for them the next morning. They told Webb they would put a pillowcase over his head and take the baby with them. Webb asked them not to involve his family. When they ordered Webb to walk toward the kitchen, Webb charged the men. Chapman grabbed the baby and ran into the kitchen where her son was tied up. She got outside with her son and the baby and screamed for the neighbors to call 911.

{¶ 9} After seeing Appellant and Ramirez run away, Chapman went back into the house where she found Webb rolling around on the ground, bleeding from stab wounds to his head, neck, back, and upper arms. He was transported to the hospital where he died the following day. The medical examiner found twenty-five stab wounds on Webb.

{¶ 10} At 2:00 a.m. on June 26, 2015, McDowell awoke and found Appellant in the kitchen with what appeared to be blood on the back of his shirt. Shortly thereafter, Appellant asked McDowell to help him put disinfectant on wounds on his shoulder and elbow. Appellant claimed she saw a logo rather than blood on the shirt, but the next morning Appellant told McDowell he threw the shirt in the river.

{¶ 11} During the afternoon of June 26, 2015, O'Neal saw Ramirez with a group of people gathered outside a friend's house. During a conversation, O'Neal recognized Ramirez's voice from the break-in on June 24, 2015. O'Neal punched Ramirez and choked him. After he was beaten by O'Neal, Ramirez called his grandfather and told him to get rid of bullets and a pair of "Jordans" which were at his house. Ramirez then called Appellant and told him he got beat up over shooting O'Neal's dog. Ramirez changed his shoes at his house and his clothes at his mother's house before going to the hospital, where he claimed his injuries were the result of a fall from a tree.

{¶ 12} Chapman's neighbors had reported seeing Appellant and Ramirez flee the scene of the attack on Webb in a black Pontiac Grand Prix. When police went to Ramirez's house to question witnesses, they found a black Pontiac which they identified as the vehicle they were looking for in connection with Webb's murder. Police could see blood on the steering wheel and a tire iron in the car. They found the vehicle was registered to McDowell. Blood was later discovered on the driver's side door, the steering wheel, and the center console lid. DNA testing from the steering wheel cover showed a DNA mixture including Webb and Ramirez. Webb's blood was also found under the passenger door handle and at two locations on the driver's seat.

{¶ 13} Appellant was indicted with one count of having weapons under disability in case number 2015-CR-0665. He was indicted in case number 2015-CR-0756 on two counts aggravated murder, four counts kidnapping, aggravated burglary, robbery, and tampering with evidence with firearm and repeat violent offender specifications for the events of June 25, 2015. He was indicted in case number 2016-CR-0400 with complicity to aggravated burglary, two counts of complicity to aggravated robbery, and one count of complicity to injure animals, with firearm specifications, for the events of June 24, 2015.

{¶ 14} The indictments were consolidated for trial, and consolidated with the codefendant Ramirez for trial. The case proceeded to jury trial. Appellant was convicted of all counts except one of the two counts of aggravated murder. He was sentenced to a term of life imprisonment without possibility of parole on the aggravated murder conviction, and an aggregate of 115 years incarceration on the remaining charges, to be served consecutively. From the judgments of conviction and sentence Appellant prosecutes this appeal, assigning as error:

"I. THE TRIAL COURT ERRED BY JOINING OFFENSES IN ONE TRIAL.
"II. THE TRIAL COURT ERRED BY JOINING MR. LUCKIE WITH CHRISTEN RAMIREZ IN ONE TRIAL.
"III. THE TRIAL COURT ERRED BY DENYING THE MOTION FOR NEW TRIAL.
"IV. THE TRIAL COURT ERRED BY PERMITTING THE JURY TO HEAR TESTIMONY FROM WITNESS O'NEAL IN VIOLATION OF THE BRUTON DOCTRINE.
"V. THE TRIAL COURT ERRED BY PERMITTING THE JURY TO HEAR TESTIMONY FROM WITNESS MATHEWS IN VIOLATION OF THE BRUTON DOCTRINE."

I.

{¶ 15} Appellant argues the court erred in joining his three separate indictments into one trial. The State moved for joinder of offenses and defendants. Appellant objected to joinder, and the trial court held a hearing on the motion. Following the hearing, the court ruled as follows:

This matter came before the Court upon the motion of the State of Ohio to consolidate all of the above cases for one jury trial. The Court finds that Defendant Marcellus [sic] Luckie and Defendant Christian [sic] Ramirez have each been indicted for the same criminal activity as co-defendants. The criminal activity that each defendant has been indicted with relates to a home invasion type of robbery and burglary that occurred on June 23, 2015 and another similar type of home invasion type of robbery and burglary that occurred on June 26, 2015. In the second offense the State of Ohio alleges that the defendants while acting together murdered Myron Webb. The State contends that all of these offenses were committed as a part of a course of criminal conduct by those defendants while they were acting together.
Based on the arguments of the parties the Court believes that all of these offenses should be consolidated for one trial. Defendant Ramirez, through counsel, has raised the issue that a single statement made by Defendant Luckie to a witness could be used by the State of Ohio to incriminate Defendant Ramirez.
The statement in question on its face does not incriminate Defendant Ramirez. However, the statement could be used to infer Defendant Ramirez's guilt and therefore the Court will not permit the State of Ohio to introduce that particular single statement at the joint trial. This will alleviate any possible Bruton issue and there is no reason not to consolidate the cases for a single trial.
Judgment Entry, August 18, 2016.

{¶ 16} Joinder of offenses is governed by Crim. R. 8(A), which states offenses may be joined if they are of the same or similar character, are based on the same act or transaction, or are based on two or more acts or transactions connected together or part of a common scheme or course of criminal conduct. Joinder is liberally permitted to conserve judicial resources, reduce the chance of incongruous results in successive trials, and diminish inconvenience to witnesses. See , State v. Torres , 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). Joinder is appropriate where the evidence is interlocking and the jury is capable of segregating the proof required for each offense. State v. Czajka , 101 Ohio App.3d 564, 577-578, 656 N.E.2d 9 (8th Dist. Cuyahoga 1995).

{¶ 17} If similar offenses are properly joined pursuant to Crim. R. 8(A), the accused may move to sever the charges pursuant to Crim. R. 14, wherein the burden is on the defendant to demonstrate his rights would be prejudiced by joinder. State v. Strobel , 51 Ohio App.3d 31, 33, 554 N.E.2d 916 (3rd Dist. Henry 1988).

{¶ 18} A Crim.R. 14 motion for severance of counts due to prejudicial misjoinder is waived unless it is renewed at the close of the state's case or at the conclusion of all the evidence. Strobel, supra, paragraph two of the syllabus; State v. Owens (1975), 51 Ohio App.2d 132, 5 O.O.3d 290, 366 N.E.2d 1367, paragraph two of the syllabus (1975).

{¶ 19} In the instant case, Appellant did not renew his motion for relief from prejudicial joinder. Nonetheless, if it appears a defendant is prejudiced by joinder, a trial court may grant a severance. State v. Brinkley 105 Ohio St.3d 231, 824 N.E.2d 959, 2005-Ohio-1507. The defendant bears the burden of proving the trial court abused its discretion in denying severance. Id.

{¶ 20} To prevail on a claim to sever counts, the defendant has the burden of demonstrating: 1) his rights were actually prejudiced; 2) at the time of the motion to sever, the defendant provided the trial court with sufficient information so it could weigh the considerations favoring joinder against the potential prejudice to the defendant's right to a fair trial; and 3) given the information provided to the court, the court abused its discretion in refusing to sever the charges. State v. Schaim , 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992), citing State v. Hamblin , 37 Ohio St.3d 153, 158-159, 524 N.E.2d 476 (1988) and Drew v. United States , 331 F.2d 85 (D.C.Cir.1964).

{¶ 21} A defendant has not demonstrated prejudice where: (1) if the counts were severed, evidence of alleged misconduct from each count would be admissible in separate trials, and, if not (2) if such evidence would not be admissible, the evidence of each count is simple and distinct. Id.

{¶ 22} In the instant case, the focus at the hearing was on joinder of defendants rather than joinder of offenses. Thus, Appellant did not provide the trial court with sufficient information to weigh the considerations favoring joinder of offenses against the potential prejudice of his right to a fair trial.

{¶ 23} Further, we find the evidence of each count is simple and distinct. The indictments involved two incidents which occurred on two separate dates. The witnesses and victims were different as to the two events which resulted in the charges. The trial court clearly laid out each separate offense as set forth in the indictment in the jury instructions. Tr. 3617-3654. Further, the court instructed the jury each of the offenses constituted a separate and distinct matter, and the jury must consider each charge separately, uninfluenced by their verdict as to the other charges. Tr. 3659.

{¶ 24} While Appellant argues he was prejudiced by joinder because the evidence is insufficient to prove his involvement in the home invasion of June 24, 2015, he has not separately assigned as error the judgment is against the manifest weight and sufficiency of the evidence.

{¶ 25} We find Appellant has not demonstrated prejudice from joinder of offenses. The first assignment of error is overruled.

II.

{¶ 26} Appellant argues the court erred in joining his indictments with those of Christen Ramirez for trial.

{¶ 27} Crim.R. 8(B) governs joinder of defendants and states:

Two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses, or in the same course of criminal conduct. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.

{¶ 28} In order to obtain a severance, a defendant must demonstrate prejudice by the joinder. Crim R. 14 provides, in pertinent part:

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial.

{¶ 29} The decision to grant severance rests in a trial court's sound discretion. State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981). In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶ 30} The law favors the joinder of defendants and the avoidance of multiple trials because joinder conserves judicial and prosecutorial time, lessens the expenses of multiple trials, diminishes the inconvenience to witnesses, and minimizes the possibility of incongruous results from successive trials before different juries. State v. Thomas (1980), 61 Ohio St.2d 223, 400 N.E.2d 401 (1980).

{¶ 31} The United States Supreme Court has stated, "a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States , 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Even where the risk of prejudice is high, "less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Id. "A request for severance should be denied if a jury can properly compartmentalize the evidence as it relates to the appropriate defendants." United States v. Causey , 834 F.2d 1277, 1287 (6th Cir. 1987).

{¶ 32} As discussed in the first assignment of error, the evidence was simple and distinct, and with the exception of the weapons under disability charge against Appellant, the defendants were charged with the same crimes arising out of the same two home invasions. While Appellant argues the evidence was indirect and inferential rather than direct, the case law requires the evidence to be distinct , not direct. Schaim, supra. Further, the trial court instructed the jury:

Separately consider the evidence that applies to each Defendant as though he were being tried separately. State your finding to each Defendant uninfluenced by your verdict as to the other Defendant.
Tr. 3659-60.

{¶ 33} We find no abuse of discretion in the trial court's joinder of Appellant and his co-defendant Ramirez for trial.

{¶ 34} The second assignment of error is overruled.

III.

{¶ 35} In his third assignment of error, Appellant argues the court erred in failing to grant a mistrial after Jason O'Neal testified to statements made by Appellant which implicated Ramirez, in violation of Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

{¶ 36} A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened. State v. Reynolds , 49 Ohio App.3d 27, 33, 550 N.E.2d 490, 497 (1988). The granting of a mistrial is necessary only when a fair trial is no longer possible. State v. Franklin , 62 Ohio St.3d 118, 127, 580 N.E.2d 1, 9 (1991). When reviewed by the appellate court, we should examine the climate and conduct of the entire trial, and reverse the trial court's decision as to whether to grant a mistrial only for a gross abuse of discretion. State v. Draughn (1992), 76 Ohio App.3d 664, 671, 602 N.E.2d 790, 793-794 (1992).

{¶ 37} In Bruton , supra, a postal inspector testified about a confession one codefendant, Evans, had made to the inspector. Evans confessed he and the other codefendant, Bruton, had committed armed robbery. Neither Evans nor Bruton testified at trial. The court admitted the evidence, but instructed the jury they could not use evidence from Evan's confession against Bruton. The United States Supreme Court reversed, and ruled a substantial risk existed that the jury improperly relied on incriminating, extra judicial statements in determining the defendant's guilt. 391 U.S. at 126, 88 S.Ct. 1620. The defendants should have been tried separately, in which case the postal inspector's testimony would not have been placed in front of the jury which determined Bruton's guilt. Id. The basis of the Bruton decision was Bruton's inability to confront and cross-examine Evans about his statements concerning Bruton's involvement. Although the evidence regarding Evan's confession was admissible against Evans as an admission of a party opponent, it was not admissible against Bruton, as Bruton was effectively prevented from confronting witnesses against him. Id. at 127-128, 88 S.Ct. 1620.

{¶ 38} The Ohio Supreme Court found Bruton applicable even when the statement does not clearly implicate the co-defendant:

(T)he Bruton rule applies with equal force to all statements that tend significantly to incriminate a co-defendant, whether or not he is actually named in the statement. The fact that the incrimination amounts to a link in a chain of circumstances rather than a direct accusation cannot dispose of the applicability of the Bruton rule. Just as one can be convicted on circumstantial evidence, one can be circumstantially accused. Fox v. State (Ind.App.1979) [179 Ind.App. 267], 384 N.E.2d 1159, 1170.
State v. Moritz , 63 Ohio St.2d 150, 155, 407 N.E.2d 1268, 1272 (1980).

{¶ 39} Appellant argues the following testimony by Jason O'Neal violates the Bruton rule, "He [Appellant] jumped out the car. I looked at Uvon in shock. Like, he got out. He hugged her. He says, 'Sorry about what happened. We going to find out who did this. And sorry about your dog.' " Tr. 762. The testimony concerned Appellant's own statement, not that of Ramirez, his non-testifying co-defendant. Therefore, the testimony does not implicate Bruton as to Appellant.

{¶ 40} The third assignment of error is overruled.

IV.

{¶ 41} In his fourth assignment of error, Appellant argues the court erred in admitting testimony of Jason O'Neal which violated the Bruton doctrine.

{¶ 42} On cross-examination by counsel for Ramirez, O'Neal testified:

Q. Okay. Now, you told us earlier that, as you put it, when you were beating the brakes off of Christopher [sic] Ramirez at Granite Street, that he, on a couple of occasions said he was sorry.
A. Yeah.
Q. All right. Didn't he also in your presence say that he didn't do it?
A. I didn't hear him say none of that.
Q. I'm sorry?
A. I didn't hear him say none of that.
Q. You didn't hear him say that?
A. No.
Q. Okay. Well, read that answer there on page 6.
A. And he called him out of the car, and he came out. The guy got to questioning, hey, man, how you know Luckie? Yeah, I know Luckie. Ain't that his car? Yeah. I'm doing some work for him. I owe him.
Tr. 842.

{¶ 43} Counsel for Appellant objected, and a discussion ensued concerning whether the testimony was hearsay and/or a Bruton violation. After initially sustaining the objection, the court later overruled the objection. Tr. 847.

{¶ 44} Subsequent to Bruton and Moritz as we discussed in the previous assignment of error (see ¶ 37-38, supra), case law has changed regarding the type of statements which implicate the Confrontation Clause:

However, case law has evolved. For instance, in Yarbrough , the mastermind declarant, who hired the defendant to kill the victim, died prior to trial. After finding the statement against interest hearsay exception applied, the Ohio Supreme Court found no confrontation clause issue with the admission of the declarant's statement to private citizens incriminating himself and the defendant. [State v.] Yarbrough , 95 Ohio St.3d 227 [2002-Ohio-2126], 767 N.E.2d 216 at ¶ 46-54, 56 (and this was prior to Crawford's testimonial standard). In any event, the Bruton principles were premised on the confrontation clause. As subsequent federal and Ohio state decisions have been rendered limiting the confrontation clause's application to testimonial statements, prior principles must be viewed under the lens of the intervening precedent. See [Ohio v.] Clark , --- U.S. ----, 135 S.Ct. [2173] at 2180 [192 L.Ed.2d 306 (2015) ] ("a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial").
In accordance, if the out-of-court statement of a non-testifying codefendant is not testimonial, then Bruton has no application because the confrontation clause has no application. "Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial statements." United States v. Johnson , 581 F.3d 320, 326 (6th Cir. 2009). See also United States v. Vasquez , 766 F.3d 373, 378 (5th Cir. 2014) ; United States v. Dargan , 738 F.3d 643, 651 (4th Cir. 2013) (" Bruton is simply irrelevant in the context of nontestimonial statements * * * Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate Bruton "); United States v. Clark , 717 F.3d 790, 816 (10th Cir. 2013) ("the Bruton rule, like the Confrontation Clause upon which it is premised, does not apply to nontestimonial hearsay statements"); United States v. Berrios , 676 F.3d 118, 128 (3d Cir. 2012) (because " Bruton is no more than a by-product of the Confrontation Clause," it is inapplicable to a non-testimonial prison yard conversation).
State v. Carter , 2017-Ohio-7501, 96 N.E.3d 1046, ¶¶ 38-39.

{¶ 45} The Ohio Supreme Court has defined a testimonial statement in accordance with the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004):

Given our review of the foregoing authority, we adopt the "objective witness" test in Ohio. For Confrontation Clause purposes, a testimonial statement includes one made "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford , 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177. In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations. This test conforms to Crawford and is supported by both state and federal authority. This definition also prevents trampling on other portions of hearsay law that Crawford expressly states do not implicate the right to confront witnesses.
State v. Stahl , 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 36.

{¶ 46} The statement Ramirez made to O'Neal was not given under circumstances which an objective witness would believe the statement would be available for use at a later trial. The statement was made while O'Neal was beating up Ramirez. Further, the statement does not implicate Appellant in a crime; Ramirez merely acknowledged he knew Appellant and had Appellant's vehicle. Other witnesses, including Appellant, testified Ramirez and Appellant hung out together, and Ramirez sometimes drove Appellant's car. The trial court did not violate the Bruton doctrine in admitting the statement of Ramirez to O'Neal.

{¶ 47} The fourth assignment of error is overruled.

V.

{¶ 48} In his fifth assignment of error, Appellant argues the testimony of Ashley Matthews concerning statements she overheard Ramirez make on the telephone violated Bruton, supra . Matthews testified she heard Ramirez telephone his grandfather and tell him to go to Ramirez's house, get the bullets and shoes, and throw them out. She testified Ramirez then called Appellant and said they "jaked him." Tr. 2240. She heard Ramirez tell Appellant he got beat up over shooting the dog. Tr. 2241. She could hear Appellant respond, "Really, man? That's what it was over?" Tr. 2241.

{¶ 49} As discussed in the fourth assignment of error, Bruton is not implicated unless the statement is testimonial in nature. Carter, supra. The statements Ramirez made to his grandfather did not in any way implicate Appellant in a crime. The statement made to Appellant concerning getting beaten up over shooting the dog was not testimonial, as the circumstances would not lead an objective witness reasonably to believe the statement would be used later at trial.

{¶ 50} The fifth assignment of error is overruled.

{¶ 51} The judgment of the Richland County Common Pleas Court is affirmed.

Wise, John, P.J. and Gwin, J. concur


author: BROWN, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Charles OLIVER, Defendant-Appellant.
    No. 17AP-195
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on February 15, 2018
    On brief: Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
    On brief: Barnhart Law Office, LLC, and Robert B. Barnhart, for appellant.
    DECISION
   BROWN, P.J.

{¶ 1} Charles Oliver, defendant-appellant, appeals the judgment of the Franklin County Court of Common Pleas, in which the court found him guilty of kidnapping with a firearm specification, a violation of R.C. 2905.01 and a first-degree felony, and felonious assault with a firearm specification, a violation of R.C. 2903.11 and a second-degree felony.

{¶ 2} The facts underlying the crimes in this case are not relevant to the issues on appeal. Generally, on July 28, 2016, appellant was indicted on one count of kidnapping and one count of felonious assault, each carrying a three-year firearm specification. The victim was his ex-girlfriend ("the victim").

{¶ 3} On August 1, 2016, appellant retained his first attorney. On January 18, 2017, that attorney moved to withdraw as counsel based on an accusation by the victim that he had given her money not to testify against appellant. The court granted the motion and appointed Robert Krapenc to represent appellant.

{¶ 4} On February 13, 2017, the case was scheduled for a jury trial. Appellant requested a continuance, asserting he wanted to hire his own attorney. A conversation regarding appellant's request ensued between appellant and the trial judge, which we will detail in our discussion of appellant's assignment of error. In the end, the trial court denied appellant's request, believing appellant was delaying his trial hoping that the victim, who was in jail at that time, would be released by the next trial date and become "lost" and unavailable to testify. Subsequently, a jury convicted appellant of the charged offenses, and the trial court sentenced appellant to a total of 12 years in prison. Appellant appeals the judgment of the trial court, asserting the following assignment of error:

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR A CONTINUANCE TO SECURE HIS OWN COUNSEL.

{¶ 5} Appellant argues in his sole assignment of error the trial court erred when it denied his request for a continuance in order to obtain trial counsel of his own choosing. In general, "[t]he right to counsel of one's choice is an essential element of the Sixth Amendment right to have the assistance of counsel for one's defense." State v. Frazier , 8th Dist. No. 97178, 2012-Ohio-1198, 2012 WL 986477, ¶ 26, citing State v. Keenan , 8th Dist. No. 89554, 2008-Ohio-807, 2008 WL 522711. This includes the right, when a defendant has the ability to retain his own attorney, to be represented by counsel of choice. United States v. Gonzalez-Lopez , 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). However, the right to retained counsel of choice "is not absolute, * * * and courts have 'wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar.' " Frazier at ¶ 26, quoting Gonzalez-Lopez at 152, 126 S.Ct. 2557. In this respect, a trial court's "difficult responsibility of assembling witnesses, lawyers and jurors for trial 'counsels against continuances except for compelling reasons.' " State v. Howard , 5th Dist. No. 2012CA00061, 2013-Ohio-2884, 2013 WL 4781932, ¶ 40, quoting Morris v. Slappy , 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). Accordingly, "decisions relating to the substitution of counsel are within the sound discretion of the trial court." Frazier at ¶ 26, citing Wheat v. United States , 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

{¶ 6} "The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion." State v. Unger , 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). In assessing whether the trial court abused its discretion in denying appellant's request for a continuance, we consider: (1) the length of the delay requested, (2) whether other continuances have been requested and received, (3) the inconvenience to litigants, witnesses, opposing counsel, and the court, (4) whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived, (5) whether appellant contributed to the circumstance which gives rise to the request for a continuance, and (6) other relevant factors, depending on the unique facts of each case. Id. at 67-68, 423 N.E.2d 1078.

{¶ 7} The United States Supreme Court has stated "[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite , 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).

{¶ 8} In the present case, appellant made his request for a continuance to obtain counsel on the day of trial. "[W]hen the timing of a request for new counsel is an issue, a trial court may make a determination as to whether the appellant's request for new counsel was made in bad faith." Frazier at ¶ 27, citing State v. Graves , 9th Dist. No. 98CA007029, 1999 WL 1215161 (Dec. 15, 1999). It has been held that "[a] motion for new counsel made on the day of trial 'intimates such motion is made in bad faith for the purposes of delay.' " Id. , quoting State v. Haberek , 47 Ohio App.3d 35, 41, 546 N.E.2d 1361 (8th Dist.1988).

{¶ 9} Here, appellant presents several arguments to support his contention the trial court abused its discretion when it refused to grant his request for a continuance to hire his own counsel in place of appointed counsel. Appellant first contends his newly appointed counsel, Krapenc, had been appointed less than one month before the trial, and the case concerned two serious felony counts. Appellant points out the first day of trial was the first hearing during which he and Krapenc were before the court together. Furthermore, appellant contends the trial court did not conduct an adequate inquiry into appellant's concerns about Krapenc. Finally, appellant argues the public concerns for prompt administration of justice are not impacted in the present case because Krapenc had less than one month to prepare for the case, and a brief continuance would not have meaningfully impacted the timeline of the case or resulted in any significant wasted time and effort by his current counsel.

{¶ 10} On the date of trial, appellant told the trial judge that some money had become available and he wished to hire his own counsel. He indicated he thought he would fare better with his own lawyer. He admitted, however, that he had not communicated with any new attorneys. The trial judge reminded appellant that, the last time he was before the court, appellant expressed a desire for a fast and speedy trial. The judge confirmed with the prosecutor for the State of Ohio, plaintiff-appellee, that there was still a plea offer of three years imprisonment and explained to appellant that his request for continuance would be denied, and the plea offer would be maintained until the commencement of trial in a few hours. Appellant reiterated he believed he should have the right to hire his own attorney, he had only spoken to his current counsel for 30 minutes, and he did not believe he was being represented fairly. The trial judge reminded appellant that, three weeks earlier, when his prior counsel withdrew, appellant did not want to delay trial. The trial judge pointed out that three weeks ago the victim was not in custody but was now in jail. The judge stated it appeared the reason appellant was now asking for a continuance was not because he wanted a new attorney but, instead, he hoped the victim's jail sentence would run out and she would get "lost" again. The court found that appellant's request for a continuance was a dilatory tactic to obstruct the process of trial. The court told appellant that Krapenc was one of the best attorneys in Columbus, and he could either continue with Krapenc, represent himself, or take the plea offer. The trial judge then adjourned court for several hours.

{¶ 11} When the case was called again, appellant again asserted his trial counsel was not prepared for trial arguing that he had requested a bill of particulars, a criminal history of the victim, and other documents that his attorney failed to provide. Appellant's counsel, Krapenc, responded that he had reviewed the victim's criminal history with appellant but did not believe it was proper to give him a copy of such. Krapenc also stated he had received discovery and the prosecutor's evidence and reviewed it with appellant. Krapenc said he was prepared for trial and did not believe the case was complicated. The court noted appellant had filed an affidavit of indigency, had not indicated any ability to pay his own counsel, and had not talked to any potential attorneys.

{¶ 12} After reviewing the transcript from the trial court, we cannot find the trial court abused its discretion when it denied appellant's request for a continuance so he could hire his own counsel. The factors relevant to both a request for continuance and request to hire private counsel weigh heavily against appellant. With regard to timing, appellant requested his continuance and new counsel on the day of trial; about two hours before a jury pool was to be called. The trial court also believed appellant desired the continuance as a delay tactic, hoping the victim would be released from jail in the interim and become unavailable to testify against him. The court noted when appellant's former counsel moved to withdraw three weeks prior, appellant expressed his strong desire to have the case heard quickly, and, at that time, the victim was not in custody. To buttress its belief that appellant was merely using the request for continuance and new counsel as a delay tactic, the court noted it was suspect that appellant claimed to be indigent but was now claiming money had become available to pay for private counsel. Appellant's former private counsel had previously told the court that appointment of counsel would be necessary because appellant's mother could no longer pay him. Additionally, the trial court pointed out appellant had not contacted any attorneys regarding representation and did not have any names of potential counsel.

Also, despite appellant's claims that his new counsel, Krapenc, was not prepared for trial, Krapenc informed the court he was prepared for trial, the case was not very difficult, he had already reviewed discovery with appellant, and he had already discussed with the prosecutor the evidence to be produced at trial.

{¶ 13} Furthermore, appellant's contention the trial court did not adequately inquire about his reasons for desiring new counsel is unfounded. Appellant clearly and extensively explained his reasons to the court for wanting private counsel. Appellant told the trial judge he thought he would fare better with his own lawyer, he had only spoken to his current counsel for 30 minutes, he did not believe he was being represented fairly, and his trial counsel was not prepared for trial. The record is clear the trial court knew appellant's reasons for wanting to hire private counsel, and it is equally clear the trial court did not believe appellant's reasons were valid.

{¶ 14} Therefore, on review, we find the trial court did not abuse its discretion when it refused to delay appellant's trial to allow him time to hire private counsel. For these reasons, appellant's assignment of error is without merit and is overruled.

{¶ 15} Accordingly, we overrule appellant's single assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

KLATT and HORTON, JJ., concur.