[Cite as State v. Chandler, 2017-Ohio-9279.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2017CA00053 KENYAN LAMAR CHANDLER : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2016CR2058A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 26, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN FERRERO AARON KOVALCHIK STARK COUNTY PROSECUTOR 116 CLEVELAND AVENUE N.W. BY: KRISTINE W. BEARD SUITE 808 110 CENTRAL PLAZA SOUTH CANTON, OH 44702 CANTON, OH 44702 [Cite as State v. Chandler, 2017-Ohio-9279.]
Gwin, P.J.
{¶1} Appellant Kenyan Chandler [“Chandler”] appeals his conviction and
sentence after a jury trial in the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} Chandler was indicted on one count of Aggravated Robbery, RC 2911.01(A)
with a firearm specification, RC 2941.145. The following evidence was presented during
Chandler’s jury trial.
{¶3} Brandie McGowan testified that she was working at the Gameroom, a
skilled game center on October 14, 2016 when two men came in the front door with a
gun. McGowan testified that one of the men made the people at the Gameroom stay
where they were while the other man took her into the office where he shattered the
register and took the money. McGowan then testified that the man made her open the
safe and he took all the money from the safe. McGowan also testified that a woman who
had come into the Gameroom earlier stood out in her mind because the woman had told
her she needed help playing the games and the woman received multiple phone calls.
McGowan further testified that the Gameroom had a video surveillance system and the
video showed that the men who had come into the Gameroom were wearing gloves and
their faces were covered. Upon cross-examination, McGowan testified that she did not
recognize Chandler and she did not recall seeing him on October 14, 2016.
{¶4} Officer Chad Kanouff of the Jackson Police Department testified that he was
dispatched to the Gameroom on October 14, 2016 in regards to a robbery. Officer
Kanouff testified that he met Brandie McGowan and she gave him the name of Shania
Summerville as someone he should talk to about his investigation. Officer Kanouff then Stark County, Case No. 2017CA00053 3
made contact with Summerville. Summerville denied both verbally and in a written
statement that she was involved in the crime or that she was familiar with the robbers.
Officer Kanouff asked if he could see the call history on her cell phone. Summerville
agreed and Officer Kanouff documented the numbers on his police report. One of the
recent numbers was 330-356-xxxx1 a call Summerville received at approximate 10:08
P.M. that evening. Summerville advised the officers that the cell phone number belonged
to her boyfriend, Marshawn Oliver. Officer Kanouff did not process the scene for DNA or
fingerprints because the men were wearing masks and gloves and no scientific evidence
was likely to be found at the scene.
{¶5} The next day, Detective Joshua Escola began his investigation. Detective
Escola retrieved and reviewed the videos from the Gameroom. Escola observed that
there was a significant height and weight difference between the two male perpetrators.
Detective Escola also observed that they were wearing dark clothing, masks and gloves,
which indicated that they were experienced and made it hard to collect any scientific
evidence.
{¶6} As part of the investigation, Detective Escola typed the cell phone number
from Summerville's cell phone call history into the Facebook site. Escola found a
Facebook account registered to Chandler with the same cell phone number. Chandler's
Facebook account also showed that Summerville was listed as being one of his friends.
Detective Escola also discovered that Marshawn Oliver is actually Summerville's family
member and not her boyfriend. As a result, Detective Escola attempted to contact
Summerville. Initially Detective Escola was unable to contact Summerville because she
1 The number has been redacted to avoid privacy concerns in the event the number has been re- assigned since the time of trial. Stark County, Case No. 2017CA00053 4
had given the officers a fake telephone number. Detective Escola then contacted Amber
Walters2. Walters advised Escola that she knew both Summerville and Chandler. She
provided Escola with Summerville's number and verified that 330-356-xxxx was the cell
phone number for Chandler. At trial, Walters testified that on October 18, 2017, four days
after the robbery, Chandler called Walters and told her the cell phone number was no
longer good. Walters also testified that Chandler was on a GPS monitor on the night of
the robbery and that the monitor had not been charged. Therefore, Chandler's
whereabouts were unsupervised when the robbery occurred.
{¶7} Escola contacted Summerville who agreed to come to the Jackson Police
Department for a second interview. Initially, Summerville denied knowing anything about
the robbery. However, after being confronted with the cell phone and Facebook
information, Summerville admitted that she was the lookout for the two men at the
Gameroom the night of the robbery. Summerville also advised Detective Escola that the
man holding the gun in the video was her boyfriend, Kenyan Chandler. Summerville also
identified Taronn Jeffries as the other male accomplice. Detective Escola further testified
that Jeffries and Chandler's height and weight were consistent with the men in the
Gameroom video. Detective Escola placed Summerville under arrest for complicity to
commit aggravated robbery.
{¶8} Summerville was subsequently indicted for a felony five theft, in exchange
for her truthful testimony against Chandler. At trial, Summerville testified that in October
of 2016 she and her four-year-old son were living with Chandler. She stated that on
October 14, 2016, Chandler asked her to scope out the Gameroom. She stated that when
2 Ms. Walters was identified at trial as “Officer” and as employed in a “law enforcement capacity.” 1T. at 193-194. Stark County, Case No. 2017CA00053 5
she arrived at the Gameroom the owner walked her around and taught her how to play
the games. While she was there she received two calls from Chandler asking her who
was there including how many men and how many women were present.
{¶9} At approximately 10:15, she saw Chandler and Jeffries come through the
front door of the Gameroom. She admitted that she saw Jeffries take the owner upstairs,
while Chandler stayed at the front door holding the patrons at gunpoint. After the men
left, she stayed seated until the police arrived. She testified that she told the officers that
she did not know anything about the robbery, and gave them a fake name and number.
She testified she did agree to let the officers look at the call history on her phone. She
then left the Gameroom, picked up her son and went home.
{¶10} Summerville testified that when Chandlers and Jeffries got to the house they
were wearing different clothes. Taronn asked her what she told the police. A couple of
days later she got a call from Detective Escola and agreed to meet with him at the Jackson
Police Department. Summerville testified that initially she did not tell the truth but later
admitted knowing about the robbery and gave Escola the names of the other two men.
She stated that because of her confession she was arrested and charged with complicity to
{¶11} At the time of trial, Summerville testified that she originally testified to the
Grand Jury that she did not know that Chandler and Jeffries were involved with the
robbery at the Gameroom until after they got home. She also admitted she told the Grand
Jury that she could not recognize them by their voices. Summerville further stated that
she gave the police the wrong phone number in order to hide from them. Stark County, Case No. 2017CA00053 6
{¶12} After the presentation of evidence, Chandler was found guilty as charged in
the indictment. Chandler was sentenced to serve a 6-year prison sentence for the
aggravated robbery and a 3-year mandatory consecutive sentence for the firearm
specification.
Assignments of Error
{¶13} Chandler raises four assignments of error,
{¶14} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
GRANT APPELLANT'S MOTION FOR A CONTINUANCE.
{¶15} “II. THE TRIAL COURT ERRED WHEN IT ALLOWED TESTIMONY THAT
WAS MORE PREJUDICIAL THAN PROBATIVE.
{¶16} “III. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶17} “IV. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND OF
ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I,
SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE I-HS TRIAL
COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.”
I.
{¶18} In the first assignment of error, Chandler argues that the trial court abused
its discretion when the court denied counsel's request for a continuance to recall Detective
Escola as a State's witness who had not been subpoenaed by the defense.
{¶19} At trial, the state rested after the testimony of Detective Escola had
concluded. (1T. at 223). The court subsequently adjourned for the day, after denying Stark County, Case No. 2017CA00053 7
Chandler’s Criminal Rule 29 motion for acquittal. (1T. at 227). The following morning,
defense counsel informed the court that Chandler wished to have Detective Escola
recalled; however, the defense did not subpoena the detective. Therefore, the defense
requested a continuance in order to procure Detective Escola. When asked by the trial
judge the reason for the request, defense counsel replied, “To cross-examine him again
about the phone records.” (2T. at 232). The trial court denied the motion.
STANDARD FOR APPELLATE REVIEW.
{¶20} Ordinarily a reviewing court analyzes a denial of a continuance in terms of
whether the court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84
S.Ct. 841, 11 L.Ed.2d 921(1964). If, however, the denial of a continuance is directly linked
to the deprivation of a specific constitutional right, some courts analyze the denial in terms
of whether there has been a denial of due process. Bennett v. Scroggy, 793 F.2d 772
(6th Cir 1986). A defendant has an absolute right to prepare an adequate defense under
the Sixth Amendment of the United States Constitution and a right to due process under
the Fifth and Fourteenth Amendments. United States v. Crossley, 224 F.3d 847, 854(6th
Cir. 2000). The United States Supreme Court has recognized that the right to offer the
testimony of witnesses and compel their attendance is constitutionally protected.
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019(1967). The
Ohio Supreme Court recognized that the right to present a witness to establish a defense
is a fundamental element of due process of law. Lakewood v. Papadelis, 32 Ohio St.3d
1, 4-5, 511 N.E.2d 1138(1987). A trial court's failure to grant a continuance to enable a
defendant to exercise his constitutionally protected right to offer the testimony of
witnesses and compel their attendance may, in some circumstances, constitute a denial Stark County, Case No. 2017CA00053 8
of due process. Mackey v. Dutton, 217 F.3d 399, 408(6th Cir 2000); Bennett v. Scroggy,
supra, 793 F.2d at 774. See also, State v. Wheat, 5th Dist. Licking No. 2003-CA-00057,
2004-Ohio-2088 at ¶ 16.
{¶21} Among the factors to be considered by the court in determining whether the
continuance was properly denied are: (1) the length of the requested delay, (2) whether
other continuances had been requested and granted, (3) the convenience or
inconvenience to the parties, witnesses, counsel and court, (4) whether the delay was for
legitimate reasons or whether it was “dilatory, purposeful or contrived”, (5) whether the
defendant contributed to the circumstances giving rise to the request, (6) whether denying
the continuance will result in an identifiable prejudice to the defendant's case, and (7) the
complexity of the case. Powell v. Collins, 332 F.3d 376, 396(6th Cir 2003); State v. Unger,
67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078(1981), 1080; State v. Wheat, supra at ¶ 17.
{¶22} On a petition for habeas corpus relief, the federal courts have enumerated
a slightly different set of factors that a reviewing court should consider in determining
whether an accused was deprived of his rights to compulsory process and due process
of law by denial of a motion for continuance: “[1] the diligence of the defense in
interviewing witnesses and procuring their testimony within a reasonable time, [2] the
specificity with which the defense is able to describe their expected knowledge or
testimony, [3] the degree to which such testimony is expected to be favorable to the
accused and [4] the unique or cumulative nature of the testimony.” Hicks v. Wainwright,
633 F.2d 1146, 1149(5th Cir 1981) (quoting United States v. Uptain, 531 F.2d 1281,
1287(5th Cir 1976); see, also, Bennett v. Scroggy, supra, 793 F.2d at 774; State v. Wheat,
supra at ¶ 18. Stark County, Case No. 2017CA00053 9
No evidence Chandler was prejudiced by the denial.
{¶23} The record shows that on the day of trial, prior to the presentation of
evidence, the state provided the defense with copies of cell phone records. (1T. at 128).
The defense moved the court for a continuance of the trial in order to have an opportunity
to review the records to see if there was anything of use in the records or if the defense
needed to raise an objection. The state explained why the records were being provided
at the time of trial. According to the state the records had been subpoenaed, defense
was aware of the subpoena and the records had just been received by the state that day.
{¶24} The trial court ruled that the cell phone records were not admissible in the
state's case due to the lateness of the disclosure. However, the trial court gave the
defense time to determine if the records contained any exculpatory information. (1T. at
130).
{¶25} The matter proceeded to trial. Detective Escola testified. No cell phone
records were discussed or introduced during his direct testimony. On cross-examination,
the defense questioned the officer about the cell phone records and how cell phone calls
are triangulated. The officer testified that triangulation is a complicated process wherein
cell phone calls are picked up by nearby cell phone towers and then are evaluated for
overlap. The overlapping of signals from several cell phone towers helps law
enforcement determine the location of a particular cell phone at the time the call was
made. Detective Escola testified that in this case, the cell phone signal from Chandler's
phone was only picked up by one tower in Massillon, which is located at Beaumont
Avenue NW. The tower is located five miles from the Gameroom. (1T. at 186-187).
Detective Escola further testified that because the call was only picked up by one tower, Stark County, Case No. 2017CA00053 10
the cell phone information was not helpful in triangulating the exact location of Chandler's
cell phone on the night in question. (1T. at 188). Detective Escola stated that he could
only testify that the cell phone signal was received somewhere within eleven square miles
of the tower. The eleven square mile area is broad and includes both the location of the
Gameroom and Chandlers' residence, information that was not helpful to the
investigation. (1T. at 188).
{¶26} In the case at bar, there is no proffer in the record that further examination
regarding the cell phone records would provide any additional information in aid of the
defense. There is no evidence that cross-examining Detective Escola again would have
uncovered exculpatory evidence on Chandler’s behalf. Chandler has failed to
demonstrate how the failure to grant the continuance actually prejudiced his defense.
{¶27} After careful examination of the record, we find that the trial court did not
abuse its discretion in denying Chandler’s request for a continuance. The trial court had
an interest in controlling its own docket and ensuring the prompt and efficient
administration of justice. See Unger, 67 Ohio St.2d at 67, 423 N.E.2d 1078. The trial
court clearly felt that competent counsel adequately represented Chandler and that there
was no reason to delay the trial. As such, we find that the trial court did not abuse its
discretion when it denied the motion to continue the trial and we find no violation of
Chandler’s due process rights.
{¶28} Chandler’s first assignment of error is overruled.
II.
{¶29} In his second assignment of error, Chandler argues that the trial court
abused its discretion by permitting the introduction of testimony that was more prejudicial Stark County, Case No. 2017CA00053 11
than probative. Specifically, Chandler argues that the trial court abused its discretion in
permitting the testimony of Amber Walters. Walters testified that she worked in law
enforcement, was familiar Chandler's cell phone number, and knew that Chandler was
required to wear a GPS ankle bracelet. Chandler argues that the testimony improperly
gave the jury the impression that he had a criminal history and/or was under supervision
at the time of the offense.
{¶30} Because no objection at trial was raised to the testimony now claimed to
have been admitted as error, we review only for plain error.
{¶31} Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain errors or
defects affecting substantial rights” notwithstanding an accused’s failure to meet his
obligation to bring those errors to the attention of the trial court. However, the accused
bears the burden to demonstrate plain error on the record, State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a
deviation from a legal rule” that constitutes “an ‘obvious’ defect in the trial proceedings,”
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶32} Even if the error is obvious, it must have affected substantial rights, and
“[w]e have interpreted this aspect of the rule to mean that the trial court’s error must have
affected the outcome of the trial.” Id. The Ohio Supreme Court recently clarified in State
v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is
“required to demonstrate a reasonable probability that the error resulted in prejudice—
the same deferential standard for reviewing ineffective assistance of counsel claims.”
(Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81– Stark County, Case No. 2017CA00053 12
83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Accord, State v. Thomas, ___ Ohio St.3d
___, 2017-Ohio-8011, ___N.E.3d ____ (Oct. 4, 2017), ¶32-34.
{¶33} If the accused shows that the trial court committed plain error affecting the
outcome of the proceeding, an appellate court is not required to correct it; the Supreme
Court has “admonish[ed] courts to notice plain error ‘with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.’”
(Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accord, State v. Thomas,
___ Ohio St.3d ___, 2017-Ohio-8011, ___N.E.3d ____ (Oct. 4, 2017), ¶32-34.
{¶34} “[A] trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991). Evid.R. 402 states that all relevant evidence is admissible. “Relevant
evidence is defined as evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.”
{¶35} In State v. Crotts, the Ohio Supreme Court explained,
As a legal term, “prejudice” is simply “[d]amage or detriment to one’s
legal rights or claims.” Black’s Law Dictionary (8th Ed.1999) 1218. Thus, it
is fair to say that all relevant evidence is prejudicial. That is, evidence that
tends to disprove a party’s rendition of the facts necessarily harms that
party’s case. Accordingly, the rules of evidence do not attempt to bar all Stark County, Case No. 2017CA00053 13
prejudicial evidence- -to do so would make reaching any result extremely
difficult. Rather, only evidence that is unfairly prejudicial is excludable.
“‘Exclusion on the basis of unfair prejudice involves more than a
balance of mere prejudice. If unfair prejudice simply meant prejudice,
anything adverse to a litigant’s case would be excludable under Rule 403.
Emphasis must be placed on the word “unfair.” Unfair prejudice is that
quality of evidence which might result in an improper basis for a jury
decision. Consequently, if the evidence arouses the jury’s emotional
sympathies, evokes a sense of horror, or appeals to an instinct to punish,
the evidence may be unfairly prejudicial. Usually, although not always,
unfairly prejudicial evidence appeals to the jury’s emotions rather than
intellect.’ ” Oberlin v. Akron Gen. Med. Ctr. (2001), 91 Ohio St.3d 169, 172,
743 N.E.2d 890, quoting Weissenberger’s Ohio Evidence (2000) 85–87,
Section 403.3.
104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23-24.
{¶36} In the case at bar, Walters testified that she was employed by Stark County
in a law enforcement capacity and that she was familiar with Chandler and Chandler's
cell phone number. Walters identified Chandler's cell phone number as being 330-356-
xxxx the same cell phone number that appeared on the Shania Summerville's cell phone
on the night of the Gameroom robbery. Walters also testified that Chandler was required
to wear a GPS monitor. Walters testified that upon reviewing the GPS records she
discovered that the monitor was uncharged from approximately 10:18 P.M. on October
14, 2016 until 8:27 AM, October 15, 2016. Stark County, Case No. 2017CA00053 14
{¶37} In the case at bar, Chandler argued that there was not enough credible
evidence to identify him as one of the robbers of the Gameroom. The state introduced
the testimony of Walters to corroborate the testimony of Summerville, whom the defenses
characterized as untrustworthy. While this information was prejudicial it was not unfairly
prejudicial but rather relevant to whether Chandler was one of the masked individuals that
robbed the game room. The evidence was not admitted for an improper purpose.
Chandler’s claim of unfair prejudice must therefore fail. There is little if any probability
that the admission of Walters’ testimony affected the outcome of the trial.
{¶38} Chandler’s second assignment of error is overruled.
III.
{¶39} In his third assignment of error, Chandler argues that his conviction is
against the manifest weight and sufficiency of the evidence. Specifically, Chandler
argues that there was no physical or scientific evidence linking him to the crime and that
the testimony of the accomplice Shania Summerville was not credible.
{¶40} When an appellate court considers a claim that a conviction is against the
manifest weight of the evidence, the court must dutifully examine the entire record, weigh
the evidence, and consider the credibility of witnesses. State v. Thompkins, 78 Ohio St.3d
380, 386–387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other
grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355.
The reviewing court must bear in mind, however, that credibility generally is an issue for
the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001);
State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31. Because the Stark County, Case No. 2017CA00053 15
trier of fact sees and hears the witnesses and is particularly competent to decide whether,
and to what extent, to credit the testimony of particular witnesses, the appellate court
must afford substantial deference to its determinations of credibility. Barberton v. Jenney,
126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. * * *
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
Thus, an appellate court will leave the issues of weight and credibility of the evidence to
the fact finder, as long as a rational basis exists in the record for its decision. State v.
Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶41} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional Stark County, Case No. 2017CA00053 16
case in which the evidence weighs heavily against the conviction.” Id. Accord, State Mast,
5th Dist. Holmes No. 17CA11, 2017-Ohio-8388, ¶32-34.
ISSUE FOR APPEAL.
A. Whether the trial court clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
Sufficiency of the Evidence.
{¶42} There is no dispute in the case at bar that robbery with a firearm as alleged
in the indictment had in fact occurred. Chandler’s main argument is that there was
insufficient evidence to identify him as the perpetrator of those crimes.
{¶43} Every criminal prosecution requires proof that the person accused of the
crime is the person who committed the crime. This truism is reflected in the state’s
constitutional burden to prove the guilt of “the accused” beyond a reasonable doubt. In
re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Like any fact, the
state can prove the identity of the accused by “circumstantial or direct” evidence. State
v. Jenks, 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492 (1991). The relevant question in
a sufficiency-of-the-evidence review is whether, “after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id., at paragraph two of the
syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979).
{¶44} In the case at bar, Summerville testified that Chandler was one of the two
men who robbed the Gameroom. Her testimony was corroborated by cell phone records
indicating that Chandler called Summerville two times immediately preceding the robbery Stark County, Case No. 2017CA00053 17
on October 14, 2016. Walters corroborated the cell phone number. At trial, Walters
testified that on October 18, 2017, four days after the robbery, Chandler called Walters
and told her the cell phone number was no longer good. Walters also testified that
Chandler was on a GPS monitor on the night of the robbery and that the monitor had not
been charged and therefore Chandler's whereabouts were unsupervised when the
robbery occurred.
{¶45} Summerville testified and was cross-examined at trial. The jury heard that
she had lied during her interviews with the police, lied during her testimony to the Grand
Jury and was given a favorable plea deal in exchange for her testimony.
{¶46} Viewing the evidence in the case at bar in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
reasonable doubt that Chandler was guilty of Aggravated Robbery with a firearm
specification. We hold, therefore, that the state met its burden of production regarding
Aggravated Robbery with a firearm specification and, accordingly, there was sufficient
evidence to support Chandler’s conviction.
Manifest weight of the Evidence.
{¶47} The Ohio Supreme Court has emphasized: “ ‘[I]n determining whether the
judgment below is manifestly against the weight of the evidence, every reasonable
intendment and every reasonable presumption must be made in favor of the judgment
and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E. 2d
517, 2012–Ohio–2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,
80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,
Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is Stark County, Case No. 2017CA00053 18
in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th
Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212(1967).
{¶48} Ultimately, “the reviewing court must determine whether the appellant or the
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008–Ohio–6635,
¶ 31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004–Ohio–3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.
99 CA 149, 2002–Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201,
722 N.E.2d 125(7th Dist. 1999).
{¶49} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889, Stark County, Case No. 2017CA00053 19
citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although
the evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
{¶50} In the case at bar, the jury heard the witnesses, viewed the evidence and
heard Chandler’s arguments concerning the lack of physical evidence and Summerville’s
lack of credibility.
{¶51} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury
neither lost their way nor created a miscarriage of justice in convicting Chandler of the
charges.
{¶52} Based upon the foregoing and the entire record in this matter, we find
Chandler’s conviction is not against the sufficiency or the manifest weight of the evidence.
To the contrary, the jury appears to have fairly and impartially decided the matters before
them. The jury heard the witnesses, evaluated the evidence, and was convinced of
Chandler’s guilt.
{¶53} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime for which Chandler was convicted.
{¶54} Chandler’s third assignment of error is overruled. Stark County, Case No. 2017CA00053 20
IV.
{¶55} In his fourth assignment of error, Chandler argues that his counsel was
ineffective for failing to make a motion in limine and/or object to the introduction of the
testimony of Amber Walters and failing to request a mistrial.
{¶56} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v, Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶57} In order to warrant a finding that trial counsel was ineffective, the petitioner
must meet both the deficient performance and prejudice prongs of Strickland and Bradley.
Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251(2009).
{¶58} The United States Supreme Court discussed the prejudice prong of the
Strickland test,
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id., at
694, 104 S.Ct. 2052. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S.Ct. Stark County, Case No. 2017CA00053 21
2052. Counsel’s errors must be “so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284
(2010). An ineffective-assistance claim can function as a way to escape
rules of waiver and forfeiture and raise issues not presented at trial, and so
the Strickland standard must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very adversary process the
right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104
S.Ct. 2052. Even under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and with the
judge. It is “all too tempting” to “second-guess counsel’s assistance after
conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell
v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002);
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180
(1993). The question is whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not whether it
deviated from best practices or most common custom. Strickland, 466 U.S.,
at 690, 104 S.Ct. 2052.
Harrington v. Richter, 562 U.S. 86, 104-105, 131 S.Ct. 770, 777-778, 178 L.Ed.2d
624(2011). Stark County, Case No. 2017CA00053 22
{¶59} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Bradley, 42 Ohio St.3d at 143, 538 N.E.2d 373, quoting Strickland, 466
U.S. at 697, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).
ISSUES FOR APPEAL.
1. Whether Chandler was prejudiced by counsel’s failure to object or file a motion
in limine concerning the testimony of Amber Walter.
{¶60} “‘The failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.’” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d
136 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831(1988)
Accord, State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233. A
defendant must also show that he was materially prejudiced by the failure to object.
Holloway, 38 Ohio St.3d at 244, 527 N.E.2d 831.
{¶61} We have found in our disposition of Chandler’s second assignment of error
that Walters’ testimony concerning Chandler’s cellular phone number and his wearing a
GPS monitor during the time of the robbery was properly introduced during Chandler’s
trial.
{¶62} Accordingly, counsel was not ineffective in failing to object or move to
exclude this testimony.
2. Whether Chandler was prejudiced by counsel’s Failure to move for a mistrial
when the state referred to Chandler wearing a GPS monitor at the time of the robbery
during the state’s closing argument. Stark County, Case No. 2017CA00053 23
{¶63} In the rebuttal closing argument, the state asked the jury to examine the
video of the crime scene and notice that Chandler had a bulge near the ankle on his right
leg, presumably inferring that he was wearing a GPS. The defense objected to the state's
argument and the court sustained the objection. (2T. at 251). The trial court instructed
the jury,
Disregard the comment, folks. There is no evidence of it. It was
never brought up during the testimony so the objection is sustained.
2T. at 251. After the jury was excused to deliberate, defense counsel made a
motion for a mistrial arguing as follows:
[Defense]: Your honor, at this point I would ask the Court to
declare a mistrial in this case due to [the state’s] improper rebuttal argument
in which he started to infer that one of—the picture that he was showing the
jurors, that in that picture that there was a bulge located on the right leg of
the individual in that picture, and that was indicative of a house arrest
monitor bracelet.
As I stated in my objection, there was no evidence presented to the
Jury with regards to anyone being –anyone in the picture having a house
arrest bracelet on.
I believe that it was improper closing argument, and that it allowed
the jury to infer that even though there was no evidence presented to the
fact, that the person in the photo is actually Mr. Chandler; even though there
is no evidence that a house arrest bracelet is evident in the photo. It also Stark County, Case No. 2017CA00053 24
prohibited me from commenting on the photo, given the fact that it was done
in rebuttal,
Again, Your Honor, on behalf of Mr. Chandler, I would ask the Court
to declare a mistrial.
{¶64} 2T. at 279-280. Accordingly, Chandler did make a motion for a mistrial.
Chandler does not assign as error on appeal the trial court’s denial of his motion.
{¶65} In Bruton v. United States, 391 U.S. 123, 135-136, 88 S.Ct. 1620, 20
L.Ed.2d 476(1968), the United States Supreme Court noted:
* * * Not every admission of inadmissible hearsay or other evidence
can be considered to be reversible error unavoidable through limiting
instructions; instances occur in almost every trial where inadmissible
evidence creeps in, usually inadvertently. “A defendant is entitled to a fair
trial but not a perfect one.” * * * It is not unreasonable to conclude that in
many such cases the jury can and will follow the trial judge’s instructions to
disregard such information.”
{¶66} Further, “juries are presumed to follow their instructions.” Zafiro v. United
States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317(1993). “A presumption always
exists that the jury has followed the instructions given to it by the trial court,” Pang v.
Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313(1990), at paragraph four of the syllabus,
rehearing denied, 54 Ohio St.3d 716, 562 N.E.2d 163, approving and following State v.
Fox, 133 Ohio St. 154, 12 N.E.2d 413(1938); Browning v. State, 120 Ohio St. 62, 165
N.E. 566(1929). Stark County, Case No. 2017CA00053 25
{¶67} Chandler has not argued or cited any evidence in the record that the jury
failed to follow the trial court’s instruction not to consider the evidence concerning the
GPS monitor in the video surveillance evidence.
{¶68} Under these circumstances, there is nothing in the record to show that the
jury would have found Chandler not guilty had the testimony and comments concerning
the GPS ankle bracelet not been made on the part of the prosecution. In the
circumstances of the case, no prejudice amounting to a denial of constitutional due
process has been shown.
{¶69} Accordingly, Chandler has failed to demonstrate that he was prejudiced by
his trial counsel’s performance.
{¶70} Chandler’s fourth Assignment of error is overruled.
{¶71} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle, J., concur
.