[Cite as State v. James, 2013-Ohio-5475.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
State of Ohio, : : Plaintiff-Appellee, : : Case No. 13CA3370 v. : : DECISION AND Dana S. James, : JUDGMENT ENTRY : Defendant-Appellant. : Released: 12/05/2013
APPEARANCES: Lori J. Rankin, Chillicothe, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C. Marks, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
Hoover, J.
{¶ 1} This is an appeal from the Ross County Court of Common Pleas, where a
jury found appellant, Dana S. James, guilty of one count of Aggravated Robbery, a first
degree felony, in violation of R.C. 2911.01, with a Firearm Specification. Appellant was
sentenced to six years in prison on the count of Aggravated Robbery and an additional
three years on the Firearm Specification, for an aggregate total of nine years.
{¶ 2} Appellant sets forth two assignments of error for review:
First Assignment of Error:
IN VIOLATION OF DUE PROCESS, MR. JAMES WAS FOUND
GUILTY OF A FIREARM SPECIFICATION WHEN SUCH A
FINDING WAS NOT BASED ON SUFFICIENT EVIDENCE.
Second Assignment of Error: Ross App. No. 13CA3370 2
THE CUMULATIVE EFFECT OF THE ERRORS MADE BY TRIAL
COUNSEL DENIED MR. JAMES HIS CONSTITUTIONAL RIGHT TO
THE EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL
For the following reasons, we overrule appellant’s assignments of error and affirm his
convictions.
{¶ 3} In the early hours of April 21, 2012, two individuals stole an unknown
amount of money from a Chillicothe Burger King. An investigation led law enforcement
to believe that two brothers, Dana and Brock James, committed the offense. The brothers
were aided by Robert De Los Santos, a Burger King employee. On June 1, 2012, Dana
James, appellant herein, was charged with one count of Aggravated Robbery with a
Firearm Specification. Brock James was charged with one count of Complicity to
Aggravated Robbery.
{¶ 4} On July 20, 2012, the trial court joined the cases and scheduled a trial date.
Before the trial, Brock James pleaded guilty to the complicity charge pursuant to a plea
agreement. Appellant’s two-day trial occurred on January 28, 2013 and January 29,
2013. The jury found appellant guilty as to the charge of Aggravated Robbery with a
Firearm Specification. The trial court sentenced him to six years in prison on the count
of Aggravated Robbery with an additional three years for the Firearm Specification.
Appellant timely filed this appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 5} In his first assignment of error, appellant argues that his conviction of a
Firearm Specification was not supported by sufficient evidence. He argues that the State
failed to prove that the alleged firearm was operable. The State counters that enough Ross App. No. 13CA3370 3
evidence was presented for the jury to find appellant guilty of the Firearm Specification.
The State cites two employees who both testified to seeing a handgun in appellant’s
possession. Additionally, the State argues that even without the express verbal threat to
fire the gun, the fact that appellant made demands while pointing the gun at the respective
witnesses, satisfies the element of operability.
A. Legal Standard
{¶ 6} “When reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable doubt." State v. Davis,
4th Dist. Ross No. 12CA3336, 2013-Ohio-1504, ¶ 12 citing State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). “The standard of review is whether, after
viewing the probative evidence and inferences reasonably drawn therefrom in the light
most favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt.” Id. citing Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61
Ohio St.3d 259, 273, 574 N.E.2d 492 (1991).
{¶ 7} “Therefore, when we review a sufficiency of the evidence claim in a
criminal case, we review the evidence in a light most favorable to the prosecution.” State
v. Warren, 4th Dist. Ross No. 12CA3324, 2013-Ohio-3542, ¶ 15 citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477,
620 N.E.2d 50 (1993). “A reviewing court will not overturn a conviction on a sufficiency
of the evidence claim unless reasonable minds could not reach the conclusion the trier of Ross App. No. 13CA3370 4
fact did.” Id. citing State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E .2d 226 (2001);
State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E .2d 749 (2001).
{¶ 8} “For a firearm specification to apply, an offender must have ‘had a firearm
on or about the offender's person or under the offender's control while committing the
offense and displayed the firearm, brandished the firearm, indicated that the offender
possessed the firearm, or used it to facilitate the offense.’ ” State v. Colley, 4th Dist.
Scioto No. 09CA3323, 2010-Ohio-4834, ¶ 56 quoting R.C. 2941.145(A). A court
evaluates the evidence of a firearm’s operability by examining the totality of the
circumstances. The state may use circumstantial evidence to establish that the defendant
possessed an operable firearm. State v. Dickess, 4th Dist. Scioto No. 06CA3128, 2008-
Ohio-39, ¶ 53 citing Thompkins, at paragraph one of the syllabus.
{¶ 9} A victim's belief that the weapon is a gun, together with the defendant's
intent to create and use the victim's belief for the defendant's own criminal purposes, is
sufficient to prove a firearm specification. Id. citing State v. Jeffers, 143 Ohio App.3d
91, 757 N.E.2d 417 (2001). “*** [T]he trier of fact may consider *** any implicit threat
made by the individual in control of the firearm.” State v. Brooks, 8th Dist. Cuyahoga No.
92389, 2009-Ohio-5559, ¶ 28 quoting Thompkins at 385. “[W]here an individual
brandishes a gun and implicitly but not expressly threatens to discharge the firearm at the
time of the offense, the threat can be sufficient to satisfy the state’s burden of proving
that the firearm was operable or capable of being readily rendered operable.” Thompkins
at 384. Thompkins clarifies that actions alone, without verbal threats, may be sufficient
circumstances to establish the operability of a firearm.” State v. Reynolds, 79 Ohio St.3d
158, 679 N.E.2d 1131 (1997), fn. 3. Ross App. No. 13CA3370 5
B. Analysis
{¶ 10} At trial, two witnesses who were working for Burger King the night in
question gave testimony regarding the appellant holding a firearm during the robbery.
The first was Cody Krafthefer, who first encountered the robbers after they walked in
through the back door. On direct examination, Mr. Krafthefer testified:
MR. KRAFTHEFER: By that time I was already in the store, and I turned
around and there were two men in the store and I raised my hand to tell
them you can’t be here.
MR. MARKS: Okay. What did they do?
MR. KRAFTHEFER: The taller one produced a small handgun, what
looked like a handgun, and said, this isn’t a joke. You need to get down
on the ground.
…
MR. MARKS: Okay. And you say it was the taller one that produced
what you believed to be a handgun?
MR. KRAFTHEFER: Right.
MR. MARKS: What made you believe that it was a handgun?
MR. KRAFTHEFER: It was just, it looked like a barrel, and I’ve seen
handguns. My Dad has handguns. I’ve been around them all my life. I
really thought it was a gun.
{¶ 11} The assistant manager at Burger King, Patricia Uhrig, was also working
on the night in question. As she was breaking down the money drawers for the night, she
heard a voice tell her: “ma’am, give me all your money.” Ms. Uhrig also testified Ross App. No. 13CA3370 6
regarding a gun used in the robbery. She gave the following testimony on direct
examination:
MR. MARKS: Along with the face being covered up with the, I believe
you said a t-shirt, what else did you observe at that time?
MS. UHRIG: I noticed a gun pointed at me.
MS. MARKS: Where was the gun located?
Ms. UHRIG: It was inside of his sleeve.
MR. MARKS: Okay. Were you able to see any of it?
MS. UHRIG: Just the end part of it.
MR. MARKS: What caused you to believe that it was a gun?
MS. UHRIG: Well, it was dark grey. I mean, it’s, it was shaped like a gun,
so.
MR. MARKS: Had you seen guns before?
MS. UHRIG: Well, yes and no. I don’t own a gun. I’ve seen guns on TV
and stuff, and in books and things, but I’ve never had one pointed at me.
MR. MARKS: Okay. Approximately how far away from you was the gun
as it was pointed at you?
MS. UHRIG: He was, he had it in his sleeve.
MR. MARKS: But how far away was it from you?
MS. UHRIG: I don’t know, I was sitting there, and he was standing in the
doorway. Maybe two feet.
{¶ 12} Appellant argues that the robber never made any statement or gesture
indicating he would use the gun to shoot anyone. Therefore, according to appellant, the Ross App. No. 13CA3370 7
State failed to prove the alleged firearm was operable. We disagree. Here, two
employees, working the night of the robbery testified to seeing a gun in the robber’s
possession. Mr. Krafthefer testified that he was ordered to stay on the floor, while he
could see the gun pointed at him. Similarly, Ms. Uhrig testified that the robber asked her
for money, while having a gun pointed at her. Consequently, evidence existed in this
case that a firearm was used as an implicit threat and facilitated the criminal offense.
Considering our standard of review and these facts, we decline to reverse appellant’s
guilty verdict on the firearm specification. A trier of fact in this case could have
reasonably concluded that appellant was in possession of a firearm at the time of the
robbery. Therefore, we overrule appellant’s first assignment of error.
SECOND ASSIGNMENT OF ERROR
{¶ 13} In appellant’s second assignment of error, he argues that his trial counsel
committed multiple errors in violation of his Sixth Amendment right to effective
assistance of counsel.
{¶ 14} Criminal defendants have a right to counsel, including a right to the
effective assistance from counsel. See McMann v. Richardson, 397 U.S. 759, 771, 90
S.Ct. 1441, 25 L.Ed.2d 763 (1970), fn. 14; State v. Stout, 4th Dist. Gallia No. 07CA5,
2008-Ohio-1366, ¶ 21. To establish constitutionally ineffective assistance of counsel, a
defendant must show (1) that his counsel’s performance was deficient and (2) that the
deficient performance prejudiced the defense and deprived him of a fair trial. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State Ross App. No. 13CA3370 8
v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123,
139, 694 N.E.2d 916 (1998).
{¶ 15} “In order to show deficient performance, the defendant must prove that
counsel’s performance fell below an objective level of reasonable representation. To
show prejudice, the defendant must show a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.” (Citations omitted.)
State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure
to establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No.
06CA3116, 2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a court need
not analyze both. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000)
(stating that a defendant’s failure to satisfy one of the elements “negates a court’s need to
consider the other.”).
{¶ 16} When considering whether trial counsel’s representation amounts to
deficient performance, “a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland at 689.
Thus, “the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. “A properly licensed
attorney is presumed to execute his duties in an ethical and competent manner.” State v.
Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10, citing State v. Smith, 17
Ohio St.3d 98, 100, 17 OBR 219, 477 N.E.2d 1128 (1985). Therefore, a defendant bears
the burden to show ineffectiveness by demonstrating that counsel’s errors were so serious
that he or she failed to function as the counsel guaranteed by the Sixth Amendment. See Ross App. No. 13CA3370 9
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62; State v.
Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).
{¶ 17} To establish prejudice, a defendant must demonstrate that a reasonable
probability exists that but for counsel’s errors, the result of the trial would have been
different. State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley,
42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus (1989). Furthermore,
courts may not simply assume the existence of prejudice, but must require that prejudice
be affirmatively demonstrated. See State v. Clark, 4th Dist. Pike No. 02CA684, 2003-
Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592, 2002 WL 507529, *3
(Apr. 2, 2002); State v. Kuntz, 4th Dist. Ross No. 1691, 1992 WL 42774, *2 (Feb. 26,
1992).
{¶ 18} Appellant lists several errors made by trial counsel. Appellant argues that
cumulatively the errors prejudiced his defense in such a manner as to deny his Sixth
Amendment right to counsel and a fair trial.
{¶ 19} Appellant contends that his defense was prejudiced when his trial counsel
failed to file a motion to suppress the money Officer Gannon seized from him on a matter
unrelated to the robbery. First, we note that the failure to file a motion to suppress does
not constitute per se ineffective assistance of counsel. State v. Walters, 4th Dist. Adams
No. 12CA949, 2013-Ohio-772, ¶ 20. Instead, the failure to file a motion to suppress
amounts to ineffective assistance of counsel only when the record demonstrates that the
motion would have been successful if made. Id., See, State v. Resendiz, 12th Dist. No.
CA2009-04-012, 2009-Ohio-6177, ¶ 29. Ross App. No. 13CA3370 10
{¶ 20} On July 22, 2012, a day after the robbery, Chillicothe Police Officer
Tonya Gannon responded to a call regarding a domestic dispute and a subject with a gun.
Officer Gannon noticed an individual matching the description of a white male wearing
glasses and a white hooded sweatshirt. The individual was appellant Dana James. Upon
making contact with appellant, Officer Gannon observed a bag of marijuana in his
sweatshirt pocket. The officer also found approximately six hundred dollars in cash. The
record indicates that Officer Gannon seized both the marijuana and the cash. The record
does not indicate whether appellant was arrested at that time.
{¶ 21} Appellant relies on the fact that the record is silent concerning whether he
was arrested as a result of his interaction with Officer Gannon. Appellant argues that
without an arrest, no legal justification exists for the seizure of money.
{¶ 22} The record lacks sufficient information for us to determine whether a
motion to suppress would have been granted. We have previously addressed such a
situation in State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482. This
court acknowledged, “***it may be difficult for a defendant to establish in hindsight that
a suppression motion would have been granted on the basis of evidence contained in a
trial transcript." Id. at 14. “Where the record is not clear or lacks sufficient evidence to
determine whether a suppression motion would have been successful, a claim for
ineffective assistance of counsel cannot be established” State v. Parkinson, 5th Dist.
Stark No. 1995CA00208, 1996 WL 363435, *3 (May 20, 1996).
{¶ 23} Here, we do not know if Officer Gannon arrested appellant when she
seized the marijuana and the cash. Without this information, we cannot determine if an
earlier motion to suppress might have been granted. Additionally, appellant cannot meet Ross App. No. 13CA3370 11
his burden to demonstrate that the motion to suppress would have been granted and the
outcome of the proceeding would have been different. Therefore, appellant’s argument
with respect to the motion to suppress is overruled.
{¶ 24} Appellant’s second claim of ineffective assistance of counsel is based
upon trial counsel failing to file a motion in limine regarding the testimony of Besty
Smith. Ms. Smith was the girlfriend of appellant’s brother Brock James. According to
appellant, Ms. Smith gave testimony that did not meet Evid.R. 801(D)(2)(e) regarding
statements that are not hearsay, and thus should not have been submitted to the jury.
{¶ 25} Evid. R. 801(D)(2)(e) states: “A statement is not hearsay if the statement
is offered against a party and is (e) a statement by a co-conspirator of a party during the
course and in furtherance of the conspiracy upon independent proof of the conspiracy.”
{¶ 26} Ms. Smith testified on two different occasions. When she took the stand
the first time, she was asked if she ever had a conversation with Brock James, appellant’s
brother, about the Burger King robbery. Appellant’s trial counsel immediately objected;
and the trial court sustained the objection under Evid.R. 801(D)(2) because the State
lacked independent proof of a conspiracy.
{¶ 27} The State then requested to dismiss Ms. Smith and call Robert De Los
Santos as a witness with the intention that he would provide the independent proof. After
the testimony of Mr. De Los Santos, Ms. Smith was recalled to the stand. The State
asked Ms. Smith again if she had any conversations with Brock James about the robbery
before it took place. Appellant’s trial counsel again objected on the basis of hearsay.
This time the court overruled counsel’s objection. Ross App. No. 13CA3370 12
{¶ 28} Appellant argues that if counsel would have requested the exclusion of
this evidence prior to trial, via a motion in limine, the trial court would have been
informed that the statement in no way furthered the conspiracy and was therefore
inadmissible hearsay. We disagree with appellant and find no ineffective assistance of
counsel regarding Ms. Smith’s testimony. Trial counsel actually objected both times
when the State questioned Ms. Smith about the conversations she might have had with
Brock James prior to the robbery. Therefore, we cannot find error when trial counsel
acted to exclude the testimony to which appellant now argues should not have been
submitted to the jury.
{¶ 29} Next, appellant argues that his trial counsel failed to protect and exercise
his client’s right to confront witnesses by his inept and, at times, damaging cross
examination of the state’s witnesses. Appellant alleges that his trial counsel (1) failed to
reveal to the jury a jailhouse informant’s self interest for providing testimony, (2) failed
to follow the cardinal rules of cross examination, and (3) aided the State’s case by
allowing the State’s witnesses to add to their direct testimony and support their
credibility.
{¶ 30} “The extent and scope of cross-examination clearly fall within the ambit
of trial strategy, and debatable trial tactics do not establish ineffective assistance of
counsel.” State v. Madden, 4th Dist. Adams No. 09CA883y, 2010-Ohio-176, ¶ 25
quoting State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, at ¶ 146,
See also, State v. Campbell, 90 Ohio St.3d 320, 339, 2000-Ohio-183, 738 N.E.2d 1178;
State v. Otte, 74 Ohio St.3d 555, 565, 1996-Ohio-108, 660 N.E.2d 711. Ross App. No. 13CA3370 13
{¶ 31} Appellant alleges that trial counsel failed to properly cross-examine David
Payne Jr., who spent time with appellant as an inmate at the Ross County jail. Appellant
argues that trial counsel failed to reveal Mr. Payne’s motivations in testifying against
appellant. After a review of the transcript, it appears trial counsel questioned Mr. Payne
about this very subject. From the record, the following testimony occurred on cross-
MR. CARTER [appellant’s trial counsel]: You weren’t trying to seek out
any type of deal or give information for anything?
MR. PAYNE: No.
MR. CARTER: So you just did it out of the completion [sic] kindness of
your heart to report it to the police?
MR. PAYNE: I mean, yeah, that’s, I…
MR. CARTER: Okay.
MR. PAYNE: I mean, I wasn’t promised nothing or..
MR. CARTER: Well, I mean, I know you weren’t promised anything, but
were you hoping for something?
MR. PAYNE: Well, yeah, I was hoping for something, but I mean, I
wasn’t, you know…
MR. CARTER: So in fact, you were giving information hoping you would
get some type of deal?
MR. PAYNE: Yeah. Ross App. No. 13CA3370 14
It is clear that counsel attempted to call attention to Mr. Payne’s potential motives in
testifying against appellant. Accordingly, we do not find trial counsel’s cross-
examination of Mr. Payne rises to the level of deficient performance.
{¶ 32} Appellant also alleges that trial counsel failed to follow cardinal rules of
cross-examination. Appellant mentions examples such as trial counsel failing to ask
leading questions, allowing witnesses to explain their direct examination answers, and
eliciting additional information that aided the State’s case. After examining the
transcripts of trial counsel’s cross-examination of witnesses, we find appellant has failed
to overcome the presumption of debatable trial tactics. Furthermore, nothing in the
record demonstrates that the cross-examination rose to the level of deficient performance
which prejudiced appellant. Therefore, we do not find trial counsel’s cross-examination
constitutes ineffective assistance of counsel.
{¶ 33} Lastly, appellant argues that trial counsel failed to raise a Crim.R. 29
motion for acquittal on the firearm specification. Crim.R. 29 states: “The court on
motion of a defendant or on its own motion, after the evidence on either side is closed,
shall order the entry of a judgment of acquittal of one or more offenses charged in the
indictment, information, or complaint, if the evidence is insufficient to sustain a
conviction of such offense or offenses.” This argument was essentially addressed in
appellant’s first assignment of error. Since we determined that the firearm specification
was supported by sufficient evidence, appellant cannot demonstrate prejudice for trial
counsel's failure to make a Crim.R. 29 motion for acquittal. Ross App. No. 13CA3370 15
{¶ 34} Appellant has failed to affirmatively demonstrate that trial counsel’s
alleged errors provided him ineffective assistance of counsel. Therefore, we overrule
appellant’s second assignment of error.
III. Conclusion
{¶ 35} In conclusion, we find no merit in appellant’s assignments of error.
Sufficient evidence existed to support the jury’s conviction as to the firearm
specification. In addition, appellant has failed to prove that his trial counsel provided
ineffective assistance of counsel that resulted in him being prejudiced. Accordingly, we
overrule appellant’s assignments of error and affirm his convictions.
JUDGMENT AFFIRMED. Ross App. No. 13CA3370 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the 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 Ross County Common Pleas Court, to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
By: ______ Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.