[Cite as State v. Andrews, 2023-Ohio-4237.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-22-056
Appellee Trial Court No. 21 CR 243
v.
Amanda A. Andrews DECISION AND JUDGMENT
Appellant Decided: November 22, 2023
*****
Dave Yost, Ohio Attorney General, and Drew Wood, for appellee
Brian A. Smith, for appellant.
***** MAYLE, J. {¶ 1} Following a jury trial, the defendant-appellant, Amanda Andrews, was
convicted of violating a protection order, menacing by stalking, and two counts of failure
to pay child support. The Ottawa County Court of Common Pleas imposed an aggregate
seven-month prison sentence for these convictions, suspended the prison sentence, and
granted Andrews community control. For the following reasons, we affirm. I. Background
{¶ 2} Andrews was charged by way of an indictment on November 4, 2021.
Originally, Andrews was charged with seven offenses, but three counts were dismissed
before trial, leaving the following to be tried: violation of a protective order, in violation
of R.C. 2919.27(A)(1) and (B)(4), a felony of the third degree (Count 2); menacing by
stalking, in violation of R.C. 2903.211(A)(1) and (B)(2)(e), a felony of the fourth degree
(Count 3); and two counts of nonsupport of dependents, in violation of R.C.
2919.21(A)(2) and (G)(1), felonies of the fifth degree (Counts 6 and 7).
{¶ 3} The Ottawa County Court of Common Pleas commenced a jury trial on
August 30, 2022. During the trial, evidence was introduced regarding other civil and
criminal cases filed against Andrews, including a judgment entry of divorce granted in
Ottawa County; a domestic violence civil protection order (DVCPO) obtained by
Andrews’s former girlfriend, M.K., in the Lucas County Court of Common Pleas,
Domestic Relations Division; two misdemeanor cases charging Andrews with telephone
harassment in the Ottawa County Municipal Court; and a felony case in Lucas County,
charging Andrews with similar offenses as those alleged in this case. The judgment
entries and other proceedings from those cases were authenticated and made part of the
record herein.
{¶ 4} This case involves allegations that Andrews violated the DVCPO (that was
granted in Lucas County), committed the offense of menacing by stalking, and failed to
pay child support. All the offenses are alleged to have occurred in Ottawa County.
2. {¶ 5} Andrews and her former wife, “B.A.,” have two children together, both
minors. Under the terms of the November 26, 2019 divorce decree, Andrews was
ordered to pay monthly child support in the amount of $2,177.72. During the trial, a case
manager with Ottawa County Job and Family Services testified that over a 104-week
period, specifically between November 2, 2019 and November 2, 2021, Andrews failed
to pay child support for a total of 66 weeks.
{¶ 6} Andrews was romantically involved with a different woman, “M.K.,” from
April of 2019 through October of 2020. Beginning in early 2021, Andrews began
threatening and harassing M.K. with unwanted text messages and phone calls. M.K.,
who lives in Toledo, sought a protection order in Lucas County. Following an ex parte
hearing on June 4, 2021, the trial court issued a DVCPO, ex parte, pursuant to R.C.
3113.31. The order protected M.K. and M.K.’s two young children. Among other
conditions, the order mandated that Andrews “stay away from” and “not initiate or have
any contact” with the protected persons. Andrews was served with the ex parte order that
same day, June 4, 2021.
{¶ 7} Andrews continued to harass, intimidate, and threaten M.K. over the
summer. On June 26, 2021, Andrews contacted M.K. and called her a “whore,” among
other vulgar terms, and threated to burn down the camper and gazebo where M.K. and
her children were camping. Andrews told M.K. that, “your trashy, trashy gazebo will go
up in flames nice when I burn your camper down, white trash bitch.”
{¶ 8} On July 15, 2021, Andrews called M.K., leaving “voicemails” and sent text
messages, asking if M.K. had “a bad day” and calling her a “cunt” and a “hole.” M.K.
3. testified that she had, indeed, had a bad day “because of harassing messages that
[Andrews] had sent to [M.K.’s] kids’ dad and his girlfriend.”
{¶ 9} The June and July incidents resulted in two separate cases in the Ottawa
County Municipal Court. On April 1, 2022, Andrews pled guilty and was convicted, in
both cases, of telecommunication harassment, in violation of R.C. 2917.21(A)(1), a
misdemeanor of the first degree. The municipal court ordered Andrews to serve 49 days
in jail, to have no direct or indirect contact with M.K., and to undergo a mental health
evaluation.
{¶ 10} M.K. testified that Andrews continued her harassment on August 17, 2021.
On that date, M.K. went to the casino near her home in Toledo. M.K. went alone and
was not expecting to see anyone she knew, especially Andrews who lived an hour away.
When Andrews appeared at the casino, asking to talk, M.K. agreed. But, when the
“harassing” and “nasty talk” began, M.K. left the casino without Andrews. Later, M.K.
was awakened at 4:40 a.m. by Toledo police. The police told M.K. that they had
Andrews in custody and that she had been on M.K.’s property. M.K. learned that
Andrews had called 911 and falsely reported that M.K. was suicidal, which prompted the
police to visit M.K.’s property, where they encountered Andrews and ultimately arrested
her. When M.K. reviewed footage from her exterior security cameras, she could see
“[Andrews] walking around [her] house, walking on [her] picnic table, waving to the
camera and then taking it down, and [asking], where you at, cunt.” The next day, M.K.
located the missing cameras, in the front seat of Andrews’s car, which was parked near
M.K.’s home. M.K. summed up the incident as “just another act of her terrorizing me
4. and trying to scare me.” As a result of the incident, Andrews was charged in Lucas
County with menacing by stalking, violating the protection order, and theft. The trial
court record does not indicate how the Lucas County case resolved.
{¶ 11} On August 30, 2021, the Lucas County court held a full hearing on the
petition for a DVCPO. M.K. and her attorney attended the hearing and offered multiple
exhibits into evidence. Andrews did not attend and was not represented. Following the
hearing, the trial court issued an Order of Protection, which found that Andrews had
engaged in an “ongoing campaign to malign and harass” M.K. by sending “hundreds of *
* * threatening, harassing and menacing” texts, calls, and emails. For example, Andrews
texted M.K. that she was going to kill M.K. “in front of her children,” “slit [M.K.’s]
children’s throats,” and burn down M.K.’s house. The court also found that Andrews
made 17 “completely false” and “malicious” 911 calls, telling authorities that M.K. was
“suicidal and had hung herself,” that M.K. was “being raped,” or that M.K. was “raping
someone else.” On one occasion, Andrews went to M.K.’s home and attempted to “set
[M.K.] on fire with a lighter” when M.K. opened the door. The trial court also found
that, after the June 4, 2021 ex parte order was issued, Andrews had “damaged the security
cameras installed at [M.K.’s] home.” The court concluded that, by her actions, Andrews
had attempted to cause M.K. bodily harm, placed M.K. in fear of imminent serious
physical harm, and engaged in a pattern of conduct that knowingly caused M.K. mental
distress. The court granted a full protection order, to be effective until June 4, 2026, five
years from the ex parte order. The court specifically ordered Andrews not to abuse,
harm, attempt to harm, threaten, follow, stalk, harass, force sexual relations upon, or
5. commit sexually oriented offenses against M.K. or her children. Andrews was served
with the protection order on September 13, 2021. She did not appeal.
{¶ 12} In the early morning hours of September 22, 2021, M.K. began receiving
text messages and phone calls from unknown numbers that lasted for hours. Some of the
texts accused M.K. of “accessing my accounts” while others, from a different number,
were vile and racist. Based on some of the personal content and “rambling” nature of the
messages, M.K. knew that the sender was Andrews. At 6:00 a.m., M.K. answered her
phone and heard Andrews’s voice on the other end, asking why she, M.K., was calling
Andrews. M.K. testified, “but I wasn’t calling her. I was sleeping. It was 6:00 in the
morning.” At 6:26 a.m., M.K. received some “group” text messages that included a third
party named “Maggie” whom M.K. identified as Andrews’s friend. The sender of the
text messages “accus[ed]” M.K. of hacking into that person’s iCloud account and
deleting material and asked “Maggie” to “keep a copy of this text.” M.K. testified that
she lacked “the technical ability” or interest in “hacking” into other people’s internet
accounts. M.K. provided “screen shots” of the messages and phone calls to the police.
{¶ 13} A few weeks later, on October 14, 2021, M.K. was in a Southfield,
Michigan hotel room for a business trip, when she received several “no caller ID calls”
and FaceTime video calls from Andrews. M.K. answered some of the calls and “asked
[Andrews] to stop calling [because] there’s a protection order.” Andrews told M.K. that
she did not initiate the calls, and she told M.K. to “stop calling me” and asked M.K. “why
are you calling me?” Because of this, M.K.—who had two phones with her—used her
personal phone to answer the incoming video calls, and used her work phone to video the
6. incoming calls. The videos were introduced at trial and clearly show two incoming video
calls to M.K.’s personal phone, around 12:45 a.m., from Andrews’ “iCloud” account.
When M.K. answered the video call, she recognized Andrews speaking from her home in
Catawba in Ottawa County.
{¶ 14} In the video recordings, which were played for the jury, Andrews denies
initiating the calls, denies the existence of any protection order, accuses M.K. of texting
her children’s soccer coach, and asks what the coach’s wife “is going to think about
[M.K.] texting him at three o’clock in the morning.” M.K. testified that she was
“concerned that [Andrews] was going to call and disrupt the family [alleging] some kind
of misconduct which actually did not happen. A family who I see regularly for, you
know, four-year-old-soccer. And that’s not the first time she had done that to a family.”
In all, the state produced evidence that Andrews initiated 19 calls to M.K. that night.
{¶ 15} Under cross-examination, M.K. admitted that she voluntarily saw Andrews
“probably” three times while the CPO was in effect, including two trips to Cleveland in
the summer of 2022, where she and Andrews “had sex.”
{¶ 16} When the state rested its case, Andrews moved for an acquittal, which the
court denied. However, the trial court did order Count 2 to be reclassified from a felony
to a first-degree misdemeanor because the state failed to present any evidence that
Andrews violated the protection order “while committing a felony offense.”
{¶ 17} Andrews testified in her own defense. Andrews claimed that she went to
the casino in August 2021 because she believed that the ex parte order, which barred her
from having any contact with M.K., was no longer in effect. In support of her belief,
7. Andrews testified that she and M.K. each “called Lucas County Dispatch” and that “an
officer called [M.K.] back and left a message on her voicemail which she forwarded to
me.” Andrews also testified that she was unable to pay child support because she had
been in jail and because her law license had been suspended, which prevented her from
earning the money required to pay the support obligation.
{¶ 18} Andrews was found guilty and convicted as to all four counts. Although
the trial court’s judgment entry correctly indicates that Andrews was “found guilty by
jury trial of Count #2, Violation of Protection Order, a misdemeanor of the first degree
(M1),” it incorrectly refers to the felony provision of the statute, i.e. R.C.
2919.27(A)(1)(B)(4), as she was originally charged. The judgment entry should refer to
R.C. 2919.27(A)(1) and (B)(2) because the trial court previously ordered the offense to
be reclassified as a first-degree misdemeanor, given its finding of insufficient evidence
that Andrews violated the protection order “while committing a felony offense.” For this
reason, our decision on this appeal will include a remand to the trial court to issue a
corrected entry.
{¶ 19} For its sentence, the trial court ordered Andrews to serve six months in jail
as to Count 2 (i.e. violation of a protection order); seven months in prison as to Count 3
(menacing by stalking); and six months in prison as to Count 6 and as to Count 7 (failure
to pay child support), all terms to be served concurrently. The court suspended the terms
of incarceration and placed Andrews on community control for a period of two years,
subject to her complying with the community control conditions, attending three
8. Alcoholics Anonymous meetings per week, having no contact with the victim, obtaining
employment, and paying restitution and the costs of the proceedings.
{¶ 20} Andrews appealed and assigns four errors for our review:
ASSIGNMENT OF ERROR I: Appellant’s convictions were against
the manifest weight of the evidence.
ASSIGNMENT OF ERROR II: The trial court erred in failing to
order severance of Counts Two and Three of the Indictment from Counts
Six and Seven of the Indictment, in violation of Rules 8 and 14 of the Ohio
Rules of Criminal Procedure and Appellant’s right to Due Process under the
Fifth and Fourteenth Amendments to the United States Constitution and
Article I, Section 16 of the Ohio Constitution.
ASSIGNMENT OF ERROR III: The failure of Appellant’s trial
counsel to renew Appellant’s Motion for Relief from Improper Joinder
either at the close of the State’s evidence, or at the close of the evidence,
constituted ineffective assistance of counsel, in violation of Appellant’s right
to counsel under the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
ASSIGNMENT OF ERROR IV: The cumulative errors of
Appellant’s trial counsel constituted ineffective assistance of counsel, in
violation of Appellant’s right to counsel under the Sixth and Amendments to
the United States Constitution and Article I, Section 10 of the Ohio
Constitution.
9. II. Analysis
A. The convictions are not against the manifest weight of the evidence.
{¶ 21} In her first assignment of error, Andrews claims that her convictions are
against the manifest weight of the evidence.
{¶ 22} When reviewing a claim that a verdict is against the manifest weight of the
evidence, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether the jury clearly lost its way
in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Unlike a sufficiency analysis, we do not
view the evidence in a light most favorable to the state. “Instead, we sit as a ‘thirteenth
juror’ and scrutinize ‘the factfinder’s resolution of the conflicting testimony.’” State v.
Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at
388. Reversal on manifest weight grounds is reserved for “the exceptional case in which
the evidence weighs heavily against the conviction.” Thompkins at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
1. Violating a Protection Order
{¶ 23} We begin with Andrews’s conviction for violating the protection order.
R.C. 2919.27(A)(1) provides that “[n]o person shall recklessly violate the terms of * * *
[a] protection order issued * * * pursuant to section * * * 3113.31 of the Revised Code.”
On appeal, Andrews claims that the jury lost its way in finding that she “recklessly”
violated the protection order on October 14, 2021 because “she did not know the
10. protection order was in place.” In support, Andrews cites her own trial testimony,
wherein she claimed that “a deputy from Lucas County had left a message on M.K.’s
voicemail” indicating that “there’s no protection order.” Andrews further claimed that
M.K. “forwarded” the voicemail to Andrews’s phone.
{¶ 24} As an initial matter, we note that the alleged voicemail was not marked or
admitted as an exhibit, does not appear to have been played for the jury, and is not part of
the appellate record. Regardless, Andrews allegedly received this voicemail on August
17, 2021—which was almost a month before she was served with the full protection
order on September 13, 2021. Given that Andrews received service of the DVCPO on
September 13, 2021, the jury did not lose its way when it concluded that she recklessly
violated this order by repeatedly contacting M.K. on October 14, 2021.
{¶ 25} Andrews also argues that it was “reasonable” for her to believe that the full
DVCPO had been dismissed—“even after being served with [it]” on September 13,
2021—because M.K. “had extensive contact with Andrews until at least October 14,
2021.” We disagree. As Andrews acknowledged at trial, the DVCPO clearly advised, “IF
YOU VIOLATE ANY TERM OF THIS ORDER EVEN WITH THE PROTECTED
PERSON’S PERMISSION, YOU MAY BE HELD IN CONTEMPT OR ARRESTED.
ONLY THE COURT CAN CHANGE THIS ORDER. YOU ACT AT YOUR OWN
RISK IF YOU DISREGARD THIS WARNING.”
{¶ 26} For these reasons, we find that the jury did not lose its way in concluding
that Andrews behaved recklessly when she violated the DVCPO on October 14, 2021.
11. 2. Menacing by Stalking
{¶ 27} Andrews also complains that her conviction for menacing by stalking was
against the manifest weight of the evidence. Under R.C. 2903.211, the state was required
to show that Andrews, by engaging in a pattern of conduct, knowingly caused M.K. to
believe that Andrews would cause her “physical harm” or “mental distress.” On appeal,
Andrews argues that the jury lost its way by believing M.K.’s testimony that she was
“terrified” of Andrews because M.K. “repeated[ly] initiat[ed]” contact with Andrews
during the term of the DVCPO, including for the purpose of engaging in sexual relations.
Andrews also claims that M.K. should have “simply ignored” any unwanted phone calls
or texts.
{¶ 28} M.K. testified that she willingly met with Andrews on “probably” three
occasions, two of which occurred in Cleveland during the summer of 2022. According to
the indictment, however, Andrews committed the menacing offense between September
13 and October 14, 2021. Thus, we agree with the state that the two 2022 encounters are
wholly irrelevant because they occurred after Andrews had committed the menacing
offense.
{¶ 29} Regardless, even though M.K. “probably” had one or more consensual
encounters with Andrews during the indictment period, the jury heard M.K. express her
“embarrass[ment]” and regret for “ever [having] gone anywhere near” Andrews “because
it backfire[d] on [her] every time.” Although we consider the credibility of witnesses
under a manifest-weight-of-the-evidence standard, “we extend special deference to the
finder of facts credibility determinations given that it is the finder of fact that has the
12. benefit of seeing the witnesses testify, observing their facial expressions and body
language, hearing their voice inflections, and discerning qualities such as hesitancy,
equivocation, and candor.” State v. Howard, 6th Dist. Fulton No. F-17-003, 2017-Ohio-
8119, ¶ 29, citing State v. Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. In
light of the graphic evidence of Andrews’s prolonged attempts to frighten and harass
M.K., we cannot find that the jury’s decision to believe that M.K. was “scared” of
Andrews was against the manifest weight of the evidence.
{¶ 30} Finally, Andrews urges the court to reject M.K.’s testimony as
untrustworthy because M.K. supposedly admitted to making a “false police report.”
Under cross-examination, M.K. was asked if she recalled “a time” when she called the
Oak Harbor Police Department and reported that Andrews was driving under the
influence of alcohol. M.K. admitted that, when she called the police, she was not
“following” Andrews, as she told the dispatcher. Instead, she was monitoring Andrews’s
location on her phone, while standing in her kitchen with Toledo Police officers present.
M.K., however, stood by the substance of the report—i.e. that Andrews was “drunk and
driving” and that she only avoided getting arrested because a friend came and got her.
{¶ 31} Here, the jury had the advantage of observing M.K. and Andrews testify,
and it was free to accept or reject their testimony, in whole or in part. “Just because the
jury resolved issues of fact in the state’s favor does not mean that the jury lost its way.”
State v. Ahreshien, 6th Dist. Lucas No. L-19-1184, 2021-Ohio-1223, ¶ 42.
{¶ 32} We find that Andrews’s conviction for menacing by stalking was not
13. 3. Failure to pay child support
{¶ 33} Finally, Andrews claims that her two convictions for failure to pay child
support are against the manifest weight of the evidence. Under R.C. 2919.21(G)(1), a
violation of the statute is a fifth-degree felony if “the offender has failed to provide
support * * * for a total accumulated period of [26] weeks out of [104] consecutive
weeks, whether or not the [26] weeks were consecutive.” The state alleges that, between
November 2, 2019 and November 2, 2021, Andrews failed to pay support for a total of 66
weeks, i.e. 27 weeks in 2020 and 39 weeks in 2021. On appeal, Andrews does not
contest the state’s case but argues that the jury lost its way in rejecting her affirmative
defense to the charges, namely that while she was “unable to provide adequate” support,
she did provide the support “that was within [her] ability and means.” R.C. 2919.21(D).
{¶ 34} On appeal, Andrews insists that she “demonstrated [her] inability to pay”
with evidence that she was incarcerated, which had a “horrific” impact on her legal
practice. But, Andrew’s longest stretch of time in jail—a period of 118 days—began on
November 12, 2021, which was after the period of time identified in the indictment.
Likewise, Andrews’s law license was suspended on November 8, 2021—i.e., after the
relevant period of non-support. And, although Andrews argues that she made a
“substantial payment” to B.A. following the sale of the marital home, this payment
occurred in January of 2023—i.e., after her trial and convictions in this case.
{¶ 35} Finally, we note that an obligor’s “ability to pay” does not depend solely on
whether the payor is generating an income. See, e.g., State v. Roders, 9th Dist. Summit
No. 20962, 2002-Ohio-3867, ¶ 27 (Jury’s rejection of affirmative defense was not against
14. the manifest weight of the evidence where the physician-father, who was suspended from
practicing medicine and deemed “not capable of working,” maintained “stacks of” of
hundred-dollar bills). Here, as the state points out, Andrews presented no evidence of
“her cash reserves,” or lack thereof.
{¶ 36} For the reasons set forth above, we find that Andrews’s convictions were
not against the manifest weight of the evidence. Therefore, Andrews’s first assignment
of error is found not well-taken.
B. The trial court did not err in denying Andrew’s Crim.R. 14(A) motion to sever.
{¶ 37} In her second assignment of error, Andrews claims that the trial court erred
when it denied her pretrial motion to sever Counts 2 and 3 (the protective order and
menacing counts) from Counts 6 and 7 (failure to support counts).
{¶ 38} Under Crim.R. 8, multiple offenses may be joined in a single indictment if
the offenses “are of the same or similar character, or are based on the same act or
transaction, or are based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan, or are part of a course of criminal
conduct.” Crim.R. 8(A). It is well-settled that joinder is favored and is to be “liberally
permitted.” (Citation omitted.) State v. Stuckman, 6th Dist. Sandusky Nos. S-17-039 and
S-17-040, 2018-Ohio-4050, ¶ 36, quoting State v. Schaim, 65 Ohio St.3d 51, 58, 600
N.E.2d 661 (1992). As we noted in Stuckman,
The law favors joinder for public policy reasons, such as: to
conserve judicial economy and prosecutorial time; to conserve public funds
15. by avoiding duplication inherent in multiple trials; to diminish the
inconvenience to public authorities and witnesses; to promptly bring to trial
those accused of a crime; and to minimize the possibility of incongruous
results that can occur in successive trials before different juries.
Id. at ¶ 36, quoting State v. Dunkins, 10 Ohio App.3d 72, 460 N.E.2d 688 (9th
Dist.1983), paragraph one of syllabus.
{¶ 39} Although joinder is favored by Ohio law, a defendant may move to sever
the charges under Crim.R. 14 upon a showing of prejudice. State v. Lott, 51 Ohio St.3d
160, 163, 555 N.E.2d 293 (1990). Crim.R. 14 provides that “[i]f it appears that a
defendant * * * is prejudiced by a joinder of offenses * * * in an indictment * * * the
court shall order an election or separate trial of counts.” It is the defendant’s burden to
demonstrate that joinder is prejudicial:
A defendant claiming error in the trial court’s refusal to allow
separate trials of multiple charges under Crim.R. 14 has the burden of
affirmatively showing that [her] rights were prejudiced; [she] must furnish
the trial court with sufficient information so that it can weigh the
considerations favoring joinder against the defendant’s right to a fair trial,
and [she] must demonstrate that the court abused its discretion in refusing
to separate the charges for trial.
State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-2595, 98 N.E.3d 251, ¶ 21, quoting
State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981), syllabus.
16. {¶ 40} The state can use two methods to defeat a defendant’s claim of prejudice
under Crim.R. 14: the “other acts” test or the more lenient “joinder” test. Stuckman at ¶
39, citing Lott at 163. Under the other acts test, the state must show that evidence of the
other charged offenses would be admissible as “other acts” under Evid.R. 404(B) even if
the counts are severed for trial. Stuckman citing State v. Gibson, 6th Dist. Lucas Nos. L-
13-1222 and L-13-1223, 2015-Ohio-1679, ¶ 28. Under the joinder test, the state can
defeat a claim of prejudice by showing that the jury is capable of separating the proof of
each crime because the evidence of each crime is simple and direct. Id. Evidence is
“simple and direct” if the jury is capable of segregating the proof required for each
offense. State v. Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379, 937 N.E.2d 136, ¶ 40
(10th Dist.). “Ohio appellate courts routinely find no prejudicial joinder where the
evidence is presented in an orderly fashion as to the separate offenses or victims without
significant overlap or conflation of proof.” State v. Lewis, 6th Dist. Lucas No. L-09-
1224, 2010-Ohio-4202, ¶ 33.
{¶ 41} “If a motion to sever is made at the outset of a trial, it must be renewed at
the close of the state’s case or at the conclusion of all of the evidence so that a Crim.R. 14
analysis may be conducted in light of all the evidence presented at trial.” Id. at ¶ 37,
quoting State v. Rojas, 6th Dist. Lucas No. L-11-1276, 2013-Ohio-1835, ¶ 34. If a
motion to sever is not renewed, then the issue waives all but plain error. State v. Scott,
6th Dist. Sandusky No. S-02-026, 2003-Ohio-2797; accord Gordon at ¶ 22 (“Since
Gordon neither sought severance pursuant to Crim.R. 14 nor objected to the joinder, we
do not review the trial court’s decision for an abuse of discretion; instead, as the appellate
17. court correctly determined, on appeal we apply a plain-error standard of review to the
trial court’s decision regarding joinder.”). “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, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. To successfully assert that a trial court committed plain
error, a defendant must show an error that constitutes an obvious defect in the trial
proceedings and demonstrate that the error affected the outcome of the trial. (Citation
omitted.) Gordon at ¶ 23.
{¶ 42} Here, Andrews moved the trial court to sever the failure to support counts
at the outset of trial but failed to renew the motion, either at the close of the state’s case
or once all the evidence had been presented. Accordingly, we review for plain error.
{¶ 43} Andrews argues that she was prejudiced by the joinder of Counts 2 and 3
with Counts 6 and 7. She claims that, by combining different kinds of offenses—i.e.
claims involving allegations of harassing conduct with claims involving allegations of
financial misconduct—she was unfairly portrayed to the jury as “a habitual offender.”
She also complains that the state tried multiple counts together to “make Andrews less
sympathetic.” In other words, Andrews argues that she was prejudiced by the mere fact
that the state tried multiple counts together in the same trial. This is not a viable
argument. Merely trying a defendant for multiple offenses, without more, does not
violate the joinder rule or create prejudice. See Crim.R. 8 (providing that two “or more”
offenses may be charged in the same indictment under a variety of circumstances); see
18. also Struckman at ¶ 40 (rejecting defendant’s argument that the state, in joining multiple
offenses, was “attempting to paint the defendant as a bad person”).
{¶ 44} Andrews also claims that she was prejudiced by joinder because, according
to her, “it is very likely that the nonsupport charges would not have gone to trial,” but for
the fact that they were joined with the other counts. Andrews bases her theory on the fact
that B.A., the obligee in the child support counts, was paid a lump sum, following the
sale of the marital home. However, the proceeds from the sale were not applied to
Andrews’s child support arrearage until January of 2023, five months after the case was
tried, and, even then, an arrearage of $55,000 remained.1 Therefore, we find no support
for Andrews’s argument that the nonsupport counts would likely not have gone to trial if
they had been severed from the other counts.
{¶ 45} Finally, Andrews claims that the state failed to defeat her case of prejudice
because “there is no set of circumstances” under which evidence of her alleged failure to
pay child support would be admissible to prove the other counts, i.e. that she violated the
protective order or committed the offense of menacing by stalking. That is, Andrews
1 Twice in her brief, Andrews claims that “B.A. received a payment of $29,057.30 at the end of 2021 toward the child support arrearage, due to the sale of Andrews’s home.” Appellant’s Brief at 18 citing Tr. at 496 (emphasis added); see also Appellant’s brief at 14. This assertion is patently belied by the record. Although a witness from the Ohio Child Support Enforcement Agency referenced a “$29,057.30 payment,” the “only [child support] payment in 2021 [by Andrews] was made in February, in the amount of $3,000.00, [of] which $2,957.30 was dispersed,” as demonstrated by State’s Exhibit 5, which was admitted without objection. State’s Brief at 19. More importantly, the parties filed a joint stipulation stating that “the home of Amanda Andrews,” jointly owned by her and ex-wife, B.A., sold on July 20, 2022, and that Andrews’s share of the profits, $46,535.50, were paid to B.A. “in January of 2023,”—i.e. not the summer of 2021, and long after Andrews’s trial and convictions. 19. claims that, under the “other acts test,” such evidence would have been barred under
Evid.R. 404(B), which generally bars evidence of other crimes, wrongs or acts to prove a
person’s character.
{¶ 46} But, even if we assume that Evid. R. 404(B) would have barred evidence
regarding her failure to pay child support in a separate trial regarding the other offenses,
the state “need not meet the requirements of the stricter ‘other acts test’” if the evidence
of each offense is presented in a manner that is simple and direct. State v. Powell, 8th
Dist. Cuyahoga No. 107276, 2019-Ohio-4345, ¶ 74, citing State v. Franklin, 62 Ohio
St.3d 118, 122, 580 N.E.2d 1 (1991). In other words, “when simple and direct evidence
exists, an accused is not prejudiced by joinder regardless of the nonadmissibility of
evidence of these crimes as ‘other acts’ under Evid.R. 404(B).” Lott at 163, 555 N.E.2d
293. See also, Gravely at ¶ 38 (“These two tests are disjunctive, so that the satisfaction of
one negates a defendant’s claim of prejudice without having to consider the other test.”).
{¶ 47} Here, the evidence proffered by the state in support of each offense was
simple and direct. Although Andrews concedes that Counts 2 and 3 have “no factual
connection” to Counts 6 and 7 because “the evidence concerns two different alleged
victims” and involved different “type[s] of conduct,”—i.e. M.K. as the victim in the
protection order and menacing counts, and B.A. as the victim in the nonsupport counts—
she argues that the evidence nonetheless overlapped because the jury heard testimony that
the respective victims, M.K. and B.A., communicated with one another.
{¶ 48} But it was Andrews—not the state—that introduced evidence regarding
communications between M.K. and B.A. That is, under cross-examination, M.K. denied
20. communicating with B.A., except for a “[a] couple of times.” M.K. was also asked
whether she had ever been in “a relationship” with B.A., which she firmly denied. And,
when pressed on the subject, M.K. testified that the only time she had ever been in the
“same place as B.A.,” without Andrews also being present, occurred briefly in a
restaurant. The relevancy of this testimony is minimal, at best, and therefore insufficient
to demonstrate that the overall presentation of the state’s evidence was not “simple and
direct.”
{¶ 49} Finally, the trial court cautioned the jury, immediately prior to
deliberations, to consider each count, and the evidence applicable to each count,
separately and to state its findings as to each count uninfluenced by its verdict on any
other counts. Absent evidence to the contrary, we presume that the jury followed the
instructions of the trial court. Gibson, 6th Dist. Lucas Nos. L-13-1222 and L-3-1223,
2015-Ohio-1679, at ¶ 30 (Finding no abuse of discretion where the trial court denied
defendant’s motion to sever where the evidence of the crimes alleged in two indictments
was simple, direct and capable of being separated and where the court gave a similar
instruction to the jury).
{¶ 50} In sum, we find that there was no error, let alone plain error, in the trial
court’s decision to deny Andrews’s request to sever under Crim.R. 14. We find
Andrews’s second assignment of error not well-taken.
C. Andrews failed to establish a case of ineffective assistance of trial counsel.
{¶ 51} In her third assignment of error, Andrews alleges that her trial counsel was
ineffective for failing to renew the motion to sever during trial.
21. {¶ 52} To prevail on a claim of ineffective assistance of counsel, an appellant must
show that counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial court cannot be relied on as having produced a just result.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
“Judicial scrutiny of counsel’s performance must be highly deferential.” State v. Bradley,
42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689. To establish
ineffective assistance of counsel, an appellant must show “(1) deficient performance of
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.” State v. Hale, 119 Ohio St.3d
118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).
{¶ 53} In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies prompted by
reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong
presumption that all decisions fall within the wide range of reasonable professional
assistance. State v. Sallie, 81 Ohio St.3d 673, 675, 693 N.E.2d 267 (1998). Tactical or
strategic trial decisions, even if unsuccessful, do not generally constitute ineffective
assistance. State v. Frazier, 61 Ohio St.3d 247, 255, 574 N.E.2d 483 (1991). Rather, the
errors complained of must amount to a substantial violation of counsel’s essential duties
22. to his client. Bradley at 141-142. Prejudice can be shown by proving “there exists a
reasonable probability that, were it not for counsel’s errors, the result of the trial would
have been different.” Id. at paragraph three of the syllabus.
{¶ 54} Andrews claims that counsel rendered deficient performance by failing to
renew the motion to sever and that she was prejudiced by this failure because the motion
“would have been granted, and the cases [would have been] reset on a different date.”
She claims, “[a]t the very least,” that the issue would have been preserved for appeal and
not relegated to plain error review.
{¶ 55} As discussed above, we found “no error, let alone plain error, in the trial
court’s decision to deny Andrews’s request to sever under Crim.R. 14.” (Emphasis
added). In other words, our resolution of the second assignment of error would have
been the same if the error had been preserved for appellate review by trial counsel. For
this reason, Andrews cannot show that, had counsel renewed the Crim.R. 14 motion, that
there is a reasonable probability that it would been granted. See, e.g., State v. Thompson,
141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 255 (“Each of these claims
recasts a merits argument as ineffective assistance of counsel * * * For the reasons
explained in this opinion, we reject the merits of these underlying claims. As a result, we
conclude that counsel did not provide ineffective assistance by failing to object to these
alleged errors.”)
{¶ 56} We find Andrews’s third assignment of error not well-taken.
23. D. Andrews fails to demonstrate cumulative error
{¶ 57} In her fourth assignment of error, Andrews identifies “other crucial errors”
by trial counsel which she claims amounts to cumulative error.
{¶ 58} First, Andrews argues that trial counsel failed to elicit testimony that she
says would have “undercut” a necessary element of the menacing offense—i.e. whether
M.K. actually believed Andrews would cause her physical harm or mental distress.
Andrews claims that her attorney erred by “waiting until redirect” to ask a defense
witness “about seeing Andrews and [M.K.] together after the civil protection was in
place” because the trial court sustained the state’s objection to this question as beyond the
scope of cross examination. On appeal, Andrews speculates that the testimony would
have “corroborated” her claim that M.K. voluntarily chose to spend time with Andrews,
even after the civil protection order was in effect.
{¶ 59} We reject the argument for two reasons. First, because the witness was
ordered not to answer the question, there is no evidence in the record to support
Andrews’s contention as to how he would have testified. Second, assuming the witness
would have testified as Andrews claims, the testimony would have been, at most,
duplicative of Andrews’s testimony. Thus, we cannot say that the additional testimony
would have had any effect on the jury’s decision to find Andrews guilty of menacing.
Accord Ahreshien, 6th District Lucas No. L-19-1184, 2021-Ohio-1223, at ¶ 50 (Although
trial counsel’s questioning “may have ‘opened the door’ to other testimony of
[defendant’s] bad acts, it did not prejudice the outcome of this case, because it was
duplicative of other, more relevant evidence of appellant’s abuse of [the victim]”).
24. {¶ 60} Second, Andrews complains that, while cross-examining a sheriff’s deputy,
trial counsel failed to establish that M.K. was the sender of a suggestive text message to
Andrews on October 14, 2021, when M.K. was a Southfield, Michigan hotel room, and
allegedly asked if Andrews “was coming to my room.” A copy of a document, purported
to be a series of messages sent to Andrews, was introduced at trial by defense counsel,
but the document did not include the last two digits of the phone number. Andrews
complains that, by failing to elicit the “full phone number” from the witness, the defense
failed to establish M.K. as the sender of the message. Again, we disagree for the reason
that Andrews testified about the exhibit herself, and she confirmed that it was “the text
message exchange where [M.K.] texted me on October 14th at 12:52.” Therefore,
testimony regarding the “full phone number” would have been duplicative of Andrews’s
testimony. Moreover, we cannot say that there would have been a reasonable probability
of a different outcome if this one small piece of corroborating evidence had been elicited
by trial counsel.
{¶ 61} Third, Andrews faults her trial counsel for failing to object when the
prosecutor repeatedly described Andrews as having “tracked” M.K.’s location. Andrews
specifically denied that anyone had engaged in “tracking.” On appeal, Andrews
complains that counsel’s failure to object allowed the jury to “conclude, incorrectly, that
Andrews had been tracking [M.K.’s] phone.” Andrews may not like the term, but she
specifically admitted at trial that she reviewed phone records that showed M.K.’s
“location.” Given that an objection may have drawn undue attention to Andrews’s use
of technology to determine M.K.’s location—whether or not such conduct should be
25. described as “tracking”—trial counsel’s decision not to object can be viewed as
reasonable trial strategy. State v. Vulgamore, 4th Dist Ross No. 19CA3686, 2021-Ohio-
3147, ¶ 42.
{¶ 62} Finally, Andrews complains that trial counsel failed to object to a line of
questioning regarding her arrest and guilty plea to a charge of telephone harassment in
June of 2021. Andrews argues that evidence regarding this conviction was “irrelevant
and prejudicial” because it occurred before the time period identified in Counts 2 or 3.
Andrews, however, neglects to mention that she introduced this evidence under cross-
examination when she told the prosecutor, “I want to talk about the June incident.”
Further, Andrews’s counsel did object to the June of 2021 criminal proceeding as being
“outside the time frame of the criminal charges.” Thus, counsel’s performance was not
deficient.
{¶ 63} In sum, there is no merit to Andrews’s assertion that a cumulation of
alleged errors by her trial counsel resulted in cumulative error. “[W]hen none of the
individual claims of ineffective assistance of counsel have merit, cumulative error cannot
be established simply by joining those meritless claims together.” State v. Graham, 164
Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 170. We find her fourth assignment
of error not well-taken.
IV. Conclusion
{¶ 64} In sum, Andrews’s assignments of error are found not well-taken, and the
trial court’s October 24, 2022 judgment is affirmed.
26. {¶ 65} But, as noted above, the trial court’s judgment entry incorrectly states that
Andrews was found guilty in Count 2 of violating “R.C. 2919.27(A)(1)(B)(4),” a felony
offense. We therefore remand this matter to the trial court for the limited purpose of
issuing a corrected judgment entry indicating that Andrews was convicted of violating
R.C. 2919.27(A)(1) and (B)(2), a misdemeanor of the first degree.
{¶ 66} Andrews is ordered to pay the costs of this appeal pursuant to App.R.24.
Judgment affirmed and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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