State v. Holmes

2026 Ohio 736

• Court: Ohio Court of Appeals
• Decided: March 5, 2026
• Docket: 115123
• Status: Published

Opinion

[Cite as State v. Holmes, 2026-Ohio-736.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff- Appellee, : No. 115123 v. :

ANTHONY HOLMES, :

Defendant-Appellant. :

_______________________________________

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 5, 2026

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-23-681351-K and CR-24-690934-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Andrew F. Rogalski and Samantha M. Sohl, Assistant Prosecuting Attorneys, for appellee.

Eric M. Levy, for appellant.

MICHELLE J. SHEEHAN, A.J.:

Defendant-appellant Anthony Holmes (“Holmes”) appeals from the

judgment of his convictions for interfering with civil rights, dereliction of duty, tampering with records, and telecommunications fraud. On appeal, Holmes

challenges 1) the sufficiency of the evidence supporting his convictions; 2) the jury’s

findings of guilt, alleging that his convictions are against the manifest weight of the

evidence; 3) the verdict forms signed by the jury with respect to his tampering-with-

records conviction; 4) the trial court’s denial of his motion to compel the mental-

health records of a State’s witness; 5) the constitutional effectiveness of his counsel

and the trial court’s failure to sever his offenses from those of his codefendant; 6)

his counsel’s failure to object to the jury instructions provided to the jury; 7) his

conviction for telecommunications fraud and his counsel’s effectiveness, alleging

that a recent amendment to telecommunications-fraud statute rendered it

inapplicable to him and that the jury should have been instructed as such; 8) the

effectiveness of his counsel and alleges he was denied his right to a unanimous

verdict on his tampering-with-records conviction since the indictment specified

multiple records that could have been affected; and 9) his trial counsel’s failure to

request, and the trial court’s failure to merge, his convictions for tampering with

records and telecommunications fraud prior to sentencing.

Upon a thorough review of the record and applicable law, we overrule

each of Holmes’s assignments of error. The convictions and sentences are affirmed.

I. Background Overview

A. Relevant Facts

On October 3, 2021, Da’Shawn Allen (“Allen”) was operating a stolen

vehicle. Allen testified that at some point while he was driving, the East Cleveland police activated their lights and attempted to initiate a traffic stop. Rather than

stopping, Allen fled, taking the police on a lengthy chase through Cleveland. Allen

stated that during the chase, he was unable to stop his vehicle because when he

began to slow down to stop, the police vehicles kept “bumping” into his car. Allen

explained the police were hitting his vehicle, “trying to make me go up the road.”

The pursuit ended when a two-door white Challenger crashed into Allen’s vehicle,

ejecting him from the vehicle.

Anthony Holmes was one of the East Cleveland police officers involved

in the pursuit of Allen. Holmes testified that at around 8 or 9 o’clock in the evening,

he heard about the pursuit over the radio and joined the chase as backup. Holmes’s

partner, Tristan Homan (“Homan”), was in the passenger seat during the pursuit.

Holmes eventually became the lead vehicle in the chase, traveling approximately one

or two lengths behind Allen’s vehicle. Holmes testified that throughout the pursuit,

Allen kept “brake-checking” him. Holmes explained that “brake-checking” occurs

when a suspect accelerates their vehicle and then “slow[s] down real fast.”

At a point during the pursuit, Holmes’s vehicle collided with Allen’s

vehicle. Footage captured from Homan’s body camera that was worn during the

chase was introduced at trial. A few moments prior to the collision, Holmes is heard

saying something to the effect of “he ain’t losing us.” Holmes’s vehicle then

accelerated, ran a red light, and is heard colliding into Allen’s vehicle. Holmes

would later tell investigators that he struck Allen’s vehicle. A few moments after the

collision, Holmes instructs Homan to “tell them they struck our vehicle.” Homan is heard radioing dispatch, “Headquarters, be advised, vehicle just brake-checked us

striking the front of 3134. We are still operational.”

After Allen was arrested, Holmes’s codefendant, Ian W. McInnes,

authored a police report concerning the pursuit. Within that report, with respect to

the collision between Holmes’s and Allen’s vehicles, the report indicates that

“[Allen] intentionally stopped to cause Unit 3134 to strike him.[1] Allen also

attempted to strike Cleveland Police Unit 254 while east on Lorain Ave.”

B. Indictments

In May 2023, Holmes was charged in Cuyahoga C.P.

No. CR-23-681351, in a multicount indictment, along with ten codefendants

concerning multiple different incidents. The charges relevant to Holmes in this

appeal relate to the traffic stop and arrest of Allen on October 3, 2021. These counts

included the following:

46. Attempted felonious assault, in violation of R.C. 2923.02/2903.11(A)(1), a felony of the third degree;

47. Assault, in violation of R.C. 2903.13(A), a misdemeanor of the first degree;

48. Interfering with civil rights, in violation of R.C. 2921.45(A), a misdemeanor of the first degree;

49. Dereliction of duty, in violation of R.C. 2921.44(B), a misdemeanor of the second degree;

50. Tampering with records, in violation of R.C. 2913.42(A)(1), a felony of the third degree;

1 Unit 3134 is Holmes’s vehicle number. 51. Telecommunications fraud, in violation of R.C. 2913.05(A), a felony of the fifth degree.

Holmes was also listed as a defendant in Counts 57, 59, 60, 61, and 62

of the indictment, but these charges were later dismissed by the State and reindicted

in a second, separate indictment in Cuyahoga C.P. No. CR-24-690934, which

included charges for tampering with evidence, telecommunications fraud,

obstructing justice, obstructing official business, and dereliction of duty. The issues

raised by Holmes in this appeal all relate to his convictions and sentences arising

from the first indictment in Case No. CR-23-681351.

C. Severance

On January 23, 2024, in Case No. CR-23-681351, the State filed a

motion to sever the defendants listed in the indictment, to be tried in two separate

trials. On March 24, 2024, the trial court denied in part and granted in part the

State’s motion. The trial court severed the indictment to be tried in three separate

trials, known as Trial A, Trial B, and Trial C. Trial C is relevant to this appeal, which

involves Holmes’s convictions for interfering with civil rights, dereliction of duty,

tampering with records, and telecommunications fraud. Holmes was ultimately

tried with his codefendant McInnes.

D. Trial

A jury trial for Holmes and McInnes began on October 7, 2024. With

respect to Holmes, the jury returned a verdict finding him guilty of the following

counts set forth in the indictment: Count 48, interfering with civil rights; Count 49, dereliction of duty; Count 50, tampering with records; and Count 51,

telecommunications fraud. The jury returned a verdict of not guilty with respect to

Counts 46 and 47, attempted felonious assault and assault, respectively.2

E. Sentencing

Sentencing was held on April 14, 2025. Prior to sentencing, the trial

court merged Count 49 into Count 50. The court imposed a jail term of 180 days on

Count 48; a prison term of 12 months on Count 50; and a prison term of 12 months

on Count 51. The sentences were run concurrently for a total aggregate prison term

of 12 months.

F. Appeal

Holmes appeals his convictions, raising nine assignments of error for

our review:

1. The trial court erred by entering a judgment of conviction for tampering with records, telecommunications fraud, interfering with civil rights, and dereliction of duty because the convictions were not supported by sufficient evidence.

2. [Holmes’s] convictions for tampering with records, telecommunications fraud, interfering with civil rights, and dereliction of duty are against the manifest weight of the evidence.

3. The trial court erred when it convicted [Holmes] of a third-degree felony in [Count 50] when the jury verdict only supported a conviction for a first-degree misdemeanor.

4. The trial court erred by denying [Holmes’s] motion to compel the mental health records of the state’s key witness, thereby violating

2 On January 10, 2025, in Case No. CR-24-690934, prior to sentencing, Holmes entered

a plea of guilty to two counts of attempted communications fraud. [Holmes’s] constitutional rights to confrontation, compulsory process, and a fair trial.

5. Trial counsel was ineffective and the trial court otherwise committed plain error by joining defendants for trial and admitting irrelevant and highly prejudicial evidence of other acts by codefendant officers, which violated [Holmes’s] right to a fair trial.

6. Trial counsel was ineffective and the trial court otherwise committed plain error by providing the jury with an incorrect instruction on the definition of data for tampering with records.

7. Trial counsel was ineffective in failing to assert and the trial court otherwise committed plain error by failing to instruct the jury on the R.C. 2913.05(C)(2) exception precluding the conviction of law enforcement personnel for telecommunications fraud.

8. Trial counsel was ineffective and the trial court otherwise committed plain error by permitting the tampering with records count to proceed forward to a jury trial when count 50 of the indictment charged multiple facts.

9. Trial counsel was ineffective and the trial court otherwise committed plain error by failing to merge the convictions for tampering with records and telecommunications fraud.

II. Law and Analysis

A. First Assigned Error for Review — Sufficiency

In his first assigned error for review, Holmes alleges that the State

presented insufficient evidence to support his convictions for tampering with

records, telecommunications fraud, interfering with civil rights, and dereliction of

duty. After a thorough review of the record, we find that the evidence was sufficient

to support the convictions for each of these offenses. 1. Standard of Review

“The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial.” State v. Wilborn, 2024-Ohio-

5003, ¶ 37 (8th Dist.), citing State v. Cottingham, 2020-Ohio-4220, ¶ 32 (8th Dist.).

In reviewing a challenge based on sufficiency, we must “‘determine whether the

evidence, if believed, would convince the average person of the defendant’s guilt

beyond a reasonable doubt.’” State v. Webb, 2025-Ohio-456, ¶ 9 (8th Dist.), quoting

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The

relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt.” Jenks at paragraph two of the

syllabus. A sufficiency review “is not a factual determination, but a question of law.”

State v. Jackson, 2025-Ohio-109, ¶ 25 (8th Dist.), citing State v. Thompkins, 78

Ohio St.3d 380, 386 (1997).

When reviewing the evidence, we must keep in mind that “[p]roof of

guilt may be supported ‘by circumstantial evidence, real evidence, and direct

evidence, or any combination of all three, and all three have equal probative value.’”

Wilborn at ¶ 38, quoting State v. Radano, 2017-Ohio-1034, ¶ 35 (8th Dist.). And

although each type of evidence has their obvious differences, “those differences are

irrelevant to the probative value of the evidence, and circumstantial evidence carries

the same weight as direct evidence.” Id., citing State v. Cassano, 2012-Ohio-4047,

¶ 13 (8th Dist.). Our review of the evidence is not to determine “whether the state’s evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” Thompkins at 390.

2. Analysis

a. Tampering With Records

Holmes was convicted of tampering with records in violation of

R.C. 2913.42(A)(1). R.C. 2913.42(A) provides, in relevant part:

(A) No person, knowing the person has no privilege to do so, and with purpose to defraud or knowing that the person is facilitating a fraud, shall do any of the following:

(1) Falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data, or record[.]

i. Purpose to Defraud

Holmes first argues that the evidence presented at trial was

insufficient to demonstrate that Holmes acted with the purpose to defraud. The

term defraud “necessarily implies an element of deception.” State v. Truckey, 2019-

Ohio-407, ¶ 16 (11th Dist.). Accordingly, R.C. 2913.01(B) defines “defraud” as “to

knowingly obtain, by deception, some benefit for oneself or another, or to knowingly

cause, by deception, some detriment to another.”

Holmes claims that the evidence was insufficient to demonstrate any

alleged inaccuracies were made with fraudulent intent or that he did so to cause

detriment to Allen or to receive a benefit to himself. The law does not require direct

evidence of intent to support a conviction for tampering with records. Rather, intent

may be proved by circumstantial evidence, “gathered from all the surrounding facts and circumstances.” State v. Dickerson, 2023-Ohio-4787, ¶ 46 (8th Dist.), citing

State v. Cammon, 2018-Ohio-3183, ¶ 19 (8th Dist.).

To begin, the State introduced the body-camera video of Holmes’s

partner, Homan, who was in the passenger seat of Holmes’s vehicle when he collided

with Allen. The video shows that just prior to colliding with Allen, Holmes is heard

saying, “[H]e ain’t losing us.” The vehicle is heard accelerating just before running

a red light and subsequently striking Allen’s vehicle. Approximately 10 seconds after

the collision, Allen is heard telling Homan, something to the effect of “tell them they

struck our vehicle.” Homan is heard radioing dispatch, “Headquarters, be advised,

vehicle just brake-checked us striking the front of 3134. We are still operational.”

The State introduced an interview Holmes later conducted with investigators where

he admitted that he struck Allen’s vehicle. A reasonable jury could determine that

the statement by Holmes, that “they struck our vehicle,” was incorrect or false.

The State also presented evidence demonstrating why Holmes would

instruct Homan to make a false statement over the radio. Testimony was presented

concerning East Cleveland Police Department’s policies concerning “PIT”

maneuvers. A “PIT” maneuver is a technique used to stop a vehicle by hitting it in

its rear corner panel. Robert Prevot testified as an expert on use of force and police

policies. He testified that use of the “PIT” maneuver or ramming another vehicle

could be potentially fatal.

Prevot testified that the use of the “PIT” maneuver implemented by

Holmes was not a justified use of force. He noted that according to the East Cleveland Police policies, prior to performing a “PIT” maneuver, an officer must

have training and receive prior approval from a supervisor. The evidence presented

at trial demonstrated that Holmes did not receive approval prior to colliding with

Allen. Further, Holmes testified that never received training in “PIT” maneuvers. A

reasonable jury could determine that Holmes instructed Homan to radio an

incorrect or false statement to cover up his own violation of East Cleveland Police

policies to avoid potential discipline.

ii. Facilitation of a Fraud

Holmes next argues that the evidence was insufficient to demonstrate

that he knowingly facilitated a fraud. Holmes argues that there was insufficient

evidence to demonstrate that he was the person that directly tampered with any

records since he neither made the radio broadcast nor wrote the police report that

was ultimately affected by instructing Homan to issue a false broadcast.

As discussed above, there was sufficient evidence for the jury to

determine that Holmes instructed Homan to make a false radio call to benefit

himself. The fact that he was not the person that made the radio broadcast or

authored the police report is of no significance. Deception is defined under the

general fraud definitions as “knowingly deceiving another or causing another to be

deceived by any false or misleading representation, by withholding information, by

preventing another from acquiring information, or by any other conduct, act, or

omission that creates, confirms, or perpetuates a false impression in another[.]”

R.C. 2913.01(A). A person acts “knowingly,” regardless of their purpose, if they are “aware that the person’s conduct will probably cause a certain result or will probably

be of a certain nature. A person has knowledge of circumstances when the person

is aware that such circumstances probably exist.” R.C. 2901.22(B).

As discussed above, the State presented sufficient evidence for the

jury to determine that Holmes instructed Homan to make a false call over the radio.

Holmes also testified that he was aware that multiple people had access to

transmissions made over the radio, including dispatch, the chief, as well as other

cruisers on the road. He also testified that he was aware that information

transmitted over the radio would end up in police reports. Special Investigator

Robert DeSimone of the Cuyahoga County Prosecutor’s Office (“DeSimone”)

testified similarly, noting that the information conveyed over the radio “trickled

down to where it goes into official police reports, government documents.”

The fact that Holmes did not personally author the police report or

make the radio call does not shield him from a tampering-with-records conviction.

Testimony was presented demonstrating that Holmes was aware that the

information he instructed Homan to transmit over the radio would be heard by

multiple people and eventually make its way into official police reports. A

reasonable jury could determine that Holmes knowingly intended to falsify these

records, notwithstanding the fact that he may not have personally authored the

report or transmitted the radio call he instructed Homan to make. As a result, the

evidence presented at trial was sufficient to support Holmes’s conviction for

tampering with records. b. Telecommunications Fraud

Holmes was also convicted of telecommunications fraud, in violation

of R.C. 2913.05(A). R.C. 2913.05(A) provides:

No person, having devised a scheme to defraud, shall knowingly disseminate, transmit, or cause to be disseminated or transmitted by means of a wire, radio, satellite, telecommunication, telecommunications device, telecommunications service, or voice over internet protocol service any writing, data, sign, signal, picture, sound, or image with purpose to execute or otherwise further the scheme to defraud.

Holmes once again argues that the evidence was insufficient to

demonstrate that he intended to defraud anyone. As discussed above, and

applicable here, a reasonable jury could determine that Holmes instructed Homan

to issue an incorrect or false statement over the radio to cover up his own violation

of East Cleveland Police policies.

Holmes also argues that he did not tell Homan to radio that Allen

“brake checked” them. Rather, Holmes noted that Homan added the “brake

checked” language himself. Therefore, Holmes contends that “[a]ny fraudulent

element to the broadcast was added by Homan and not as a result of a command by

[Holmes] to broadcast a fraud.”

While the fraudulent transmission was not word-for-word identical

to the false statement Holmes instructed Homan to make, Homan did state that

“vehicle just brake-checked us striking the front of 3134” per Holmes’s instruction.

From the evidence presented, a reasonable jury could determine that a fraudulent statement was transmitted over the radio at the behest of Holmes. And that Homan

did broadcast a false statement at Holmes’s request.

As discussed above, a reasonable jury could determine that Holmes’s

instruction to Homan to “tell them they struck us” was made with the purpose to

defraud. Homan’s body camera demonstrates that it was not until Holmes

instructed Homan to radio the false statement that Homan did so. The fact that the

fraudulent statement was not in the exact form Holmes requested does not preclude

a reasonable factfinder from determining that Holmes had caused a false statement

to be transmitted over the radio “with purpose to execute or otherwise further the

scheme to defraud.”

Next, Holmes claims that to support a conviction for

telecommunications fraud the evidence must demonstrate that Holmes intended to

defraud Allen of something of value. He is incorrect. The plain language of

R.C. 2913.05, telecommunications fraud, does not require the victim to be deprived

of something of value to support a conviction for telecommunications fraud. Value

is not an element of the offense. Rather, “value of the benefit obtained by the

offender or of detriment to the victim of the fraud” is only necessary with respect to

enhancing the felony of the offense from a felony of the fifth degree to either a felony

of the first, second, third, or fourth degree. R.C. 2913.05(E)(1). Since Holmes was

charged and convicted of telecommunications fraud, a felony of the fifth degree, the

State was not required to prove the value of a benefit or a detriment to the victim. Finally, Holmes argues that he was exempt from conviction under the

telecommunications statute pursuant to an amendment to the statute on March 2,

2022. This is not a sufficiency argument, so we decline to address it here. Since

Holmes raises this issue in assignment of error No. 7, we will address this claim

below.

c. Interfering With Civil Rights and Dereliction of Duty

Holmes was also convicted of interfering with civil rights, in violation

of R.C. 2921.45(A), and dereliction of duty, in violation of R.C. 2921.44(B).

Interfering with civil rights, R.C. 2921.45(A), provides:

No public servant, under color of the public servant’s office, employment, or authority, shall knowingly deprive, or conspire or attempt to deprive any person of a constitutional or statutory right.

Dereliction of duty, in violation of R.C. 2921.44(B), provides:

No law enforcement, ministerial, or judicial officer shall negligently fail to perform a lawful duty in a criminal case or proceeding.

Holmes alleges that the evidence was insufficient to support a

conviction for interfering with civil rights and dereliction of duty because the

testimony of the State’s main witness, Allen, “was fraught with credibility issues[.]”

However, “the credibility of witnesses is a matter primarily for the trier of fact and

is not to be considered in a sufficiency argument as credibility goes to the weight of

the evidence.” State v. Erker, 2019-Ohio-3185, ¶ 83 (8th Dist.). As a result, whether

Allen’s testimony was credible “has no bearing on our sufficiency analysis.” Id. As a result, viewing the evidence in the light most favorable to the

State, we find that Holmes’s convictions for tampering with records,

telecommunications fraud, interfering with civil rights, and dereliction of duty are

supported by sufficient evidence. Accordingly, Holmes’s first assignment of error is

overruled.

B. Second Assigned Error for Review – Manifest Weight

In his second assigned error for review, Holmes alleges that his

convictions for tampering with records, telecommunications fraud, interfering with

civil rights, and dereliction of duty are against the manifest weight of the evidence.

After a thorough review of the record, we determine that Holmes’s convictions are

not against the manifest weight of the evidence.

1. Standard of Review

In contrast to a sufficiency challenge, a challenge with respect to the

“weight of the evidence concerns the inclination of the greater amount of credible

evidence, offered in a trial, to support one side of the issue rather than the other. . .

. Weight is not a question of mathematics, but depends on its effect in inducing

belief.” (Cleaned up.) State v. Hughes-Davis, 2025-Ohio-3151, ¶ 24 (8th Dist.). The

Ohio Supreme Court has stated that when conducting a manifest-weight review, the

reviewing court “must weigh the evidence and all reasonable inferences, consider

the credibility of the witnesses, and determine whether, in resolving conflicts in the

evidence, the finder of fact clearly lost its way and created such a manifest

miscarriage of justice that the judgment must be reversed and a new trial ordered.” In re Z.C., 2023-Ohio-4703, ¶ 14, citing Eastley v. Volkman, 2012-Ohio-2179, ¶ 20.

As such, a manifest-weight-of-the-evidence challenge will be sustained “‘“only in the

exceptional case in which the evidence weighs heavily against the conviction.’”’”

State v. Dodson, 2025-Ohio-1733, ¶ 12 (8th Dist.), quoting Thompkins, 78 Ohio

St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).

Holmes alleges that his “convictions rested almost entirely on the

testimony of [Allen]” and that “the record demonstrates [Allen] was suffering from

multiple, severe, and untreated psychiatric disorders at the time of the incident.”

Holmes alleges that when Allen’s testimony is weighed against Holmes’s own

testimony, “it is clear that the jury lost its way.”

To begin, it cannot be said that Holmes’s convictions rested almost

entirely on Allen’s testimony. Homan’s body camera was introduced at trial,

documenting the moments leading up to the collision, as well as Holmes’s

instruction to Homan. As discussed above, Holmes can be heard saying something

to the effect of, “he ain’t losing us.” Holmes’s vehicle accelerated, ran a red light, and

was heard colliding into Allen’s vehicle. A few moments after the collision, Holmes

is heard instructing Homan to “tell them they struck our vehicle.” The State also

introduced an interview Holmes did with investigators wherein Holmes admitted

that he struck Allen’s vehicle.

With respect to Allen’s credibility, when conducting a review under a

manifest-weight challenge, we are mindful of the presumption in favor of the finder of fact and, “‘[i]f 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.’”

Parma Hts. v. Brett, 2025-Ohio-4, ¶ 21 (8th Dist.), quoting Z.C., 2023-Ohio-4703,

at ¶ 14. The underlying rationale of giving deference to the findings of the finder of

fact is that “the finder of fact is in the ‘best position to view the witnesses and observe

their demeanor, gestures, and voice inflections that are critical observations in

determining the credibility of a witness and his or her testimony.’” State v. Jones,

2025-Ohio-2866, ¶ 47 (8th Dist.), quoting State v. Sheline, 2019-Ohio-528, ¶ 100

(8th Dist.).

Here, the jury was made aware of Allen’s mental-health issues at trial.

The State questioned Allen concerning his mental-health diagnoses. Allen testified

that he had been diagnosed with schizophrenia and bipolar disorder and that he

took numerous medications to treat his mental-health issues. He also testified that

he was not on these medications at the time of the incident. Holmes’s attorney

cross-examined Allen concerning his mental-health issues.

Having been able to view the testimony of Allen and Holmes, as well

as Homan’s body-camera footage leading up the collision, the jury was in the best

position to weigh the competing credibility determinations between Allen’s and

Holmes’s testimony. As a result, we cannot say that Holmes’s convictions were

against the manifest weight of the evidence presented at trial.

Accordingly, Holmes’s second assignment of error is overruled. C. Third Assigned Error for Review — Verdict Form for Tampering With Records

In his third assigned error for review, Holmes argues that the trial

court erred in convicting him of a third-degree felony for tampering with records

pursuant to R.C. 2913.42(A) because the jury verdict forms only supported a

conviction for a misdemeanor of the first degree. As a result, Holmes contends that

his tampering-with-records conviction must be reduced to a misdemeanor of the

first degree. He is incorrect.

A violation of tampering with records under R.C. 2913.42(A) is

generally a misdemeanor of the first degree. R.C. 2913.42(B)(1)(2)(a) and

2913.42(B)(3)(a). But if the “writing, data, computer software, or record is kept by

or belongs to a local, state, or federal governmental entity, [the offense is] a felony

of the third degree.” R.C. 2913.42(B)(4).

Here, with respect to the tampering-with-records offense, the verdict

form, as relayed by the trial court to the jury, provided:

We, the jury in this case, being duly impaneled and sworn, do find the defendant, Anthony Holmes [_________] of tampering with records, in violation of 2913.42(A)(1) of the Ohio Revised Code, as charged in count 13.[3]

Holmes contends that the verdict forms failed to include “either the

degree of the offense or the enhancing element” and therefore his conviction for

3 The counts were renumbered prior to trial. tampering with records should be reduced to the least severe degree of the offense,

a misdemeanor of the first degree.

1. Applicable Law

R.C. 2945.75 provides, in relevant part:

(A) When the presence of one or more additional elements makes an offense one of more serious degree:

...

(2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.

The verdict form does not state the degree of the tampering-with-

records offense of which Holmes was found guilty. Nor does it provide the

additional enhancing factor for which would support the enhancement.

Nonetheless, the Ohio Supreme Court has recently held “that the

requirement in R.C. 2945.75(A)(2) that a guilty verdict state either the degree of the

offense of which the offender is found guilty or additional element or elements is

satisfied by a verdict form that cites the statutory section or sections mandating that

the defendant be convicted of a higher-level offense.” State v. Mays, 2024-Ohio-

4616, ¶ 17. In Mays, the defendant was convicted of violating a protection order in

violation of R.C. 2919.27(A) and (B), a fifth-degree felony. Id. at ¶ 2. A conviction

for violating a protection order is generally a misdemeanor of the first degree.

R.C. 2919.27(B)(2). However, the degree of the offense for violating a protection order may be enhanced to a felony of the fifth-degree if certain conditions are met.

R.C. 2919.27(B)(3). The court in Mays held that “[b]ecause the verdict form . . .

cited R.C. 2919.27(B)(3), which specifies that Mays’s offense was a felony of the fifth

degree, we conclude that the verdict form complied with R.C. 2945.75(A)(2).” Mays

at ¶ 17.

In this case, the statutory provision that enhances a tampering-with-

records charge to a felony of the third degree is R.C. 2913.42(B)(4). The verdict form

does not cite R.C. 2913.42(B)(4). Rather, the verdict form cites R.C. 2913.42(A)(1),

which is the general subsection defining what constitutes a charge for tampering

with records. As such, there is nothing in the verdict form stating the degree of the

offense, the additional elements necessary to enhance the offense, or even a cite to

the statutory provision mandating that Holmes be convicted of the higher-level

offense. For these reasons, the verdict form did not comply with R.C. 2945.75(A)(2).

But this does not conclude our analysis.

i. Plain Error

In Mays, the Ohio Supreme Court held that even if there is an error

in the verdict form, a defendant that failed to object to the verdict form at trial must

still demonstrate plain error. Mays at ¶ 139 (holding “that plain-error analysis does

apply when a defendant fails to raise an objection to a verdict form’s alleged

noncompliance with R.C. 2945.75(A)(2)”), citing State v. Eafford, 2012-Ohio-2224,

¶ 11 - 12. Pursuant to Crim.R. 52(B), plain errors are any “errors or defects

affecting substantial rights [and] may be noticed although they were not brought to

the attention of the court.” “Notice of plain error under Crim.R. 52(B) 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 (1978), paragraph

three of the syllabus. The party raising plain error must demonstrate “that there was

an error, that the error was plain or obvious, that but for the error the outcome of

the proceeding would have been otherwise, and that reversal must be necessary to

correct a manifest miscarriage of justice.” State v. Buttery, 2020-Ohio-2998, ¶ 7,

citing State v. Quarterman, 2014-Ohio-4034, ¶ 16.

Here, Holmes has failed to demonstrate that but for the faulty verdict

form, the outcome of the trial would have been different. It was uncontested that

the police reports or the radio broadcast that were the subject of Holmes’s

tampering-with-records conviction were “kept by or belong[] to a local, state, or

federal governmental entity[.]” He has failed to direct us to anything in the record

that would demonstrate that had the verdict form strictly complied with

R.C. 2945.75(A)(2), the result would have been any different. As a result, Holmes

has failed to demonstrate that the verdict form’s deviation from R.C. 2945.75(A)(2)

affected his substantial rights, or that the outcome would have been different.

Accordingly, we overrule Holmes’s third assignment of error. D. Fourth Assigned Error for Review — Motion to Compel Medical Records of Allen

In his fourth assigned error for review, Holmes contends that the trial

court erred when it denied his motion to compel Allen’s mental-health records

without first holding an incamera inspection. Upon a thorough review of the record

and applicable law, we disagree.

We generally review a trial court’s order concerning discovery issues

for an abuse of discretion. State v. Counts, 2022-Ohio-3666, ¶ 16 (8th Dist.), citing

State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children & Family Servs., 2006-

Ohio-4574, ¶ 9. “However, a trial court’s interpretation of law governing privileged

matters is a question of law that we review de novo[.]” State v. Kelley, 2024-Ohio-

157, ¶ 31 (8th Dist.), citing Ward v. Summa Health Sys., 2010-Ohio-6275, ¶ 13. As

such, our standard of review “depends on whether the asserted privilege presents a

question of law or a question of fact.” Id., citing Randall v. Cantwell Mach. Co.,

2013-Ohio-2744, ¶ 9. When interpreting statutory language to determine whether

the sought after information is privileged, we apply a de novo standard of review.

Id.

Here, Holmes does not dispute that the mental-health records of

Allen are privileged records. As such, our review involves factual questions and we

operate under an abuse-of-discretion standard. See id. at ¶ 32. “The term ‘abuse of

discretion’ means a ruling that is unreasonable, arbitrary, or unconscionable.” State v. McAlpin, 2026-Ohio-148, ¶ 14. However, “[c]ourts do not have discretion to

erroneously apply the law.” Shiftmed, LLC v. Westchester Parkway Consulting,

LLC, 2025-Ohio-1554, ¶ 18 (8th Dist.), citing Johnson v. Abdullah, 2021-Ohio-3304,

¶ 39. “We must be mindful that when applying the abuse-of-discretion standard ‘we

should not substitute our judgement for that of the trial court.’” T.C. v. R.B.C., 2025-

Ohio-1544, ¶ 10 (8th Dist.), quoting Mills v. Mills, 2025-Ohio-452, ¶ 28 (8th Dist.).

Holmes made an oral motion to the trial court to obtain and review a

health report of Allen that had been prepared by the mental-health court in one of

Allen’s criminal cases. Holmes’s attorney claimed that that the records were

necessary to determine whether “the mental illnesses that he’s currently suffering

from in any way might affect his ability to remember something from three years

ago, or more, in relating them to the jury, I think that’s fair impeachment grounds

for consideration.” The State deferred to the trial court as to Holmes’s request.

In a criminal case, discovery is governed by Crim.R. 16, which

provides in relevant part, that the State

provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule[.]

Crim.R. 16(B). Crim.R. 16(J)(3) provides, in relevant part, that the following

materials are not subject to disclosure: “[m]aterials that by law are subject to

privilege, or confidentiality, or are otherwise prohibited from disclosure.” As

discussed above, Holmes does not dispute that Allen’s mental-health records are

privileged. Therefore, they were not subject to disclosure.

Nonetheless, under certain circumstances, “a defendant is entitled to

have confidential records reviewed in camera by the trial court.” Kelley, 2024-Ohio-

157, at ¶ 43 (8th Dist.), citing Pennsylvania v. Ritchie, 480 U.S. 39, 58 (1987).

However, “a defendant may not require the trial court to search through confidential

records ‘without first establishing a basis for his [or her] claim that it contains

material evidence.’” Id., quoting Ritchie at 58, fn. 15. Evidence is considered

material “if there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different.” State v.

Bagley, 473 U.S. 667, 682 (1985). “The mere possibility that the evidence might

have helped the defense does not establish ‘materiality.’” State v. Badran, 2008-

Ohio-6649, ¶ 17 (8th Dist.), citing Wagster v. Overberg, 560 F.2d 735, 741 (6th Cir.

1977).

Here, the basis for Holmes’s motion to compel was that it was

necessary for him to determine whether there was anything additional in the

requested mental-health report for impeachment purposes. Holmes was aware of

Allen’s mental-health issues prior to trial. And at trial, Allen testified that he had

been diagnosed with schizophrenia and bipolar disorder and that he took numerous medications to treat his mental-health issues. Allen also testified that he was not on

these medications at the time of the incident. And Holmes’s attorney had an

opportunity to fully cross-examine Allen at trial concerning his mental-health

issues. And finally, during close, Holmes’s attorney stated:

It’s a difficult situation, you know, Da’Shawn Allen suffered greatly from mental health issues. I don't think that has a lot to do with this case. I really don’t. But you will see in the medical records that he was paranoid. You will see that there was a schizophrenia active at the time he wasn’t on his meds. And he absolutely admitted he wasn’t on his meds and he talked about how he was without it, but that does affect how you view things and how you think what the police officers are doing. If you're paranoid and your car strikes, they are trying to hurt me. But he didn’t say that. He said, they stopped me from stopping. That’s all it was until later.

(Emphasis added.)

Here, Holmes failed to demonstrate that the Allen’s mental-health

report from the mental-health court contained any evidence that would have aided

or furthered his impeachment efforts to the extent that it would have affected the

trial. As such, Holmes has failed to make a sufficient showing that there was any

material or exculpatory information in the mental-health record of Allen that he was

not already aware of. As such, the trial court did not abuse its discretion in denying

Holmes’s motion to compel without first holding an incamera inspection.

Accordingly, Holmes’s fourth assignment of error is overruled. E. Plain Error and Ineffective Assistance of Counsel Claims

In his fifth, sixth, seventh, eighth, and ninth assigned errors for

review, Holmes alleges that he was afforded ineffective assistance of counsel and

that the trial court committed plain error on several separate issues.

1. Plain-Error Review

As discussed above, pursuant to Crim.R. 52(B), plain errors are any

“errors or defects affecting substantial rights [and] may be noticed although they

were not brought to the attention of the court. “Notice of plain

error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Long, 53 Ohio

St.2d 91 (1978), at paragraph three of the syllabus. The party raising plain error

must demonstrate “that there was an error, that the error was plain or obvious, that

but for the error the outcome of the proceeding would have been otherwise, and that

reversal must be necessary to correct a manifest miscarriage of justice.” Buttery,

2020-Ohio-2998, at ¶ 7, citing Quarterman, 2014-Ohio-4034, at ¶ 16.

“Furthermore, ‘“where the failure to object does not constitute plain

error, the issue cannot be reversed by claiming ineffective assistance of counsel.”’”

State v. Young, 2020-Ohio-462, ¶ 103 (10th Dist.), quoting State v. Roy, 2014-Ohio-

4587, ¶ 20 (10th Dist.), quoting State v. Carson, 2006-Ohio-2440, ¶ 51 (10th Dist.).

See also State v. Rogers, 2015-Ohio-2459, ¶ 22 (holding that with respect to a plain

error analysis, “[t]he 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”), citing United States v. Dominguez

Benitez, 542 U.S. 74, 81-83 (2004).

2. Ineffective Assistance of Counsel Review

“In order to substantiate a claim for ineffective assistance of counsel,

a defendant must satisfy a two-prong test.” State v. Jefferson, 2025-Ohio-2008,

¶ 14 (8th Dist.). “First, there must be a determination as to whether there has been

a substantial violation of any of defense counsel’s essential duties to his client.”

State v. Bradley, 42 Ohio St.3d 136, 141 (1989). To establish this first prong, a

‘“defendant must show that counsel’s representation fell below an objective

standard of reasonableness.’” Id. at 142, quoting Strickland v. Washington, 466

U.S. 668, 687-688 (1984). “‘[B]ecause of the difficulties inherent in making [such

an] evaluation, a court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance . . . .’” Bradley at

142, quoting Strickland at 689.

“‘[Second], and analytically separate from the question of whether the

defendant’s Sixth Amendment rights were violated, there must be a determination

as to whether the defense was prejudiced by counsel’s ineffectiveness.’” Bradley at

141-142, quoting State v. Lytle, 48 Ohio St.2d 391, 396-397 (1976). To establish that

one has been “prejudiced by counsel’s deficient performance, the defendant must

prove that there exists a reasonable probability that, were it not for counsel’s errors,

the result of the trial would be different.” Id. at 143. F. Fifth Assigned Error for Review – Joinder

In his fifth assigned error for review, Holmes argues that the trial

court erred in its decision to join Holmes’s charges for trial with the charges of his

codefendant McInnes and that his attorney was ineffective for failing to move the

court to sever them. After a thorough review of the record, we find that the trial

court did not err in joining the offenses of Holmes and McInnes and trying them

together.

Generally, “we review the trial court's decision on joinder for an abuse

of discretion.” State v. Lee, 2017-Ohio-1449, ¶ 15 (8th Dist.), citing State v. Dean,

2015-Ohio-4347, ¶ 58. In this case, however, Holmes did not seek severance

pursuant to Crim.R. 14 and has waived all but plain error. State v. Miller, 2023-

Ohio-1141, ¶ 83 (8th Dist.).

2. Applicable Law

Crim.R. 8(A) governs joinder of offenses in a single indictment. It

provides that two or more offenses may be joined in a single indictment where they

“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 a part of a course of criminal conduct.”

Crim.R. 8(A). “Joinder of defendants and the avoidance of multiple trials is favored

in the law for many reasons. Joinder conserves judicial and prosecutorial time,

lessens the not inconsiderable expenses of multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of incongruous results in successive trials

before different juries.” State v. Thomas, 61 Ohio St.2d 223, 225 (1980). As such,

“joinder is the rule rather than the exception.” State v. Hudson, 2013-Ohio-1992,

¶ 10 (8th Dist.). “Further, joinder is to be ‘liberally permitted.’” State v. Wardlaw,

2025-Ohio-2221, ¶ 41 (8th Dist.), quoting State v. Schaim, 65 Ohio St.3d 51, 58

(1992).

In turn, Crim.R. 14 provides a defendant relief from prejudicial

joinder and provides, in relevant 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) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial.

“‘While there is always the possibility of prejudice from joinder of

offenses, once the state has concluded its case, the defendant bears the burden of

demonstrating actual prejudice from the joinder.’” Miller, 2023-Ohio-1141, at ¶ 79

(8th Dist.), quoting State v. Cisternino, 1994 Ohio App. LEXIS 4856 (8th Dist. Oct.

27, 1994). “The defendant ‘must show “compelling, specific, and actual prejudice

from the court’s refusal to grant the motion to sever.”’” Wardlaw at ¶ 45, quoting

State v. Hand, 2006-Ohio-18, ¶ 166, quoting State v. Torres, 66 Ohio St.2d 340, 343

(1981). The State may refute a defendant’s claim of prejudice in one of two

ways: “(1) a showing that the evidence of each crime is simple and direct (the

‘joinder test’), or (2) evidence of the other crimes would be admissible even if the

counts were severed (the ‘other acts’ test).” Miller at ¶ 80, citing State v. Lott, 51

Ohio St.3d 160, 163 (1990). “The ‘joinder test’ is satisfied when the evidence

presented at trial is ‘simple and direct.’” Wardlaw 2025-Ohio-2221, at ¶ 46 (8th

Dist.), citing State v. Belle, 2019-Ohio-787, ¶ 24-25 (8th Dist.). “‘Simple and direct’

evidence means the evidence of each crime is ‘so clearly separate and distinct as to

prevent the jury from considering evidence of [one crime] as corroborative as the

other.’” Miller at ¶ 81, quoting Belle at ¶ 25.

The purpose of the “joinder test” is to “prevent the jury from

improperly considering evidence of various crimes as corroborative of each other.”

Miller at ¶ 82, citing State v. Echols, 128 Ohio App.3d 677, 694 (1st Dist. 1998).

Thus, “a trier of fact is believed capable of segregating the proof of multiple charges

when the evidence to each of the charges is uncomplicated.” State v. Lunder, 2014-

Ohio-5341, ¶ 33 (8th Dist.), citing Torres at 343-344. As a result, “‘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.’” Wardlaw at ¶ 82, quoting State v. Echols, 2015-Ohio-5138,

¶ 16 (8th Dist.).

The “other acts” test, on the other hand, is satisfied where the State

can show that the evidence of the other offenses would have been admissible as “other acts” under Evid.R. 404(B), if the offenses had been tried separately.

Wardlaw at ¶ 48, citing Lott at 163. However, when the evidence is “simple and

direct” under the joinder test, “an accused is not prejudiced by joinder regardless of

the nonadmissibility of evidence of the crimes as other acts under Evid.R. 404(B).”

Miller, 2023-Ohio-1141, at ¶ 20 (8th Dist.). “Consequently, ‘[i]f the state can meet

the [requirements of] the joinder test, it need not meet the requirements of the

stricter “other acts” test.’” Wardlaw at ¶ 48, quoting State v. Franklin, 62 Ohio

St.3d 118, 122 (1991).

3. Analysis

After a thorough review of the record, we determine that the evidence

supporting Holmes’s convictions was simple and direct. There is nothing to suggest

that the jury was confused by the evidence or influenced by the evidence introduced

with respect to the crimes of his codefendant McInnes.

Holmes contends that the evidence introduced in support of

McInnes’s crimes was irrelevant to the charges against Holmes and that “[i]ts only

purpose was to paint a broad picture of misconduct within the East Cleveland Police

Department, creating a classic case of guilty by association.” However, he does not

direct this court to any particular point in the record to support this claim. Holmes’s

“conclusory and speculative arguments are not sufficient to demonstrate prejudice

by joinder.” Wardlaw, 2025-Ohio-2221, at ¶ 49 (8th Dist.), citing State v. Porcher,

2011-Ohio-5976, ¶ 2 (2d Dist.) (conclusory allegations of prejudice insufficient);

State v. Gravely, 2010-Ohio-3379, ¶ 36 (10th Dist.) (speculative arguments of prejudice insufficient); State v. Torres, 66 Ohio St.2d at 344 (speculative arguments

of prejudice insufficient).

Even if Holmes had demonstrated actual prejudice because of

joinder, the evidence supporting his convictions was simple and direct. Holmes’s

codefendant’s charges concerned three separate assaults that occurred on

February 25, 2020; February 14, 2022; and an assault on Allen that occurred upon

Allen’s arrest on October 3, 2021. Holmes’s convictions involved actions that

occurred prior to Allen’s arrest on October 3, 2021; specifically, his collision with

Allen’s vehicle and Holmes’s instruction to Homan to “tell them they struck our

vehicle.” The evidence presented with respect to McInnes’s charges concerning the

February 25, 2020 and February 14, 2022 incidents did not include Holmes nor did

the evidence indicate that he was involved with the subsequent arrest and assault of

Allen upon Allen’s arrest on October 3, 2021.

Throughout the presentation of its case, the State was careful to

delineate Holmes’s involvement with the pursuit of Allen and the assault that

occurred upon Allen’s arrest. For example, when questioning Investigator

DeSimone, the jury heard the following exchange with the prosecutor:

Prosecutor: And for clarity sake, is it safe to say that the conduct, words, and actions of Anthony Holmes were the subject of your investigation that happened before the ultimate crash, whereas the conduct of Ian McInnes was subject to the investigation for what happened after the crash and arrest, physical arrest of Da’Shawn Allen?

DeSimone: That’s correct, yes. Further, there is nothing to indicate that the jury was confused or

unduly influenced by the evidence presented concerning the assaults that McInnes

was charged with that occurred on different dates and the assault of Allen that

occurred after the events that support Holmes’s convictions in this case. To further

undercut this point, the State notably points out in its brief that Holmes “was found

not guilty of all uses of force, while McInnes was found guilty in three of the four

incidents.” Such a verdict demonstrates “that the jury was able to separate the

evidence and consider it as to each count for each defendant individually.”

Here, the evidence was simple and direct, and Holmes failed to

demonstrate that the jury was unable to separate the evidence presented in support

of his convictions from the evidence presented with respect to his codefendant

McInnes’s charges. The trial court did not err in joining these offenses at trial, and

accordingly, Holmes’s attorney was not ineffective for failing to move to sever the

charges.

Holmes’s fifth assignment of error is overruled.

G. Sixth Assigned Error for Review — “Data” Jury Instruction

In his sixth assigned error for review, Holmes argues that the trial

court gave the jury an improper jury instruction with respect to what constitutes

“data.” He contends that had the jury been given the proper instruction for what

constitutes “data” for a tampering-with-records offense he would not have been

convicted of tampering with records. We disagree. 1. Standard of Review and Applicable Law

Generally, “[t]rial courts have broad discretion in determining

whether the evidence presented at trial was sufficient to warrant a particular jury

instruction.” State v. Echevarria, 2018-Ohio-1193, ¶ 27 (8th Dist.), citing State v.

Williams, 2015-Ohio-172, ¶ 35 (8th Dist.). However, Holmes did not object to the

trial court’s jury instructions at trial. “‘Pursuant to Crim.R. 30(A), the failure to

object to a jury instruction in a timely manner generally constitutes a waiver of any

claimed error relative to the instructions unless the error amounts to plain error.’”

Cleveland v. King, 2025-Ohio-3067, ¶ 30 (8th Dist.), quoting State v. Jallah, 2015-

Ohio-1950, ¶ 88 (8th Dist.). Where a defendant fails to object to improper jury

instructions at trial, “‘the reviewing court must examine the record in order to

determine whether that failure may have resulted in a manifest miscarriage of

justice.’” Id. at ¶ 34, quoting State v. Adams, 62 Ohio St.2d 151 (1980), paragraph

three of the syllabus.

Nonetheless, a trial court must “‘fully and completely give the jury all

instructions which are relevant and necessary for the jury to weigh the evidence and

discharge its duty as the fact finder.’” State v. White, 2015-Ohio-492, ¶ 46, quoting

State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus. Holmes

alleges that the jury instructions with respect to the definition of “data” in support

of a conviction of tampering with records is incorrect. As such, Holmes presents us

with a question of law that we review de novo. State v. Mincey, 2018-Ohio-662, ¶ 27

(1st Dist.) (noting that an appellant’s claim that the trial court left out an element of complicity in its charge to the jury is an issue that is to be reviewed de novo); see

also Echevarria at ¶ 27 (holding that “[w]hether jury instructions correctly state the

law is a legal issue that an appellate court reviews de novo”).

i. “Data” Instruction

The trial court instructed the jury that before they could find Holmes

guilty of tampering with records they must find

beyond a reasonable doubt that on or about the 3rd day of October, 2021, and in Cuyahoga County, Ohio, the Defendant Anthony Holmes did, knowing he had no privilege to do so and with purpose to defraud or knowing that he was facilitating a fraud on Da'Shawn Allen, date of birth, 5/31/2004, falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data, or record, to-wit: radio dispatch and/or East Cleveland police report, and the writing, data, computer software, or record was kept by or belonged to a local state or federal governmental entity.

The trial court further instructed the jury on the meaning of data with

respect to a tampering-with-records charge:

Data means a representation of information, knowledge, facts, concepts, or instructions that are being or have been prepared in a formalized manner and that are intended for use in a computer, computer system, or computer network. Data additionally includes any other representation of information, knowledge, facts, concepts, or instructions that are being or have been prepared in a formalized manner.

It is the highlighted portion of the instruction that Holmes now takes

issue. R.C. 2913.01(R) sets forth the general definition of “data” under the

criminal theft and fraud statutes. It provides that “data means a representation of

information, knowledge, facts, concepts, or instructions that are being or have been

prepared in a formalized manner and that are intended for use in a computer,

computer system, or computer network.” The statute further notes that “[f]or the

purposes of section 2913.47 of the Revised Code [insurance fraud], ‘data’ has the

additional meaning set forth in division (A) of that section.” R.C. 2913.47(A)(1)

provides that “‘[d]ata’ has the same meaning as in section 2913.01 of the Revised

Code and additionally includes any other representation of information,

knowledge, facts, concepts, or instructions that are being or have been prepared in

a formalized manner.” (Emphasis added.)

The trial court’s jury instructions included this additional meaning

for “data” as set forth in the insurance fraud statute. The question thus becomes

whether the broadened definition of “data” for insurance fraud is applicable for a

tampering-with-records conviction as well. It is not.

We presume that “the General Assembly acts intentionally and

purposely when it includes particular language in one section of a statute but omits

it in another.” In re G.M., 2011-Ohio-4090, ¶ 16 (8th Dist.), citing State v.

Vanderbilt, 37 Ohio St. 590, 609 (1882). The General Assembly could have included

this broadened definition of “data” in the general fraud definition that is applicable

to a tampering-with-records convictions. It did not. As such, we will not read

language into the definition of “data” for fraud that is not there. The General Assembly did not intend this broadened definition of

“data” found in the insurance fraud statute to apply to an offense of tampering with

records. As such, the trial court erred in instructing the jury on this broadened

definition of data for a tampering-with-records offense.

ii. Prejudice

We may not “‘“reverse a conviction in a criminal case due to jury

instructions unless it is clear that the jury instructions constituted prejudicial

error.”’” Echevarria, 2018-Ohio-1193, at ¶ 29 (8th Dist.), quoting State v. Shepherd,

2016-Ohio-931, ¶ 25 (8th Dist.), quoting State v. McKibbon, 2002-Ohio-2041, ¶ 27

(1st Dist.). As such, Holmes must also demonstrate that he was prejudiced by the

improper instruction. He has not done so.

In reviewing the court’s instructions, “we may not judge a single

instruction in isolation, but rather in the context of the overall charge.” State v.

Copeland, 2016-Ohio-1537, ¶ 28 (8th Dist.), citing State v. Madrigal, 87 Ohio St.3d

378, 396 (2000). “Thus, we must consider the jury instructions ‘as a whole’ and

then determine whether the jury charge probably misled the jury in a manner

materially affecting the complaining party’s substantial rights.” Id.

Holmes claims that by expanding the definition of data, the trial court

included “sound,” i.e. radio broadcasts, into the definition of “data.” The State

responds, arguing that the additional instruction is “largely duplicative,” in that it

just removed “the requirement of a computer, computer system, or computer

network.” And that the outcome of the trial would have been the same because the “radio dispatch would meet the first portion of the definition of either writing, data,

or record.”

We agree with the State. It is unclear how the additional language

transforms the definition of “data” to include “sound.” Or why “sound” would not

have been included in the general definition of data that defined data as being a

“representation of information, knowledge, facts, concepts, or instructions that are

being or have been prepared in a formalized manner and that are intended for use

in a computer, computer system, or computer network.” Nor do we agree that the

removal of the computer, computer system, or computer network language

transforms “data” to now include “sound.”

Further, an intent to falsify “data” is not the only thing that could

support a tampering-with-records conviction. Rather, the jury was instructed that

to be convicted of tampering with records, the jury would have to determine that

Holmes did “falsify, destroy, remove, conceal, alter, deface, or mutilate any writing,

computer software, data, or record.” (Emphasis added.) While the jury could have

determined that a “radio dispatch” fell under the definition of data, the jury also

could have determined that it was a record as set forth in the indictment and in the

instructions provided by the court.

For these reasons, we do not find that but for the trial court’s

improper jury instruction, the outcome of the trial would have been any different.

Therefore, we do not find that the court committed plain error. For the same reason,

we do not find that Holmes’s right to effective assistance of counsel was violated. Accordingly, Holmes’s sixth assignment of error is overruled.

H. Seventh Assigned Error for Review – Telecommunications Fraud Exception Jury Instruction

In his seventh assignment of error, Holmes claims that his trial

counsel was ineffective and the trial court committed plain error for failing to

instruct the jury on a recent amendment to R.C. 2913.05 that Holmes alleges would

have precluded him from being convicted of telecommunications fraud.

A recent amendment to R.C. 2913.05, 2021 Ohio Am.S.B. No. 54,

effective March 2, 2022, was amended to include, in relevant part:

(C) Divisions (A) and (B) of this section [telecommunications fraud] do not apply to any of the following:

(2) Any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a state, a county, or a political subdivision of a state[.]

R.C. 2913.05(C)(2). The offense for which Holmes’s was convicted occurred on

October 3, 2021, prior to the effective date of the amendment.

Holmes argues that because he was not indicted and the trial did

not begin until after the effective date of the amendment, the exceptions set forth in

the amended statute apply to him and that his attorney should have requested, and

the trial court should have provided the jury with, a jury instruction to that effect.

The State argues that the statute is not retroactive and therefore inapplicable to

Holmes. 1. Retroactive v. Prospective Application of the Amendment

As an initial matter, we must discuss whether the exceptions set

forth in R.C. 2913.05(C), effective March 2, 2022, apply to the instant case. Whether

the trial court erred in failing to apply the amended version of a statute at the time

of trial is a legal issue we review de novo. See State v. Mallory, 2022-Ohio-3667,

¶ 90 (8th Dist.) (holding that “[w]hether the trial court erred in failing to apply the

amended version of [a statute] at the time of sentencing in this matter is a legal issue

we review de novo”), citing State v. Pitts, 2020-Ohio-5494, ¶ 9 (1st Dist.).

We begin with the presumption that a statute is “prospective in its

operation unless expressly made retrospective.” R.C. 1.48. It is well settled that

“when the General Assembly reenacts, amends, or repeals a criminal statute, the

substantive provisions of the former law apply to all pending prosecutions, but the

defendants receive the benefit of a reduced ‘penalty, forfeiture, or punishment’ in

the statute as amended, unless the General Assembly expresses another intent.”

State v. Solomon, 2012-Ohio-5755, ¶ 16 (1st Dist.), citing R.C. 1.58, and State v.

Rush, 83 Ohio St.3d 53 (1998). “A statute must clearly proclaim its own retroactivity

to overcome the presumption of prospective application.” State v. Consilio, 2007-

Ohio-4163, paragraph one of the syllabus. “Statutory text that merely supports an

inference of retroactivity is not sufficient: ‘Retroactivity is not to be inferred.’” State

v. Miree, 2024-Ohio-5714, ¶ 7, quoting Consilio at paragraphs one and two of the

syllabus. At the time the offense in this case took place, October 3, 2021,

R.C. 2913.05 had yet to be amended. The 2022 amendment added the exceptions

that Holmes contends apply to him, particularly the language indicating that

telecommunications fraud was inapplicable to “[a]ny lawfully authorized

investigative, protective, or intelligence activity of a law enforcement agency of the

United States, a state, a county, or a political subdivision of a state.”

R.C. 2913.05(C)(2).

We begin our analysis by looking at the plain language of the statute

to determine whether it provides any indication that the General Assembly

expressed an intent to make the 2022 amendment retroactive. “‘“The primary goal

of statutory construction is to ascertain and give effect to the legislature’s intent,” as

expressed in the plain meaning of the statutory language.’” State v. Sumlin, 2025-

Ohio-550, ¶ 19, quoting State v. Pountney, 2018-Ohio-22, ¶ 20, quoting State v.

Lowe, 2007-Ohio-606, ¶ 9. In doing so, the words and phrases of the statute must

“be read in context and construed according to the rules of grammar and common

usage.” R.C. 1.42. Thus, “our duty is ‘to give effect to the words used, not to delete

words used or to insert words not used.’” State v. Maxwell, 2002-Ohio-2121, ¶ 10,

quoting Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm., 20 Ohio St.2d

125, 127 (1969). “The general rule is that ‘“[i]f the meaning of the statute is

unambiguous and definite, it must be applied as written and no further

interpretation is necessary.”’” Sumlin at ¶ 19, quoting Diller v. Diller, 2023-Ohio- 1508, ¶ 16, quoting State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn.,

74 Ohio St.3d 543, 545 (1996).

Here, there is nothing in the plain language of the amendment

indicating that the General Assembly intended to make the amendment retroactive.

Rather, the amendment reads, in relevant part, that “Divisions (A) and (B) of this

section [telecommunications fraud] do not apply to . . . any lawfully authorized

investigative, protective, or intelligence activity of a law enforcement agency of the

United States, a state, a county, or a political subdivision of a state[.]” There is no

indication that the General Assembly intended the amendment to be applied

retroactively. As such, we must presume that the General Assembly intended the

amendment to operate prospectively.

Next, we recognize that even if the General Assembly did not intend

a statute to be retroactive, R.C. 1.58(B) provides that “[i]f the penalty, forfeiture, or

punishment for any offense is reduced by a reenactment or amendment of a statute,

the penalty, forfeiture, or punishment, if not already imposed, shall be imposed

according to the statute as amended.” “Thus, ‘if a statute is amended and becomes

effective while the defendant’s case is pending in the trial court, then its applicability

to the defendant’s case is guided by R.C. 1.58.’” Mallory, 2022-Ohio-3667, at ¶ 92

(8th Dist.), quoting State v. Stiltner, 2021-Ohio-959, ¶ 54 (4th Dist.). In short,

“[o]nly an amendment that reduces a ‘penalty, forfeiture, or punishment for any

offense’ applies to crimes committed before the effective date of the amendment and

tried afterwards.” State v. Miree, 2024-Ohio-5714, ¶ 11, citing R.C. 1.58. The terms “penalty, forfeiture, or punishment” have not been defined

by the General Assembly. In Mallory, this court defined the relevant terms:

Generally, the term “penalty” means “the punishment inflicted by a law for its violation. The term is most applied to a pecuniary punishment.” In re Lange’s Estate, 164 Ohio St. 500, 505, 132 N.E.2d 96 (1956). Black’s Law Dictionary indicates that the word, “penalty,” is “[a]n elastic term with many different shades of meaning,” but it typically “involves the idea of punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally confined to pecuniary punishment.” Black’s Law Dictionary 1133 (6th Ed. 1990); State v. Solomon, 2012-Ohio-5755, 983 N.E.2d 872, ¶ 38 (1st Dist.). “Forfeiture” is “[a] comprehensive term which means a divestiture of specific property without compensation,” and it includes the “[l]oss of some right or property as a penalty for some illegal act.” Black’s at 650; Solomon at ¶ 39; State v. Whitaker, 111 Ohio App.3d 608, 615, 676 N.E.2d 1189 (6th Dist.1996), quoting Webster's Third New International Dictionary (1986) 891, (defining “‘[f]orfeiture’ * * * as ‘the loss of property or money on account of one's breach of [a] * * * legal obligation’”). Finally, the term “punishment” means “[a]ny fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him * * *.” Black’s at 1234; Solomon at ¶ 40.

Id. at ¶ 94.

The 2022 amendment to R.C. 2013.05 does not (1) decrease a penalty

imposed for an offense; (2) involve forfeiture of property; or (3) decrease any fine,

penalty, or term of confinement. As such, it is not a “penalty, forfeiture, or

punishment” as contemplated by R.C. 1.58.

The General Assembly did not expressly indicate its intention to have

the 2022 amendment apply retroactively. Nor does the amendment decrease any

“penalty, forfeiture, or punishment.” For these reasons, the amendment is not

retroactive and the exceptions set forth in the current version of R.C. 2913.05(C) do not apply to Holmes since the offense for which he was convicted occurred well

before the amendment went into effect.

2. Plain Error and Ineffective Assistance of Counsel

Having determined that the 2022 amendment to R.C. 2913.05

making telecommunications fraud inapplicable to “any lawfully authorized

investigative, protective, or intelligence activity of a law enforcement agency of the

United States, a state, a county, or a political subdivision of a state” is not retroactive

and not applicable to Holmes, the court did not commit error by failing to instruct

the jury on this exception.

Furthermore, with respect to Holmes’s ineffective-assistance claim,

we recognize that “‘“the failure to do a futile act cannot be the basis for a claim of

ineffective assistance of counsel, nor could such a failure be prejudicial.”’” State v.

Thompson, 2024-Ohio-5910, ¶ 7 (8th Dist.), quoting State v. Nelson, 2017-Ohio-

5568, ¶ 79, quoting State v. Knox, 2013-Ohio-1662, ¶ 20 (8th Dist.), citing State v.

Ford, 2007-Ohio-5722, ¶ 9 (8th Dist.). As such, Holmes’s attorney was not

ineffective for failing to request a jury instruction based on the amended version of

R.C. 2913.05.

Accordingly, Holmes’s seventh assignment of error is overruled.

I. Eighth Assigned Error for Review — Jury Unanimity

In his eighth assigned error for review, Holmes claims that he was

deprived of a unanimous jury verdict since the tampering-with-records charge included two separate acts, either of which could have been the basis of his

conviction for tampering with records. We disagree.

A criminal defendant is entitled to a unanimous verdict. Ramos v.

Louisiana, 590 U.S. 83, 93 (2020) (“the Sixth Amendment’s unanimity requirement

applies to state and federal trials equally”); Crim.R. 31(A). However, “the law on

juror unanimity distinguishes between the elements of the crime and the means by

which a defendant commits an element.” State v. Gardner, 2008-Ohio-2787, ¶ 37.

In short, “[a]lthough Crim.R. 31(A) requires juror unanimity on each element of the

crime, jurors need not agree to a single way by which an element is satisfied.” Id. at

¶ 38, citing Richardson v. United States, 526 U.S. 813, 817 (1999) (recognizing that

a jury “need not always decide unanimously which of several possible sets of

underlying brute facts make up a particular element, say, which of several possible

means the defendant used to commit an element of the crime”). “In a

typical alternative means case, the jury must be unanimous as to the defendant’s

guilt of the crime charged, but need not be unanimous as to the means by which the

crime was committed.” State v. Crump, 2019-Ohio-2219, ¶ 32 (8th Dist.), citing

State v. Adams, 2015-Ohio-3954, ¶ 290. “Therefore, the critical inquiry is whether

the case involves ‘alternative means’ or ‘multiple acts.’” Id., citing Gardner at ¶ 48.

In State v. McKinney, 2019-Ohio-1118 (8th Dist.), this court

discussed the distinction as follows:

“In an ‘alternative means’ case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.” [Gardner] at ¶ 49.

However, in a “multiple acts” case, “several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the state elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.” [Gardner] at ¶ 50.

Id. at ¶ 33-34.

To determine whether a case involves “alternative means” or

“multiple acts,” we must look at the language of the indictment and determine

whether the single count in the indictment can be divided into two or more “distinct

conceptual groupings” or into a “single conceptual grouping of related facts.” Id. at

¶ 36. If the case falls into the latter, it is an “alternative means” case. If it falls into

the former, it is a multiple acts case requiring the jury to unanimously agree which

of the conceptual groupings unanimously agreed.

We find that this case is an “alternative means” case. The indictment

charged Holmes with tampering with records as follows:

[Holmes] did, knowing he had no privilege to do so, and with purpose to defraud or knowing he was facilitating a fraud on D.A. [Allen] 05/31/2004, falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer, computer software, data, or record, to wit: radio dispatch and/or East Cleveland Police Report, and the writing, data, computer software, or record was kept by or belonged to a local, state, or federal government entity.

The two records that Holmes was alleged to have tampered with were

the radio broadcast and/or the East Cleveland Police Report. Each are conceptually

similar in that both represent the alleged “writing, computer, computer software,

data, or record” that Holmes intended to falsify. They are not separate acts. In fact,

the offense stemmed from one single act of Holmes instructing Homan to “tell them

they struck our vehicle.” As a result, this is an “alternative means” case.

As discussed above, “‘[i]n reviewing an alternative means case, the

court must determine whether a rational trier of fact could have found each means

of committing the crime proved beyond a reasonable doubt.’” State v. McKinney,

2019-Ohio-1118, at ¶ 33 (8th Dist.), quoting State v. Gardner, 2008-Ohio-2787, at

¶ 49. As discussed in our analysis concerning Holmes’s first assignment of error,

the evidence was sufficient to support Holmes’s convictions for tampering with

records. The jury was presented with evidence concerning both the East Cleveland

Police reports and the broadcast made by Homan at the behest of Holmes. As such,

the evidence was sufficient that a reasonable finder of fact could have determined

that either the police report or the radio broadcast was the basis for the tampering-

with-records charge. For these reasons, Holmes was not deprived of a unanimous

jury verdict and we find no plain error. Further, with respect to Holmes’s ineffective-assistance claim, as

discussed above, “‘“the failure to do a futile act cannot be the basis for a claim of

ineffective assistance of counsel, nor could such a failure be prejudicial.”’”

Thompson, 2024-Ohio-5910, at ¶ 7 (8th Dist.), quoting Nelson, 2017-Ohio-5568, at

¶ 79, quoting Knox, 2013-Ohio-1662, at ¶ 20 (8th Dist.), citing Ford, 2007-Ohio-

5722, at ¶ 9 (8th Dist.). As such, Holmes’s attorney was not ineffective for failing to

object to the indictment as written.

Accordingly, Holmes’s eighth assignment of error is overruled.

J. Ninth Assigned Error for Review — Allied Offenses

In his ninth and final assigned error for review, Holmes claims that

the trial court erred in failing to merge his convictions for tampering with records

and telecommunications fraud prior to sentencing and that his trial counsel was

ineffective for failing to request the court to do so.

We review whether offenses are allied offense of similar import

under a de novo standard of review. State v. Akins, 2025-Ohio-5632, ¶ 36 (8th

Dist.), citing State v. Sims, 2024-Ohio-250, ¶ 28 (8th Dist.). However, Holmes did

not raise an allied offenses argument with respect to his tampering-with-records and

telecommunications-fraud convictions or object to the sentences imposed by the

trial court. By failing to seek the merger of these convictions, he “has forfeited his

allied offenses claim, except to the extent it constitutes plain error.” State v.

Hilliard, 2015-Ohio-3142, ¶ 16 (8th Dist.), citing Rogers, 2015-Ohio-2459, at ¶ 21- 25. As such, Holmes “bears the burden of establishing his entitlement to the

protection provided by R.C. 2941.25 [the allied offenses statute.]” State v. Davids,

2022-Ohio-2272, ¶ 43 (8th Dist.).

R.C. 2941.25 governs whether offenses are subject to merger and

provides:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

In determining whether offenses should merge for sentencing under

this statute, courts review three separate factors: the import, the conduct, and the

animus. Akins at ¶ 38, citing State v. Bey, 2025-Ohio-740, ¶ 86 (8th Dist.), citing

State v. Ruff, 2015-Ohio-995, paragraphs one and three of the syllabus. In short,

“[o]ffenses do not merge, and a defendant may be convicted of and sentenced for

multiple offenses if any one of the following is true: (1) the offenses are dissimilar in

import or significance, (2) the offenses were committed separately, or (3) the

offenses were committed with separate animus or motivation.” Bey at ¶ 86, citing

Ruff at paragraph three of the syllabus, ¶ 25, 31. Offenses are committed separately under this statute if “‘one offense

was complete before the other offense occurred . . . notwithstanding their proximity

in time and that one [offense] was committed in order to commit the other.”’ State

v. Woodard, 2022-Ohio-3081, ¶ 38 (2d Dist.), quoting State v. Turner, 2011-Ohio-

6714, ¶ 24 (2d Dist.). “Thus, ‘“when one offense is completed prior to the completion

of another offense during the defendant’s course of conduct, those offenses are

separate acts.”’” Akins, 2025-Ohio-5632, at ¶ 39 (8th Dist.), quoting Woodard at ¶

38, quoting State v. Mooty, 2014-Ohio-733, ¶ 49 (2d Dist.). With respect to animus,

it has been defined as “‘purpose or more properly, immediate motive.’” State v.

Priest, 2018-Ohio-5355, ¶ 12 (8th Dist.), quoting State v. Bailey, 2014-Ohio-4684,

¶ 34 (8th Dist.). “‘“If the defendant acted with the same purpose, intent, or motive

in both instances, the animus is identical for both offenses.”’” Akins at ¶ 39, quoting

State v. Lane, 2014-Ohio-562, ¶ 12 (12th Dist.), quoting State v. Lewis, 2012-Ohio-

885, ¶ 13 (12th Dist.).

The record demonstrates that Holmes’s convictions for tampering

with records and telecommunications fraud arise from the single act of Holmes

instructing Homan to “tell them [dispatch] they struck our vehicle.” As discussed

above, the jury could have determined he did so with the fraudulent intent to cover

up his violation of East Cleveland Police policies, i.e., that he attempted an

unauthorized “PIT” maneuver without supervisor approval. Thus, it cannot be said that the offenses for tampering with records or telecommunications fraud were

committed separately or with separate animus with respect to each offense.

The question thus becomes whether the offenses fall under the first

prong of the Ruff test, i.e. whether the offenses are dissimilar in import or

significance. “Offenses are dissimilar in import or significance within the meaning

of R.C. 2941.25(B) ‘when the defendant’s conduct constitutes offenses involving

separate victims or if the harm that results from each offense is separate and

identifiable.’” Akins at ¶ 39 (8th Dist.), quoting Ruff, 2015-Ohio-995, at ¶ 23.

Here, the State argues that the import of falsifying a police report as

the basis for Holmes’s tampering-with-records convictions differs in import from

the false radio broadcast as the basis for Holmes’s telecommunications convictions,

“even if both acts were part of a course of conduct and committed with the same

animus of motivation.” In short, the State argues that the harm resulting from each

offense is separate and identifiable. Holmes even concedes that the “separate nature

of the written Police Report and the radio broadcast is evident” and that if the

tampering-with-records offense were based off the police report, rather than the

radio broadcast, the two offenses would not merge.

However, Holmes contends that since the jury was instructed that

either the police report or the radio broadcast could be the basis for tampering-with-

records charge, the State cannot assume that the tampering with records charge was

based upon the police report. But this argument improperly places the burden of

proof on the State. Under a plain-error analysis, it is “the accused [that] bears the burden of proof to demonstrate plain error on the record[.]” Rogers, 2015-Ohio-

2459, at ¶ 22, citing Quarterman, 2014-Ohio-4034, at ¶ 16. The accused “must show

‘an error, i.e., a deviation from a legal rule’ that constitutes ‘an “obvious” defect in

the trial proceedings[.]’” Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002).

And even if the error is obvious, “‘the trial court’s error must have affected the

outcome of the trial.’” Id., quoting Barnes at 27. “The accused is therefore required

to demonstrate a reasonable probability that the error resulted in prejudice—the

same deferential standard for reviewing ineffective assistance of counsel claims.”

Id., citing United States v. Dominguez, 542 U.S. at 81-83.

Holmes has not met his burden here. He concedes that if the

tampering-with-records offense were based off the police report, rather than the

radio broadcast, the two offenses would not merge. From this record, we cannot tell

whether the jury based their conviction for tampering with records on the police

report or the radio broadcast. As such, Holmes has failed to demonstrate that the

court’s failure to merge his convictions for tampering with records and

telecommunications fraud was plain error. Accordingly, the trial court did not

commit plain error by failing to merge these convictions. See, e.g., State v. Ross,

2018-Ohio-2728, ¶ 20 (8th Dist.) (Where the record contained insufficient facts to

determine whether the defendant’s aggravated-robbery and theft convictions were

allied offenses of similar import, the trial court did not commit plain error in failing

to merge defendant’s convictions.); State v. Hilliard, 2015-Ohio-3142, ¶ 28 (8th

Dist.) (Where the record contained insufficient facts to determine whether the defendant’s kidnapping and aggravated-murder convictions were allied offenses of

similar import, the trial court did not commit plain error in failing to merge

defendant’s convictions.); State v. Burrows, 2020-Ohio-3646, ¶ 11 (Defendant

cannot demonstrate plain error “merely by arguing that the offenses would merge if

additional facts are assumed.”).

Similarly, we cannot say that had Holmes’s trial counsel objected to

the court’s failure to merge these offenses the outcome would have been any

different. Therefore, we cannot say that his trial counsel was ineffective.

Accordingly, Holmes’s ninth and final assignment of error is

III. Conclusion

Following a thorough review of the record and applicable law, we

overrule Holmes’s nine assignments of error. His convictions and sentences for

interfering with civil rights, dereliction of duty, tampering with records, and

telecommunications fraud are affirmed.

Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

_______________________________________ MICHELLE J. SHEEHAN, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and MICHAEL JOHN RYAN, J., CONCUR