State v. Lavender

2019 Ohio 5352

• Court: Ohio Court of Appeals
• Decided: December 27, 2019
• Docket: C-180003
• Status: Published

Opinion

[Cite as State v. Lavender, 2019-Ohio-5352.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-180003 TRIAL NO. B-1700948 Plaintiff-Appellee, :

vs. : O P I N I O N.

ANDREW LAVENDER, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 27, 2019

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Wendy R. Calaway, for Defendant-Appellant. O HIO F IRST D ISTRICT C OURT OF A PPEALS

M OCK , Presiding Judge.

{¶1} In eight assignments of error, defendant-appellant Andrew Lavender

claims that he was improperly convicted of aggravated murder and sentenced to life

in prison without the possibility of parole. For the reasons set forth below, we

disagree with those assertions and affirm the judgment of the trial court.

The Killing of Ceran Lipscomb

{¶2} During the evening of August 1, 2014, Ceran Lipscomb was shot and

killed by an individual using a .22-caliber weapon. A man named Ramon Davis was

using a portable restroom in the area when the shots were fired. He fled from the

restroom and called 911. He told the operator that he had seen someone running

from the body. He described the man as between 40 and 50 years old, five feet eight

inches tall, and slender. He said that the man had on purple jogging pants, a black

top, and a cap, and had a mustache or goatee. Another individual, 15-year-old

Dennis Coulter was outside his apartment with his cousin when the incident

occurred. He told police that he saw the shooter run away from the body and down

an alley behind the apartment buildings. He said he saw the man two different

times: once as he was running from the body, and again as he was running in the

alley behind the apartments. Coulter told police that he had seen the man before in

the neighborhood but did not know him or know his name.

{¶3} A few days after the shooting, Coulter worked with a sketch artist to

generate an image of the shooter’s face. Police had little more to go on until

Domingo Johnson was arrested on a number of drug-related charges. He contacted

the investigating detectives and informed them that he had information on the

Lipscomb killing. He told police that shortly before the killing, he was in an

apartment when he overheard a young man he knew as “Shooter” bragging about

how he was taking a hit on “Little Charlie’s Brother.” The name “Little Charlie” was a

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name associated with Lipscomb’s brother. He also said that Shooter had a small

caliber revolver. Using social media, detectives were able to connect the name

“Shooter” with defendant-appellant Andrew Lavender. Johnson identified Lavender

as the person he overheard talking about the hit. The police requested a photo array

from the Hamilton County Juvenile Court, since Lavender was 16 years old at the

time, and presented the photo array to Coulter. Coulter was shown the images one at

a time. As Coulter was going through each image, he initially said that another man

pictured looked like the shooter. As he continued though the rest, however, he then

reached Lavender’s picture and positively identified him.

{¶4} Lavender was arrested and police gained access to his cellular phone

data. Of significance, police retrieved thousands of text messages from his phone

going back months before the shooting. The vast majority of these text messages

were introduced at trial by the state, for the purpose of attempting to show

Lavender’s growing desperation with regard to money, which lead Lavender to agree

to kill Lipscomb for hire. After conducting a hearing on the matter, the trial court

admitted the vast majority of these text messages for the limited purpose of allowing

the state to show Lavender’s motivation for the killings in his growing desperation

with regard to money during the months before Lipscomb’s death.

{¶5} Because Lavender was 16 when he committed the offense, his case

was first brought in Hamilton County Juvenile Court, in the case numbered 14-7191.

The state filed a motion to have Lavender bound over to the adult common pleas

docket. After determining probable cause, the juvenile court judge failed to conduct

an amenability hearing, believing that the bindover to the adult court was

mandatory. Lavender was then indicted in the case numbered B-1405471, and

charged with one count of aggravated murder, in violation of R.C. 2903.01(B), and

one count of aggravated murder, in violation of R.C. 2903.02(B). Both counts

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included firearm specifications. The case proceeded for some time, including the

briefing, arguing, and a decision on a motion to suppress the results of the photo

array. The case remained pending for three years before the problem with the

bindover was discovered. The state then dismissed the case and refiled in the

juvenile court. The juvenile court conducted new hearings, this time conducting an

amenability hearing. At the conclusion of those hearings, the case was again

transferred to the general division of the common pleas court. Lavender was again

indicted for two counts of aggravated murder. The case proceeded to a two-week

jury trial, after which Lavender was found guilty on both counts and all

specifications. On the first count, Lavender was sentenced to life in prison without

the possibility of parole, with an additional three years for the gun specification. The

second count was merged with the first. In eight assignments of error, Lavender now

appeals.

Admission of Evidence

{¶6} In his first assignment of error, Lavender claims that the trial court

erred when it admitted certain evidence. In particular, he claims that the admission

of a photograph from Facebook showing him posing with weapons was improper.

He also claims that the admission of his text messages was improper. And he finally

claims that it was improper for the court to allow an officer to testify about how

contract killings are conducted.

The Photograph

{¶7} In the photograph Lavender challenges, he is seen pointing one gun at

the camera while holding another gun at his side. Neither side has argued that the

gun Lavender is pointing at the camera is related to the case. But the state argues

that the gun in his other hand appears to be a small-caliber revolver. Lipscomb was

killed by a .22-caliber weapon, and the state theorized that the weapon was a

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revolver because no casings were found at the crime scene A revolver would retain

its bullet casings in its cylinder, while a semi-automatic pistol would eject the casing

after firing each round. The state’s expert could not confirm that the shots were fired

from a revolver but did say that the physical evidence would be consistent with that.

He said that it was “very common to find .22 caliber ammunition chambered in

revolvers.” When shown the photograph, he said that “based on what I can see it

certainly appears to be most consistent in physical shape with a revolver simply

because of the width versus the length, and it looks like basically a small-sized

handgun.” He further said that “it looks like a very small revolver and you will find a

lot of .22 caliber handguns in a small sized frame handgun.”

{¶8} Prior to the testimony from the expert about the weapon, the trial

court conducted a hearing. Initially, there were three photographs proposed for

admission by the state. The other photographs included different weapons. Citing

State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, Lavender

argued that the photographs that showed Lavender with another weapon and

another person holding a revolver with Lavender present were unduly prejudicial.

After hearing the argument, the trial court allowed only the photograph of Lavender

with the revolver in his hand concluding, “assuming a proper foundation is laid and

relying on the prosecutor to establish the fact that Mr. Lattyak would testify that it

was a revolver and that it was a .22, and if he’s shown the photograph of 16(A), which

includes the revolver in the hand of what purports to be the defendant, that that [sic]

would be admissible.” During the testimony, clarifying rulings were made. First, the

trial court allowed the state to continue questioning about the photograph “if the

foundation was laid or if it was at least established that the revolver could have been

the type consistent with .22 bullet that was recovered [sic].” The trial court also

ruled that when the witness seemed hesitant to identify the type of handgun in the

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photograph, the state could lay “additional foundation * * * such that if the expert

would say that the revolver would be consistent with the type of gun used for the

bullet recovered.”

{¶9} The admission of evidence is within the sound discretion of the trial

court. See State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶

61. We will not disturb a trial court’s ruling on evidentiary issues on appeal absent

an abuse of discretion and proof of material prejudice. State v. McKelton, 148 Ohio

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 181; State v. Belton, 149 Ohio St.3d 165,

2016-Ohio-1581, 74 N.E.3d 319, ¶ 116.

{¶10} The term “abuse of discretion” connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable. Body Power, Inc. v. Mansour, 1st Dist. Hamilton No. C-130479,

2014-Ohio-1264, ¶ 28, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 291, 450

N.E.2d 1140 (1983). Most cases will fall within the “unreasonable” prong of

discretionary decisions, as few judges issue decisions that are unconscionable or

arbitrary. AAAA Ent., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio

St.3d 157, 161, 553 N.E.2d 597 (1990). A decision is unreasonable if

there is no sound reasoning process that would support that decision.

It is not enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would

support a contrary result.

Id. “An abuse of discretion implies that a decision is both without a reasonable basis

and is clearly wrong.” Aetna Better Health, Inc. v. Colbert, 10th Dist. Franklin No.

12AP-720, 2012-Ohio-6206, ¶ 21, citing Hartzog v. Ohio State Univ., 27 Ohio App.3d

214, 500 N.E.2d 362 (10th Dist.1985).

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{¶11} The state’s theory, based on the lack of casing at the scene, was that

the .22-caliber bullet that killed Lipscomb came from a revolver. Further, Coulter

testified that he had seen the shooter wrap the small handgun in his shirt as he ran

away, indicating that a rifle was not involved. The expert witness testified that the

photograph was consistent with a .22-caliber handgun, and Johnson testified that he

had seen Lavender with a small revolver prior to the shooting.

{¶12} “Logically, all evidence presented by a prosecutor is prejudicial, but

not all evidence unfairly prejudices a defendant.” State v. Wright, 48 Ohio St.3d 5,

8, 548 N.E.2d 923 (1990). Courts have said that the admission of a photograph of a

defendant with a weapon is appropriate when it is similar to one seen used in a

crime. See, e.g., State v. Lee, 1st Dist. Hamilton No. C-160294, 2017-Ohio-7377, ¶ 12.

Similarly, the trial court here allowed the admission of the photograph of a handgun

that was similar to the type of weapon that law enforcement believed was used in the

case and had been tied to Lavender through Johnson. Lavender was able to then

attack whether that asserted connection was credible, which he did through counsel’s

effective cross-examination and closing argument.

{¶13} In this case, we cannot conclude that the decision of the trial court

was “without a reasonable basis” or “clearly wrong.” We conclude that the trial court

had a reasonable basis to determine that the photograph was relevant, admissible,

and that the probative value of the photograph was not substantially outweighed by

undue prejudice.

Text Messages

{¶14} Lavender makes several intertwined arguments related to the text

messages that were admitted at trial. He claims that the admission of the entire

record of the text conversations covering the period of several months prior to the

killing was improper as “hundreds of the texts were completely irrelevant.” He then

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argues that some of the text messages violated Evid.R. 403, and others vi0lated

Evid.R. 404. In order to analyze this portion of his argument, however, we must give

a detailed account of how the text messages were handled during the course of the

trial.

{¶15} Detective Gregory Gehring was the state’s witness through whom the

text messages were admitted. He was the officer who worked with employees of

Cincinnati Bell to obtain the records, though the records custodian from Cincinnati

Bell testified for authentication purposes. It is clear that both sides understood that

the admission and use of these text messages was going to be a significant issue in

the case from an evidentiary perspective. So much so that the trial court held a

hearing before Gehring testified to try and determine as many of the legal issues as

possible prior to the time the exhibits would be admitted.

{¶16} The text messages were admitted in various forms. First, there was

an overall set of two large binders which contained every text message from or to

Lavender from April 26 to August 21, 2014 (hereinafter “the comprehensive set”). In

addition to the comprehensive set, the state also had a smaller binder of messages

that law enforcement was able to retrieve from the cell phone’s memory (hereinafter

“the memory set”). All of these messages were also contained in the comprehensive

set. And in addition to that, the state had a series of specific exhibits (hereinafter

“the 15 series”) that it had pulled from the comprehensive set for purposes of specific

presentation to the jury during the trial.

{¶17} As the hearing began, the trial court pressed the state on the need to

admit the comprehensive set to the jury if it was planning on focusing on a small

fraction of the total. The state responded that “we were going to do that because it’s

the records, and then from that book we were going to tell the jury we have those

records, which are pages out of that book on different dates indicating different

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conversations.” The state later said that “the problem, too, with these records,

Judge, is he’s making conversations with different people that have different

information about him. When he’s talking - - and so if you don’t take this stuff as a

whole, it’s easier to put out of context what the defendant is saying and the import of

it.” The state also was concerned that if it only offered the individual messages

without the context, Lavender could argue that things had been left out and argue

what the absent messages might have held.

{¶18} Lavender began the hearing arguing generally that the comprehensive

set was objectionable because many of the messages were from several months

before the murder, and that they lacked relevance for that reason. He then argued

that, for some of the messages, the probative value was substantially outweighed by

the prejudicial effect they would have on the jury. Further, Lavender highlighted the

danger that, as these text messages related to illegal activity and other things that

cast him in a negative light, there was a danger that he would be convicted not on the

evidence, but because the jury simply reached the conclusion that he was a bad

person who did bad things.

{¶19} The state assured the trial court that the evidence, largely, was not

being offered as direct evidence of Lavender’s guilt. But rather the evidence was

being offered to demonstrate Lavender’s motive to take a murder-for-hire contract—

the fact that he was increasingly desperate for money. The state argued:

We’re showing it so that the jury has in their minds what’s

going on in the defendant’s life, what he’s talking about that’s going on

in his life that’s a motivation for him to do what he’s got to do.

And you can kind of see with all of them together how he

moves from, you know, he needs money so bad he’s going to rob

people. He needs money so bad he’s going to rob people. [sic] That’s

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not panning out for him. He goes to his dad. His dad’s not going to

give him money.

He finally gets to the point where he’s going to take

somebody’s life. And that goes to prior calculation and design. He

starts thinking about it.

You can see in these texts where he’s talking about that and

he’s talking about the people that are trying to talk him out of it. He’s

not worried about it. He’s got grown men afraid of him. He’s done it

before, he’ll do it again.

So all of this is important, extremely important, for the State in

being able to properly put into perspective the defendant’s intent and

motive and some of the other things that are set forth in 404(B).

It certainly lays the groundwork for the jury to understand the

situation the defendant found himself in and what his motivation was

for doing this.

{¶20} In response, Lavender began by arguing that much of what was being

presented violated Evid.R. 403.

There is no question that much of this what they talked about

is far more prejudicial than it is probative. A lot of it dates back four or

five months prior to. A lot of it is talking about things that is [sic]

inconsistent with their theory. And it’s far more prejudicial than it is

probative. It’s talking about different acts, shooting into cars, and so

forth. Again, that’s extremely prejudicial; far more prejudicial than it

is to show that he had a gun and he uses a gun.

That’s their reason for some of this coming in. So, Judge,

again, the rule is what it is; although relevant, when it’s substantially

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outweighed - - and that’s what we’re dealing with here; a cumulative

exhibit that is far more prejudicial than it is probative.

{¶21} The problem with excising portions of the comprehensive exhibit

became clear as the hearing continued. After discussing a series of messages in

which Lavender claimed that people were trying to kill him (some before the

shooting, some after), the parties and the court turned to a text message in which

Lavender had claimed to have shot into a car with people in it. The trial court

expressed concern with that message, as it did not fit neatly into the state’s theory of

showing Lavender’s increasing desperation for money. The state responded that it

would not strongly object if the court did not admit that text. At that point, counsel

for Lavender interjected:

Well, Judge, what I’m concerned about is - - and this is why I

think the whole exhibit is a problem. If we pull out the shooting in the

car, which I brought to the Court’s attention, that may be the thing

that he did why [sic] people want to kill him.

And that’s why the text messaging and it’s trying to speculate

on what they’re talking about is a problem, because that’s exactly what

you begin to do. And, again, I believe from looking at it and reading it

that that could very well be it.

This conversation was resumed when that particular text message came up during

the court’s review of the individual text messages in the 15 series. When it came up

during the review, the state suggested it was going to withdraw it based on the

previous discussion. At that point, counsel for Lavender interjected, saying

Well, Judge, at this point, if the Court - - because at this point I don’t

think the Court has decided to exclude anything, if the Court is going

to allow all of the rest of it in we just ask that this be included too

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because, again, it’s our belief that this may be what he’s talking about

people may want to kill him for [sic].

{¶22} Although never directly stated, it appears that the trial court

determined that the safer approach was to allow the comprehensive exhibit in and

allow the jury to use it to determine the context of the messages from the 15 series, if

needed. As the court said, “That’s to be argued in front of the jury where they decide

the quality of it.” The court advised counsel to review the comprehensive exhibit that

evening so that any problematic messages could be addressed and, if need be,

redacted.

{¶23} Having decided the general issue of the comprehensive exhibit, the

trial court then went on to individually consider the messages that would be

published to the jury during trial in the 15 series. After discussing the texts generally,

the state gave an overview of the 15 series, which were the texts to which the state

would be directing the jury’s attention during the trial. The state summarized that

the texts, beginning in April, show that Lavender needed money. Initially, Lavender

is complaining about not having money, asking people for money, and asking if

people know of anyone he can rob. The state then said that “at some point it

switches. In about June it switches from trying to rob people to becoming a hitman.”

{¶24} One message at a time, the trial court heard argument from counsel

on each message from 15a through 15qq. Many of the messages were admitted for

the limited purpose of showing motive or intent. Some of the messages, closer in

time to the shooting and purporting to speak directly about the shooting, were

allowed for all purposes. But there were also several messages that the court decided

fell outside the Evid.R. 404(B) exception. The one message regarding shooting the

car would have been excluded, had Lavender not withdrawn his objection to it.

Another text message that just made a reference to guns without any reference to

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money or being in need was excluded. Another message about having adults who

were afraid of him was excluded.

{¶25} The first question for this court to consider is the admission of the

comprehensive set. In his argument to this court, Lavender has argued generally

that the admission of the comprehensive set was error because hundreds of texts

were irrelevant, and many were prejudicial. But Lavender has not pointed to any

text messages in the comprehensive set that were problematic other than messages

that were also in the 15 series. Considering the comprehensive exhibit as a whole,

Lavender has failed to argue how its admission prejudiced him—distinct from the

prejudice he claims to have suffered from the messages in the 15 series. Without a

showing of prejudice, we will not conclude that claimed error in the admission of

evidence requires reversal. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-

2815, 848 N.E.2d 810, ¶ 74; see also City of Toledo v. Gorney, 6th Dist. Lucas No. L-

94-152, 1995 WL 136495, *1 (Mar. 31, 1995) (no reversal when part of testimony was

relevant and part was irrelevant but not prejudicial).

{¶26} Other than what Lavender argues in the 15 series, and what our

independent review of the exhibit has confirmed, there was nothing overtly

prejudicial in the text messages in the exhibit. There were several messages that

were not relevant, as one would expect by taking the entirety of the text message

history from a teenager for a period of six months. But the trial court considered this

issue and discussed the matter with the parties. The state’s concern with not giving

the jury the comprehensive exhibit was that it would be accused of cherry-picking

certain texts, taking them out of context, and ignoring other information. Without

the context of the whole exhibit it would be a difficult assertion to rebut. Even

Lavender’s counsel became concerned when the trial court began to suggest that

certain messages be excised, as it would not allow Lavender to argue from that same

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context. Given this situation, and the manner in which the exhibits were presented,

we cannot say that the trial court did not have a reasonable basis for allowing the

exhibit in, nor can we say that the trial court was clearly wrong. Coupling this fact

with the previous conclusion that the extraneous texts were at worst simply

irrelevant, we conclude that the trial court did not abuse its discretion when it

allowed the admission of the comprehensive exhibit.

{¶27} We now address the specific concerns regarding the messages cited by

Lavender in his brief. The Ohio Supreme Court has directed courts to conduct a

three-step test to consider whether other-acts evidence is admissible. State v.

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 19. “The first

step is to consider whether the other acts evidence is relevant to making any fact that

is of consequence to the determination of the action more or less probable than it

would be without the evidence.” Id. at ¶ 20. The second step is to “consider whether

evidence of the other crimes, wrongs, or acts is presented to prove the character of

the accused in order to show activity in conformity therewith or whether [it] is

presented for a legitimate purpose, such as those stated in Evid.R. 404(B).” Id. “The

third step is to consider whether the probative value of the other acts evidence is

substantially outweighed by the danger of unfair prejudice.” Id.

{¶28} We begin first with the relevance of the 15 series messages. Evid.R.

401 provides: “ ‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” At issue in this

case was Lavender’s motive to kill Lipscomb, which the state theorized was an

increasingly desperate need for money. As the trial court summarized its

understanding:

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I believe their argument is they’re not trying to argue to say

he’s acting in propensity or character - - has that propensity that’s

what he’s doing. They said they’re specifically offering it for other

purpose, including motive or intent, to go along the lines of prior

calculation or design and it wasn’t an accident.

That’s under 404(B) and that’s specifically one of the - - that’s

expressly stated as an exception. So I believe their argument is to say

there’s a man that’s willing to - - who’s desperate and looking to make

money any way he can make money and he’s trying to find a way - -

except for getting a job. And the way he’s willing to do things is he’s

willing to either rob, do whatever else, and it’s escalating to the point

where he’s willing to kill somebody.

Motive is generally relevant in all criminal cases since it is assumed that human

behavior is prompted by a desire to achieve specific results. State v. Curry, 43 Ohio

St.2d 66, 70-71, 330 N.E.2d 720 (1975). In order to show that progression, we

cannot say that text messages were irrelevant to establishing motive.

{¶29} The next argument that Lavender makes is that the text messages

were evidence of his character, and that the state was trying to demonstrate that his

character was such that he was likely to have killed someone for money. Evid.R.

404(A) states that “evidence of a person’s character or a trait of character is not

admissible for the purpose of proving action in conformity therewith on a particular

occasion.” “A hallmark of the American criminal justice system is the principle that

proof that the accused committed a crime other than the one for which he is on trial

is not admissible when its sole purpose is to show the accused’s propensity or

inclination to commit crime.” Id. at 68.

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{¶30} Proving an individual’s motivation is seldom a direct process. And

while it is not an element of either of the crimes for which Lavender was charged, it

was crucial to the state’s case. As the Ohio Supreme Court noted, in a murder case

where the identity of the killer is shown only by circumstantial evidence, motive

becomes an important issue. State v. Franklin, 62 Ohio St.3d 118, 128, 580 N.E.2d 1

(1991), citing State v. Lancaster, 167 Ohio St. 391, 149 N.E.2d 157 (1958).

{¶31} Often times, this circumstantial evidence of a need for money comes

from sources that could otherwise paint a defendant unfavorably. For example, the

Ohio Supreme Court has held that a defendant’s drug addiction is admissible to

prove the defendant’s need for money, providing a motive to rob and kill. State v.

Henness, 79 Ohio St.3d 53, 61, 679 N.E.2d 686 (1997). The Second Appellate District

held that evidence of a civil judgment against the defendant physician was

admissible in a prosecution for trafficking in drugs to prove the motive of a need for

money. State v. Nucklos, 171 Ohio App.3d 38, 2007-Ohio-1025, 869 N.E.2d 674, ¶

70 (2d Dist.). And this court has held that evidence of a defendant’s gambling habits

was admissible to show the defendant’s need for money in a case involving theft in

office, bribery, and attempted bribery. State v. Ridley, 1st Dist. Hamilton No. C-

100301, 2011-Ohio-2477, ¶ 65.

{¶32} We have reviewed the 15 series of exhibits and have determined that

they generally demonstrate the pattern of how desperate Lavender was to make

money, and how that need grew over time. In early April of 2014, Lavender texted an

individual asking if he knew of someone he could rob. Later that month, he texted

his sister asking her if she had any money. In another message, he tells someone

that he has no other support and that he’s been on his own since he was 11. He

relayed that he had been providing for his own needs without being able to rely on

his parents. In a text to his father, Lavender berated him for never supporting him,

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saying that he was tired of holding things in, having to sell heroin and marijuana to

get money to support himself, and that his father “ain gtta worry bou me [sic].” May

shows that his condition had not improved. On May 9, he asked someone if they

knew about someone he could rob. On the 14th, he texted three different individuals

asking for money.

{¶33} In June, Lavender appeared to have had something lined up. On the

15th, he texted someone called Ayana, telling her that he was going to do “sum shit

[sic].” When she asked what he had planned, he replied “This dude [sic].” When

Ayana presses for details, he says he’s “[Fixing to] get [somebody] together [sic],” but

then tells her that he probably wasn’t going to do it that night, but was just preparing

for it.

{¶34} The following day, Lavender texted her complaining about life on the

streets. Ayana tried to encourage him, but he said that he wanted to give up and that

so many people wanted him dead. He said he was afraid that he was not going to

amount to anything and that, while he was trying “[not] to feed into it,” he was

starting to believe it. After more attempts to encourage him, Lavender replied that

his own father had abandoned him and he had taken a life before and had tried to kill

others. He also related a story about how people he had trusted had “set me up n left

me fa dead [sic].” When Ayana told him to take a break from all that, he said that “I

[be] trying it’s hard I [don’t] have a mama to call [when] I’m broke I [gotta] do

[what] I [gotta] do to put money [in] my pocket [sic].” Ayana tried to tell him that

maybe he should try doing something different, but Lavender responded that he had

tried “hella times.” Ayana suggested that maybe Lavender could apply for a job, but

Lavender shoots that idea down “Bay [for real] I’m ok [sic].” After telling Ayana he

just doesn’t care about life anymore, he concluded by telling her “I’m ok [at least] I

[got] my gun :-) [sic].”

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{¶35} That same day, Lavender was texting with another number trying to

find someone to rob. The person he was texting had a person in mind, but Lavender

wanted to make sure that the target had some money because he didn’t “wanna rob

him [if] he broke [sic].” The next day, he texted Ayana that he had just found out he

had a child, who was two years old. On the 19th and 20th, there was a series of

messages between Lavender and another person in which Lavender was trying to get

money to “flip.”

{¶36} The text messages took a turn on June 22. Lavender texted Ayana,

telling her “I finna catch a body.”1 Testimony by Gehring established that this meant

that he was about to kill someone. Ayana desperately tried to talk Lavender out of it,

saying that he must not care about his son or nephew, and that he needed to think

about what he’s about to do. Lavender simply responded that he refused.

{¶37} The next message in the 15 series was a series of texts from Lavender

to someone named Kiara My Queen on July 20—less than two weeks before the

murder. He told her that his life had been hard and that he had been providing for

himself since he was 12 years old. He recalled an incident when he had been grazed

by a bullet and said that “when I was 14 I took two [people’s lives]” and that he had

shot “hella [motherfuckers] * * * [and] robbed hella [people].” He said he regretted

it all. He told her that he remembered going without food and staying outside for

days, and that he sometimes didn’t want to live anymore and that there was no one

to support him. He told the story about how he got kidnapped at age 14 because he

had robbed “a dope boy,” but that he was let go because his captors feared his older

brother. Because he had no one he could count on, he said he had to “do what[ever]

1 The trial court allowed the jury to consider this portion of the message for any purpose, but

limited the rest of the message to consideration for only the purpose of motive. The trial court instructed the jury accordingly.

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it takes to keep money [in] my pocket[, ] shit to wear[, ] and food [in] my stomach

[sic].”2

{¶38} Later that day, he told Kiara that he had not eaten since the day

before. She told him to get something to eat and go home, but he told her he did not

have a home. Then he told her “in a couple weeks or even sooner [than that] I [am

going to be playing] with a check [and you’re] go[nna] have everything baby * * *.”

Gehring testified that “getting a check” meant coming into a sum of money.

Lavender told her that “we can get a car I’m really [going to] spoil [you] * * *.”

{¶39} On July 21, Lavender sent a text message in which he told Kiara about

the time that two girls tricked him into getting into a car by asking for marijuana.

Lavender said that some people then tried to pull him into the car, so he pulled out

his gun and fired nine times. He said that, while this had happened a month ago,

they were now calling him to find out where he was.3

{¶40} The day before the shooting, Lavender sent a message to Kiara saying

that he hoped to die and that his life was over. He also told her his phone was about

to be turned off for not paying the bill. When Kiara told him to pay the bill, Lavender

responded that he could not. He told her that every time he turned around, someone

was asking him for money. He said that he had given his mother $230, had given his

sister $60, and given the mother of his child $100. He later texted to another person

that everything in his life was going wrong.

{¶41} On the morning of the murder, Lavender received a message that his

text messaging had been suspended for nonpayment. The day after the murder,

Lavender received a message from Kiara saying “that’s why we need a car.” He

2 The trial court allowed the jury to consider this message for any purpose, not limiting it to determination of motive. The trial court instructed the jury accordingly. 3 Lavender’s counsel withdrew his objection to this message in a sidebar discussion because, as

the trial court summarized the sidebar discussion later, it “became part of the trial strategy.”

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responded that he was going to save up for one, and that he only needed $2500 for a

black Cadillac.4

{¶42} A week after the murder, a person named Tauda texted and offered to

give Lavender some money on the first of the follwing month. And the texter then

asked why Lavender was jeopardizing his family and risking spending his life in jail

over “bs.” She said that his big brother was already gone and she did not want him to

go too. Lavender responded that he had a son to take care of and that he needed

some “shit” and he needed “everything” and that he would not settle for less. Tauda

responded that he will make things worse if he does something that he will regret

later, and that he risked getting locked up.

{¶43} On August 14, there was another exchange between Lavender and

another number. Lavender told the person that his time was running out. He said

that people wanted him dead and that they were trying to find him through social

media. He said that karma was a “mfer” and that he had this coming because he

chose this life and that there was nothing he can do but “fight back and let it

happen.” After a few more exchanges, Lavender said that he was going to die soon

and that he didn’t want anyone crying for him. He said he was trying his best to keep

calm. He concluded by saying that, every night, he “regret it i wish it never

happened. [sic]”5

{¶44} Another series of messages from that day between Lavender and

someone named Duke were shown to the jury. In that exchange, Lavender wished

the man good luck in his boxing career and said that he wasn’t going to be around

much longer, because people wanted him dead. He said that a friend told him that

4 The trial court allowed the jury to consider this message for any purpose, not limiting it to determination of motive. The trial court instructed the jury accordingly. 5 The state sought, and the trial court allowed, the jury to consider the messages in this paragraph

for the additional purposes of lack of mistake and “how the crime was committed with respect to intent.” The trial court instructed the jury accordingly.

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people were looking for him through Facebook, but the friend didn’t know them and

couldn’t tell who they were because “they blocked him or they deleted [their]

[Facebook accounts].” Duke offered to stand with Lavender, even if it meant

violence. Lavender told him that he was no longer willing to hide or run. Lavender

concluded, “Thats wa Im sayin Im goin out like scarface Word!!! ???? [sic]”

{¶45} The final series of messages, between Lavender and someone named

Zyon, were being sent at about the same time as the messages between Lavender and

Duke. Lavender began by also telling Zyon that people wanted him dead. He then

told Zyon that someone had told him people were trying to find out where he was

and trying to find out what “Shooter’s” real name was. Zyon promised that, if anyone

came after Lavender, they would all “get they head token off [sic].”6

{¶46} Having reviewed these messages, we cannot say that the trial court

abused its discretion in allowing the admission of the text messages to show that

Lavender was becoming increasingly desperate for money. While alternate

arguments can be made as to why a teen would text in the manner that Lavender did,

the state’s theory of what the text messages represent is not wholly unsupported by

the exhibits. The trial court considered this issue at length. It first considered the

issue generally in a pretrial motion in limine relating to the texts. It then conducted

a hearing on the issue the day before Detective Gehring was to testify about the

exhibits. The trial court considered each of the messages in the 15 series and

considered their progression. The trial court excluded some messages that had

nothing to do with Lavender’s need for money or feeling of despair. The trial court

concluded that the state’s theory could be supported by the messages presented, and

6 The trial court allowed the jury to consider the messages in this paragraph for any purpose, not

limiting them to a determination of motive or other Evid.R. 404(B) reasons. The trial court instructed the jury accordingly.

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that it would be up to the jury to determine whether such an explanation was

credible. And as a final gate-keeping measure, the trial court considered the exhibits

a third time as each one was addressed by Gehring and admitted into evidence,

sometimes holding sidebar conferences to discuss some of the exhibits.

{¶47} Having determined that the trial court did not abuse its discretion

when it determined that the text messages were properly admitted for the purposes

set forth in Evid.R. 404(B), we must now determine whether the trial court abused

its discretion when it determined that the probative value of the exhibits was not

substantially outweighed by the danger of unfair prejudice, of confusion of the issues,

or of misleading the jury in violation of Evid.R. 403(A).

{¶48} When the texts were first discussed at trial, the trial court told the

jury:

The evidence that is now being introduced is received into the record

for a limited purpose to show motive and intent. When you consider

this evidence in your deliberations, you are not to use it for any other

purpose, including to prove the character of an accused in order to

show that the accused acted in conformity with that character.

{¶49} An instruction regarding the proper use of the text message evidence

was given 20 times at various points during the course of the presentation of the

messages to the jury.

{¶50} We conclude that the trial court, after having considered the problems

presented with the content of the text messages, fashioned a procedure to minimize

the danger that the jury would consider the evidence for improper purposes such

that the decision that the admission of the messages did not violate Evid.R. 403(A)

was not an abuse of discretion.

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Testimony about Hitmen

{¶51} In this argument, Lavender claims that the trial court erred when it

allowed Detective Gehring to testify as an expert witness on “how contract killings

occur.” For the reasons set forth more fully in our analysis of Lavender’s third

assignment of error relating to “expert” testimony of police officers, we conclude that

this testimony was properly admitted lay option testimony pursuant to Evid.R. 701.

See, e.g., State v. Johnson, 7th Dist. Jefferson No. 13JE5, 2014-Ohio-1226, ¶ 57

(detective’s testimony as to gang activity was permissible under Evid.R. 701 based on

detective’s personal knowledge and experience in the field).

{¶52} We overrule Lavender’s first assignment of error.

Sufficiency and Weight of Evidence

{¶53} In his second assignment of error, Lavender claims that his conviction

for aggravated murder was based upon insufficient evidence and was contrary to the

manifest weight of the evidence. A challenge to the sufficiency of the evidence asks

whether, viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found all the elements of the crime proven beyond a

reasonable doubt. State v. Millikin, 1st Dist. Hamilton Nos. C-030825 and C-

030826, 2004-Ohio-4507, ¶ 15. Review of a weight-of-the-evidence challenge,

however, requires examining the entire record, weighing all the evidence and

reasonable inferences, and considering the credibility of the witnesses to determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way,

resulting in a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997).

{¶54} The state presented testimony from Coulter that he saw Lavender

fleeing from the scene immediately after the shooting. While Lavender was running

away, Coulter saw him wrap what appeared to be a small handgun in his shirt.

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Coulter testified that he knew Lavender from the neighborhood. A composite sketch

created from Coulter’s account bore a striking resemblance to Lavender, and Coulter

was able to pick Lavender’s picture out from a photo array. Additionally, Johnson

testified that he overheard a conversation in which Lavender claimed he was going to

kill Lipscomb for money as part of a contract killing. Johnson also told police that he

had seen Lavender with a small revolver. The fact that the police suspected that the

weapon had been a small revolver was not public information, and Johnson had not

been told this prior to his interview with detectives. Additionally, Lavender’s history

of text messages demonstrated that he was becoming both increasingly desperate for

money and increasingly despondent in general. And then he told someone that he

was about to pick up a body, and that soon his money troubles would be over.

Within days of the shooting, Lavender’s text conversations turned to thinking about

purchasing a car.

{¶55} Admittedly, this was not a “slam-dunk” conviction. But, on this

record, there was sufficient evidence to support the jury’s verdict, and we cannot say

that the jury lost its way when it convicted Lavender of aggravated murder or that his

conviction was a manifest miscarriage of justice. We overrule Lavender’s second

assignment of error.

Ineffective Assistance of Counsel

{¶56} In his third assignment of error, Lavender claims that his trial counsel

was ineffective for several different reasons and that, as a result, he was denied a fair

trial. We disagree.

{¶57} To prevail on an ineffective-assistance-of-counsel claim, Lavender

must demonstrate that counsel’s performance fell below an objective standard of

reasonableness, and he was prejudiced as a result. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio

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St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance will only be

deemed deficient if it fell below an objective standard of reasonableness. Strickland

at 688; Bradley at 142. With regard 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. In other words, “the

defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Id. A reviewing court

must indulge a presumption that counsel’s behavior fell within the acceptable range

of reasonable professional assistance. Strickland at 689; Bradley at 142. With

regard to the second required finding, a defendant is only prejudiced by counsel’s

performance if there is a reasonable probability that the outcome of the proceedings

would have been different but for the complained-of conduct. Strickland at 694;

Bradley at 142.

{¶58} Lavender claims that counsel was ineffective in 16 separate areas. We

will address each in turn.

Voir Dire

{¶59} Lavender first claims that trial counsel was ineffective for failing to

pursue his challenge to the state’s preemptory strike of a juror pursuant to Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He claims that trial

counsel erred when he withdrew the challenge “based on the fact that it was the first

preemptory challenge.” As this court has noted, “the existence of a pattern of

discriminatory strikes is not a prerequisite to a prima facie case or to a finding of

actual discrimination by the trial court.” State v. Walker, 139 Ohio App.3d 52, 56,

742 N.E.2d 1173 (1st Dist.2000); see State v. White, 85 Ohio St.3d 433, 436, 709

N.E.2d 140 (1999).

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{¶60} However, this case is distinguishable from Walker. In Walker, the

only argument that the state raised relating to its decision to strike the African-

American juror was that since he was the first African-American juror struck and

since the state had struck a white juror before that, there had been no pattern

established. Walker at 57. In this case, however, the state had valid race-neutral

reasons for using one of its preemptory challenges. The prospective juror had

indicated that she would have a difficult time following the law and weighing

circumstantial evidence. The prospective juror also said that she would not be a

good juror.

{¶61} In a case from the Second Appellate District, the court faced a claim

that trial counsel had been ineffective for failing to timely issue Batson challenges to

various witnesses. State v. Robertson, 90 Ohio App.3d 715, 720, 630 N.E.2d 422 (2d

Dist.1993). In that case, trial counsel had waited until after the jury had been sworn

before raising the issue. The court first determined that a prima facie case had been

met as the jurors struck by the state were African-American. The court then went on

to state that “[t]he only remaining question is whether a timely Batson challenge

would have succeeded, i.e., was the Batson challenge meritorious.”

{¶62} Engaging in the same analysis, we conclude that the challenge, while

it would have been facially appropriate, would not have succeeded. The record

demonstrates that the state had race-neutral reasons for striking the juror. Counsel,

while incorrect in his understanding of how a Batson challenge is triggered, was not

ineffective for failing to pursue it.

Opening and Closing

{¶63} Lavender next cites six instances during the opening remarks and

closing arguments of the parties in which counsel was ineffective. We will address

each issue in turn.

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{¶64} First, Lavender claims that counsel was ineffective for failing to object

to the state’s comment in opening that the case did not have to be perfect, and that

70 percent was okay. He claims that this statement mischaracterizes the beyond-a-

reasonable-doubt standard of proof.

{¶65} During opening statements, the state began by explaining to the jury

how a trial is like putting a puzzle together. Since different witnesses have different

information relevant to the case, each witness gives different pieces to the puzzle.

The state then went on to say that:

And, more importantly, if you keep that or you use that jigsaw puzzle

reference in the back of your mind or in the back of your pocket, you’re

going to see with respect to the burden of proof that’s imposed upon

the State - - we talked yesterday about how the State doesn’t have to be

perfect, that the jigsaw puzzle - - you all know this from your

experience. As you start putting the puzzle together, if you don’t know

what it is, sometimes you can have 70 percent of the puzzle done and

you know it’s a picture of the Statue of Liberty. You don’t have the

parts here of the sky, but you’ve got that. Sometimes you need more,

sometimes you need less to determine what it is. And so as you listen

to the evidence, it’s important to keep that as a reference.

{¶66} In the context of this opening statement, it is not necessarily the case

that the state is talking about the burden of proof. The analogy seems to be more

about how you can tell what the picture is even when some of the pieces are missing.

The rest of the opening statement talks about how there is no fingerprint evidence,

there is no DNA evidence, there are no shell casings, etc. But, even without that

evidence, the state would present enough to support a conviction.

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{¶67} But even if the analogy were about proof beyond a reasonable doubt,

the state’s comments were not prejudicial. We have previously addressed this exact

issue in State v. Jones, 1st Dist. Hamilton No. C-160826, 2018-Ohio-1130, ¶ 14. In

Jones, this court held:

Generally, “attempts to ‘clarify’ the term by example, analogy,

metaphor, or simile are ill-advised.” State v. Turic, 2d Dist. Greene

No. 2010 CA 35, 2011-Ohio-3869, ¶ 13. But as the Ohio Supreme

Court stated when confronted with a different analogy, “While the

prosecutor’s comments were perhaps inappropriate, we do not find

that the comments denigrated the reasonable doubt standard.

Moreover, the trial court’s ‘reasonable-doubt instructions negated any

misconception by the jury.’ ” State v. Hanna, 95 Ohio St.3d 285,

2002-Ohio-2221, 767 N.E.2d 678, ¶ 78, quoting State v. Lundgren, 73

Ohio St.3d 474, 484, 653 N.E.2d 304 (1995). Even the Turic court,

which cautioned against the use of analogies to further explain

reasonable doubt, found that the defendant had shown no prejudice

because “the trial court instructed the jury that the court would set

forth the law to be applied to the case, and it correctly defined

reasonable doubt shortly after voir dire and in the concluding jury

instructions.” Turic at ¶ 14.

In this case, the jury was given the proper definition of

reasonable doubt in the jury instructions. In light of this proper

instruction, the state’s use of analogy—while ill-advised—did not

denigrate the reasonable-doubt standard. And the comments did not

rise to the level where it is clear that Jones would not have been

convicted in their absence.

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Jones at ¶ 14-15. The jury was properly instructed on the burden of proof in this

case. Therefore, Lavender was not prejudiced by the statements made by the

prosecutor in his opening statement. Counsel was not ineffective for failing to object.

{¶68} Second, Lavender claims that counsel was ineffective for failing to

object to statements made by the prosecutor during his opening statement that

Lavender’s brother was a “hit man” and that killing people was the “family business.”

Additionally, the prosecutor made the comment that Lavender had the nickname

“Shooter” because he shoots people. Lavender argues that the statements were

“grossly prejudicial” and irrelevant to the case, and the failure to object cannot be

excused as trial strategy.

{¶69} Toward the end of his opening statement, the prosecutor discussed

the text messages that were going to be admitted and what they would demonstrate.

MR. PREM: And you got to remember [sic], when you see

these texts, when you see this evidence, this is a guy that really doesn’t

want to talk on the phone to somebody about why his name is Shooter.

He’s less guarded with his family.

And he says, “It’s a lifestyle I’ve chosen.” His sister says at

some point, “I don’t want to lose you like we did our brother.”

And when you see that, at first glance you might think, wow,

maybe the defendant’s brother was killed. The defendant’s brother

wasn’t killed. The evidence is going to tell you that when the sister and

the defendant were talking about that, they’re talking about his brother

who was a hitman, his brother who used a small-caliber revolver - -

MR. HARRIS: Judge, I’m going to object.

THE COURT: Basis?

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MR. HARRIS: His brother was a hitman and the evidence. It’s

speculation, Your Honor.

THE COURT: Well, I’m assuming you’re getting to the point

where you’re going to establish that and connect it up.

Again, I’ll remind you, ladies and gentlemen of the jury,

opening statements are not evidence.

Please continue.

MR. PREM: The evidence is going to show it’s a family

business. This is what he does. This is how he was trained. This is

what he thinks. As sad as it sounds, this is how he lived his life back in

August of 2014 when he chose to take Mr. Lipscomb’s life for money.

{¶70} The reference to Lavender’s older brother as a hitman was important

to the state to explain the text message from his sister in which she said that she did

not want Lavender to wind up like he did. The state had evidence that Lavender’s

brother had been convicted of aggravated murder in a murder-for-hire scheme. This

context gave particular meaning to the statement made by his sister that would have

been lost on the jury otherwise. Additionally, references to Lavender as “Shooter”

and the explanation therefore were important because it tied Lavender to the person

that Johnson knew as Shooter, who was the one he overheard talking about his plan

to kill Lipscomb for money. The offhand remark about murder being the family

business, while hyperbolic and improper, was an isolated one and we cannot say that

Lavender would not have been convicted without it. It was therefore not ineffective

for counsel to fail to object.

{¶71} Third, Lavender claims that counsel was ineffective for failing to

object to the state’s closing argument in which it reviewed the text messages from the

months prior to Lipscomb’s death about robberies, the defendant’s difficult life, and

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selling drugs because, as Lavender argues, the state wanted the jury to “understand

who the defendant is.”

{¶72} We have discussed the text messages and the propriety of their usage

at some length in the previous assignment of error, and the rationale for which the

trial court allowed them to be used. Therefore, we address solely the comment that

the prosecutor made to the jury that he wanted the jury to “understand who the

defendant is.” On the surface, it sounds like the state is attempting to use evidence of

Lavender’s character to prove that he acted in conformity therewith on August 4,

2014—in violation of Evid.R. 404(A).

{¶73} But examining the closing argument overall, we found no improper

comment when considering the context. During closing argument, the prosecutor

quoted a series of texts regarding his need for money and his desire not to rob

someone who doesn’t have any. The prosecutor then went on to say:

Those two statements came in under this Evidence Rule 404B when

the judge said they’re admitted for a limited purpose. And I would

agree with Mr. Harris; you cannot consider the fact that the

defendant’s talking about robbing somebody, the defendant’s talking

about his life is so miserable he’s gonna sell drugs, you can’t allow that

to so infuriate you that you let your bias, sympathy or emotions swing

toward me and you say if he does that he’s got whatever coming to

him. It’s only for a limited purpose for you to understand who the

defendant is.

(Emphasis added.) In context, the prosecutor was attempting to explain the exact

opposite of what Lavender is claiming. The prosecutor properly explained that the

jury could not consider the evidence for the purpose of deciding that he had acted in

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conformity with the mentioned bad behavior. Reading the statement in context, that

is clear. Counsel was not ineffective for failing to object on that basis.

{¶74} Fourth, Lavender claims that counsel was ineffective for failing to

object to the comment made by the prosecutor during closing argument that “the

information the defense relied on in presenting their case was provided to them

through the police officers and not through the investigative work of the defense

attorneys or investigator,” as the state was trying to bolster its credibility.

{¶75} During closing argument, the state was discussing the testimony of

Ramon Davis. During Davis’s testimony, the state had elicited a response from Davis

in which he admitted that he did not see anyone at the scene of the shooting when he

went into the Port-O-Potty. The prosecutor then went on to say:

And the reason that’s important is because when Mr. Harris

was trying to tell you how he cracked this case by using Mr. Davis, Mr.

Davis says - - wherever State’s Exhibit 20A is. You’re going to have it

in the back and you listen to it. Don’t take my word for it. He says - -

he talks about: I was coming out of the Port-O-Potty and another

woman here, she saw the guy running.

I asked him about that. I said: But then you made this

statement - - I’m talking to Mr. Davis. It was another witness here that

seen [sic] the man run.

***

And his answer is Yeah.

So the question is how do you think they got the 911 call [that

Davis made]? How do you think they got the CAD report [that named

Davis]? How do you think they got Mr. Davis’s name?

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Through this great investigator Jonathan Campbell? Or

through these very same police officers that on a daily basis - - he

doesn’t get a bonus for getting the wrong guy convicted of a crime.

And, in fact, you got to see him testify. You got to see Detective

Gehring testify. You got to see Howard Grant testify.

And I know Mr. Harris made a big deal about: These are

professional witnesses, professional witnesses.

{¶76} One of the main prongs of the defense’s theory of the case was that

the state had conducted the investigation poorly. In particular, one of the major

themes was that detectives ignored the information Davis had to offer and that they

downplayed his significance. In this argument, the state was attempting to

demonstrate that the investigators had not concealed the information Davis had to

offer, nor had they completely ignored him. Lavender would not have had the

information about Davis unless law enforcement had provided it. While the state

may have been more spirited than would be preferable, both parties may be “colorful

or creative” during closing argument, provided comments are supported by the

evidence. State v. Brown, 38 Ohio St.3d 305, 317, 528 N.E.2d 523 (1988). The state

was permitted to address the allegation made in Lavender’s closing argument as to

the work of the detectives regarding Davis, and counsel was not ineffective for failing

to object to his argument.

{¶77} Fifth, Lavender claims that counsel was ineffective for failing to object

to comments made by the prosecutor that tended to denigrate defense counsel.

Lavender claims that the prosecutor told the jury that defense counsel was “trying to

manipulate witnesses into saying something untrue, taking a fact and twisting it, and

asking questions of the witness that were unfair.” He also claims that the state

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“accused defense counsel of purposefully misleading the jury by not asking

important, relevant questions of the witnesses.

{¶78} During closing argument, the state was continuing to address the

charges by Lavender’s trial counsel about the detectives being “professional

witnesses” and, in particular, being purposefully nonresponsive to his questions on

cross-examination. During his closing, defense counsel spent a great deal of time

discussing this issue, at one point saying

They’ve come to court specifically for this case. They testify without

notes, so they’ve either reviewed their notes and got prepared or they

went over something, but they can’t remember if the suspect gave

them his phone with the pass code unlocked. They can’t recall that.

Do you believe that? Or is that a professional witness testifying

professionally? I want you to think of how evasive these officers were

when being asked questions.

{¶79} In response to this particular attack on the state’s case, the prosecutor

responded:

That’s important because Mr. Harris brought up these police

officers. The one I remember is Grant, Howard Grant, who’s a

sergeant, a supervisor, been a homicide cop for a long time. Has been

in here before. Has been under the gun before. And he knows that a

defense attorney can take a fact and twist it. Can take something that’s

small and make it big.

And so there was an exchange between Mr. Harris and Sergeant

Grant. Where Harris said: Isn’t it true that most witnesses don’t want

to cooperate with the cops? Remember that? And Grant didn’t answer

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at first. I forget, he equivocated in some way: I can’t say that’s true all

the time.

And Mr. Harris: Isn’t it true that most witnesses don’t want to

cooperate with the cops. And he did it two or three times. He tried to

get the judge to get him to answer the question.

And then I interceded and said: Judge, he’s trying to answer the

question posed.

And then Mr. Harris changed the question slightly: Isn’t it true

that in that neighborhood, most people don’t want to talk to the cops.

And Sergeant Grant said: Well, yeah, that’s true.

So the question was not fair for what he was trying to do; and

that is he’s trying to - - and this isn’t a bad thing; he’s trying to put

doubt in the case, he’s trying to attack the case. That’s his job. That’s

what he’s supposed to do, but he’s not a magician and he’s stuck with

the evidence that the police are able to get.

{¶80} The state’s rebuttal closing was a direct response to defense counsel’s

assertion that the “professional witnesses” were being purposefully nonresponsive to

his questions on cross-examination. The argument was appropriate, and defense

counsel was not ineffective for failing to object to it.

{¶81} Finally, Lavender claims that counsel was ineffective for failing to

object to the state’s comments during closing argument that the prosecutor had told

the witnesses to “tell the truth whether it helps me or hurts me,” which represented

the state’s attempt to improperly bolster their credibility.

{¶82} Again, we find nothing improper for trial counsel to have objected to.

During defense counsel’s closing argument, counsel focused specifically on the two

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witnesses who tied Lavender to the crime. First, counsel attacked Domingo Johnson.

According to defense counsel, Johnson had every reason to lie on the stand to save

himself. He was facing numerous felony-drug charges and was hoping to have them

all dismissed. Similarly, counsel attacked the testimony of Dennis Coulter, the state’s

eyewitness. Because of his involvement in the case, Coulter and his family had been

moved into witness protection. As a result of being in witness protection, their

expenses were being paid by the government. Defense counsel implied that, as a

result of the state paying his expenses, Coulter felt compelled to testify in a way that

the state wanted him to.

{¶83} In response to this argument, the state said:

Remember what Dennis told you that I told him to do. I mean,

I sat down with Dennis. In his testimony he said we sat down, we

reviewed what I’ve said in the past.

I sat down with him and I said to him, like I said to Domingo:

You got one job here. It’s to tell the truth whether it helps me or helps

him.

And I said [to Johnson]: what do you got to do to get my help?

Tell the truth whether it helps me or helps him.

Defense counsel had implied that there was an implicit quid pro quo that existed

between the state and its two witnesses. The state was permitted, as it did, to negate

that implicit attack by going over in closing the terms of the deals. The government’s

payment of Coulter’s expenses while in witness protection was not conditioned on his

testifying in any particular way. And Johnson’s deal with the state relating to his

pending charges was also not contingent on him testifying a certain way. This was a

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proper argument for the state to make, and defense counsel was not ineffective for

failing to object.

Admission of Photographs

{¶84} Lavender next argues that counsel should have objected to the

admission of three photographs depicting him flashing stacks of money on Facebook

and a picture of him making a finger gun gesture to the camera. The state argued

that the pictures of cash were relevant because they were taken from Lavender’s

phone and, as Detective Gehring testified, murder-for-hire participants are usually

paid in cash. On appeal, Lavender argues that there was no legitimate trial strategy

for allowing the pictures in.

{¶85} One of trial counsel’s strategies was to explain away the texts and

social media evidence, as much as possible, by depicting it as the posturing of a

teenager engaged in a segment of urban culture that finds such images and talk

admirable. During the cross-examination of Coulter, for example, counsel for

Lavender questioned Coulter about the culture in some detail, even getting Coulter to

admit that he, too, had posed for such pictures at one time even though Coulter

thought of himself as a “positivity” rap artist. The photos fed into that narrative,

where they were not to be taken seriously, but rather to be seen as a poseur. In light

of this, it was not improper for trial counsel to fail to object to the admission of the

photographs.

Prosecutorial Misconduct – Leading Questions

{¶86} In addition to the above, Lavender makes several additional

arguments relating to counsel’s failure to object to portions of the proceedings that

he claims represent prosecutorial misconduct. In his first argument, Lavender

claims that counsel should have objected to the state’s use of leading questions on

direct examination.

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{¶87} We have examined the three instances cited by Lavender in their

context. All three came from the questioning of a detective on areas of procedure

about which trial counsel had presented evidence that the police work had been

deficient. But these questions in no way coached the witness to give an answer that

was untrue or that the witness would not have otherwise given. See State v. Lott, 51

Ohio St.3d 160, 555 N.E.2d 293 (1990). This was not a situation, like this court has

addressed previously, where the prosecutor had “essentially testified for the state’s

witnesses.” See State v. Lee, 1st Dist. Hamilton No. C-160294, 2017-Ohio-7377, ¶ 31.

Trial counsel’s failure to object to these isolated questions was not ineffective.

Prosecutorial Misconduct – Bolstering Witness Credibility

{¶88} Next, Lavender claims that counsel was ineffective for failing to object

to a series of questions presented to law enforcement witnesses designed to

demonstrate that they had followed proper procedure. Lavender now argues that the

state was improperly “bolstering” its case and improperly shoring up the credibility

of its witnesses. But Lavender cites no legal rule that this violates, and he has made

no reference to any legal authority that stands for the proposition that the state is not

permitted to do so. Trial counsel placed the quality of the police work at issue in this

case, and the state was permitted to respond to that by eliciting testimony about the

quality of the police work. Trial counsel understood that he had placed that at issue,

and therefore, did not object when this evidence was presented. And he was not

ineffective for failing to do so.

Prosecutorial Misconduct – Improper Expert Testimony

{¶89} Increasingly, this court is seeing cases in which criminal defendants

are seeking reversals of their convictions based on the argument that members of law

enforcement have offered testimony at trial as expert witnesses. The argument

generally goes that, since the officer offered testimony beyond the scope of a lay

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person, he is testifying as expert witness, but the state did not file a report pursuant

to Crim.R. 16(K). And since that rule says that “[f]ailure to disclose the written

report to opposing counsel shall preclude the expert’s testimony at trial,” the trial

court erred when the testimony was allowed. (Emphasis added.) Crim.R. 16(K).

{¶90} While Lavender’s argument is somewhat difficult to follow, he seems

to first argue that Police Officer Grant improperly testified as a “quasi expert

witness” on eyewitness identification. Grant was the officer who conducted the

photo array with Coulter. The state asked him what he thought when Coulter first

expressed that one individual looked like the suspect, and then said that another was

the person he saw. Lavender also claims that Grant improperly testified as an expert

witness on the issues relating to pretrial motions to suppress eyewitness

identifications and the rules relating to the disclosure of exculpatory evidence. He

also claims that Grant improperly testified as an expert witness on how homicide

investigations are properly undertaken. Lavender further claims that Detective

Gehring testified as an expert witness on the question of how discovery works in a

criminal prosecution, how people in a high-crime neighborhood behave and speak,

the use of burner phones and trap houses, the workings and identification of

firearms, the proper implementation of a photo array for identification, and the

usefulness of a composite sketch.

{¶91} Recently, this court has addressed the issue of police officers giving

expert testimony based on their experience in law enforcement. In the first case, this

court addressed the question of a police detective who testified as an “expert in

investigating child abuse and neglect.” State v. Hall, 1st Dist. Hamilton No. C-

170699, 2019-Ohio-2985, ¶ 9. In that case, the state qualified the detective as an

expert, the trial court recognized her as an expert, and the detective then testified to

such issues as how children victimized by sexual assault typically behave, the

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credibility of the complaining witnesses, and explanations for lack of physical

evidence. This court concluded that the detective’s opinions constituted expert

opinions and that they fell under the requirements of Crim.R. 16(K). Id. at ¶ 20. We

held that the testimony was not only improper, but that it was also crucial to the

state obtaining a conviction. Id. at ¶ 25. This fact coupled with what this court found

to be “pervasive prosecutorial misconduct during the closing arguments” resulted in

the reversal of the conviction. Id. at ¶ 39.

{¶92} A few weeks later, this court returned to the issue when addressing a

police officer who testified as an accident reconstructionist on the question of

whether a defendant intentionally drove into a pedestrian. State v. Benson, 1st Dist.

Hamilton No. C-180128, 2019-Ohio-3255. In that case, the parties conceded that the

officer had testified as an expert witness, and the state had failed to submit a report

pursuant to Crim.R. 16(K). Id. at ¶ 13. We held that the testimony violated the rule

and that it also was improper because it was an opinion on an ultimate issue. Id. at ¶

15. But this court went on to conclude that the error was harmless, because the other

evidence favoring the conviction was “much more extensive and powerful” than it

had been in Hall. Id. at ¶ 32.

{¶93} Most recently, this court has addressed the question of a police officer

who testified as an expert witness on fingerprint analysis. State v. Johnson, 1st Dist.

Hamilton No. C-170354, 2019-Ohio-3877. The witness testified that the fingerprint

of the defendant matched that of ones found on certain evidence. The state claimed

that the “evidence examination worksheet” that had been provided to the defendant

constituted the expert report. Id. at ¶ 20. The witness testified to her specialized

training, and the methodology she used when collecting and comparing the evidence.

Id. at ¶ 21-23. We found that the defendant had not shown that the state had

violated Crim.R. 16(K) because the “evidence examination worksheet” was not in the

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record, and the defendant could not establish that it failed to meet the Crim.R. 16(K)

requirements. Id. at ¶ 42.

{¶94} By its terms, Crim.R. 16(K) applies to “an expert witness for either

side.” In each of the above cases, there was no question that the witness was giving

expert testimony such that the testimony fell within the parameters of Evid.R. 702

and, ultimately, Crim.R. 16(K). But if a witness is not testifying as an expert, Crim.R.

16(K) does not apply. See, e.g., State v. Heller, 9th Dist. Lorain No. 18CA011304,

2019-Ohio-4722, ¶ 10 (Crim.R. 16(K) does not apply to a case where a doctor is

providing a lay opinion based on personal observation that an infant’s injuries were

not the result of an accident); see also State v. Heineman, 2016-Ohio-3058, 65

N.E.3d 287, ¶ 22 (8th Dist.). But within this recent line of jurisprudence, this court

has not been called upon to address the question of when the testimony of a police

officer becomes expert testimony because that factor was not in contention. The

answer for our purposes lies somewhere between the interplay of Evid.R. 701 and

702.

{¶95} In 2001, the Ohio Supreme Court discussed the interplay between

Evid.R. 701 and 702. State v. McKee, 91 Ohio St.3d 292, 744 N.E.2d 737 (2001). In

that case, the court said:

It is consistent with this emerging view of Evid.R. 701 that courts have

permitted lay witnesses to express their opinions in areas in which it

would ordinarily be expected that an expert must be qualified under

Evid.R. 702. The situation presented in this case fits into this

classification. Although these cases are of a technical nature in that

they allow lay opinion testimony on a subject outside the realm of

common knowledge, they still fall within the ambit of the rule’s

requirement that a lay witness’s opinion be rationally based on

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firsthand observations and helpful in determining a fact in issue.

These cases are not based on specialized knowledge within the scope of

Evid.R. 702, but rather are based upon a layperson’s personal

knowledge and experience.

Id. at 296-297. The Twelfth Appellate District outlined the distinction between lay

and expert opinion as

[a]n “expert witness” is defined as one who is “qualified by

knowledge, skill, experience, training, or education to provide a

scientific, technical, or other specialized opinion about the evidence

or a fact issue. * * * ” Black’s Law Dictionary (8th Ed.2004) 1633. In

contrast, a “lay witness” is defined as one who does not testify as an

expert and is restricted to “giving an opinion or making an inference

that (1) is based on firsthand knowledge, and (2) is helpful in

clarifying the testimony or in determining facts.” Id.

State v. Fread, 12th Dist. Butler No. CA2013-03-045, 2013-Ohio-5206, ¶ 14. The

distinction between lay and expert-witness opinion testimony is that lay testimony

results from a process of reasoning familiar in everyday life, while expert testimony

results from a process of reasoning that only specialists in the field can master.

McKee at 297, fn. 2.

{¶96} As this court has noted, police officers may offer lay opinion

testimony under Evid.R. 701 if it is based on the officers’ perceptions through

experience. State v. Smith, 2017-Ohio-8558, 99 N.E.3d 1230, ¶ 44 (1st Dist.), citing

State v. Martin, 1st Dist. Hamilton No. C-150054, 2016-Ohio-802, ¶ 16. As another

court noted, “[i]t is well-settled that a police officer may testify concerning matters

that are within his experience and observations that may aid the trier of fact in

understanding the other testimony pursuant to Evid.R. 701.” State v. Jones, 2015-

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Ohio-4116, 43 N.E.3d 833, ¶ 108 (2d Dist.), citing State v. Tatum, 10th Dist. Franklin

No. 10AP-626, 2011-Ohio-907, ¶ 17.

{¶97} A number of courts have determined that a police officer’s opinion

testimony may be admissible to explain a fact at issue even when it is based on

specialized knowledge. See Smith at ¶ 45 (officer testified that quantity of drugs

recovered represented an amount intended for distribution rather than for personal

use); State v. Calhoun, 8th Dist. Cuyahoga No. 105442, 2017-Ohio-8488, ¶ 36

(officer’s testimony regarding cell phone image extraction admissible when it was

based on his training and experience as a “certified mobile examiner”); State v. Blair,

2016-Ohio-2872, 63 N.E.3d 798, ¶ 96 (4th Dist.) (detectives properly gave opinion

that an individual did not have the strength to beat the victim to death and did not

exhibit the kind of wounds that administering such a beating would have created);

Tatum at ¶ 17 (detective testified, based on his experience shooting, working at crime

scenes and recovering spent casings, that a large-caliber weapon was involved in

shooting); State v. Meddock, 2017-Ohio-4414, 93 N.E.3d 43, ¶ 21 (4th Dist.) (officer’s

testimony regarding the ingredients and equipment necessary to manufacture

methamphetamine); State v. Rardon, 2018-Ohio-1935, 112 N.E.3d 380, ¶ 58 (5th

Dist.) (testimony from officer regarding thousands of text messages from accused

drug dealer to explain terminology); State v. Johnson, 7th Dist. Jefferson No. 13JE5,

2014-Ohio-1226, ¶ 57 (detective’s testimony as to gang activity was permissible

under Evid.R. 701 based on detective’s personal knowledge and experience in the

field); State v. McClain, 6th Dist. Lucas No. L-10-1088, 2012-Ohio-5264, ¶ 13

(detective’s testimony that quantities of narcotics recovered during the execution of

the search warrant suggested that they were for sale as opposed to personal use was

admissible under Evid.R. 701 as lay person opinion testimony because his testimony

was based on his training and experience).

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{¶98} It is clear that Crim.R. 16(K) requires the admission of expert

testimony before a report is required. We have discussed the distinctions between

expert and lay opinion testimony. And we have also considered under what

conditions members of law enforcement may offer lay opinions based on their

experience and observations that may aid the trier of fact in understanding the other

testimony. Now we turn to the testimony about which Lavender complains.

{¶99} At the time of trial, Sergeant Howard Grant had been a police officer

for 17 years. He had been a supervisor in the Special Investigations Section

investigating homicides for 10 months. Prior to that, he had supervised a number of

other departments. His role was to supervise investigations, including management

of a crime scene, the proper charges to be filed, and preparation of a case for trial.

His main role in this case was related to the administration of the photo array to

Coulter.

{¶100} Lavender first claims that Grant gave improper expert opinion on the

validity of the photo array used in this case, and photo arrays in general. In rebuttal

after Lavender’s trial counsel’s cross-examination, the state asked Grant

Q: When Mr. Harris was asking you about this photo spread

and you said are you asking me what my opinion of the lineup is and

he didn’t ask you that. Have you looked at the photographs of these

individuals?

A: Yes

Q: Is there anything glaring of that sticks out to you as being

obviously noticeable or that points to any one picture that a person

should pick out?

A: No.

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This line of questioning does not call for an expert opinion, nor does it even rely on

Grant’s experience as a police officer. During cross-examination, trial counsel was

trying to get Grant to admit that the photograph of Lavender was much different

than the photographs of the other five subjects in the array. This was not expert

testimony.

{¶101} Lavender next claims that the state elicited expert testimony from

Grant regarding Coulter’s certainty regarding the identification of Lavender in the

array.

Q: Okay. Would you consider that - - you said the number 4

thing, said it looks like him, but you didn’t consider it necessarily an

ID. What did you think about Mr. Coulter’s statement about this

individual?

A: He believed that that person in Number 5 was the person

that he saw commit the homicide.

Q: Okay. Did you stop at that point?

A: I did not stop.

Q: What did you do?

A. My normal protocol is to ask is there anything else you want

to say about this. Once he gave me the additional information about

Number 5 we moved on from it. Took that photograph, put it in my

folder, turned it backward and I presented to him Number 6.

In this case, Grant administered the photo array one picture at a time. Coulter was

shown each photograph and asked if he recognized the person depicted. When Grant

reached Number 4, Coulter said that it looked a lot like the person he saw. When

Grant moved on to Number 5, Coulter said that the person in that photograph was

definitely the person he saw. Contrary to what Lavender has argued, this testimony

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was not offered as an expert opinion on how Coulter performed in the identification

process. Rather, it was a factual recounting of why Coulter would have seemingly

said that two different people looked like the shooter. Regardless, the testimony was

not expert testimony, nor again was it lay opinion testimony based on Grant’s

experience as a police officer.

{¶102} Lavender next complains that Grant gave expert opinion testimony on

motions to suppress witness identification testimony. Lavender claims that the state

then used that testimony later to suggest that a lineup is not suggestive if a court

admits it into evidence. During Grant’s testimony, the state asked

Q: And you know - - do you know as a police officer if a lineup

is suggestive, unfair, doesn’t comply with this Revised Code that he

was talking about, what does the defense through his attorney do at

that point.

A: They would file a motion to suppress that identification.

Q: And - -

MR. HARRIS: Objection, Your Honor.

MR. HARRIS: We submit, Your Honor.

Q: What is that?

A: A motion to suppress would be a hearing that’s done in front

of the judge in the court where the defense attorney and defendant are

there with the prosecutor and they argue whether that photo lineup

was suggestive or inappropriate or unfair.

Q: And if it’s determined that the lineup was suggestive or

inappropriate or unfair what happens to the lineup?

A: It becomes inadmissible in that case.

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Later, during the state’s redirect examination, Grant was asked:

Q: When Mr. Harris was asking you on cross about suggestive

photographs and you said it’s a court issue, what did you mean by

that?

A: What I meant by that it’s for the Court to determine whether

the lineup will be used further in court. If the Court determined that

the lineup was not suggestive or suggestive, the Court will make the

determination, not me as a detective.

Q: So is there a process, to your knowledge, as a matter of law

that allows a defendant who thinks a lineup is suggestive to challenge

it in court?

A: Yes, a suppression hearing.

This testimony represents Grant testifying to an area that would not be something

within the knowledge of a lay person, and it was based on his experience as a police

officer, having participated in photo arrays and having testified in court regarding

them. But we do not agree with Lavender’s characterization of the testimony as

suggesting that if a court admits a lineup its nonsuggestive nature is established as a

matter of law. The state never made that argument, and much of the testimony and

argument regarding the photo array revolved around whether it was suggestive. So,

clearly, the jury could not have been confused on whether that point had been

established.

{¶103} The problem with this line of testimony was that it simply wasn’t

relevant. But even though it was not relevant, counsel was not ineffective for failing

to object unless Lavender was prejudiced by that failure. In this case, the jury was

given the photographs and they were able to determine if the photo array was so one-

sided that picking Lavender from it was a foregone conclusion.

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{¶104} As to Grant, Lavender finally argues that he gave improper expert

opinion testimony about how homicide investigations are generally conducted and

gave improper testimony relating to the discovery process. As to the first issue, this

was proper lay opinion testimony under Evid.R. 701. One of the major thrusts of

Lavender’s defense at trial was that his arrest was the result of sloppy police work.

The state was permitted to contradict that assertion by having Grant, a supervisor of

homicide detectives, testify about the proper conduct of a homicide investigation.

{¶105} As to the discovery line of questioning, the state began by asking

Grant if he knew what discovery was.

A: Discovery means all the information we use to charge a

defendant will be turned over - - is to be turned over to the defendant’s

attorney for review.

Q: And is it your understanding as a police officer that we do

that or furnish that to the defendant through his attorney prior to

going to trial.

A: Yes.

Q: Now, have you ever heard the term or have you ever

engaged in conversation with any prosecutor about evidence favorable

to the defendant. Do you know what that is?

A: Say that again.

Q: Evidence favorable to the defendant?

A: I mean, it is what it is in the statement; if we have evidence

that is favorable to the defendant, we have to turn that over to the

defense.

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Q: Assume for the sake of this hypothetical question that

you’ve got a homicide offense and you have an individual that you have

evidence committed the crime and you have a witness that comes

forward and says that person didn’t do that, somebody else did it.

If that information is inconsistent with your theory of the case,

is that something you disregard or is that something you furnish to the

prosecutor, that this witness said that person didn’t do it?

A: Ideally that information will be passed on to the

prosecutor’s office. You let them know what you have. I think the

evidence will speak for your investigation, but you do pass that

information.

Q: And then do you know what happens to that information

with respect to the prosecutor and the defense attorney?

A: Not off the top - - I mean, I don’t generally deal with that.

That’s more of a prosecutor situation how they handle that.

This testimony was elicited with regard to how the police handled the information

that had been provided to them by Davis. The police did not believe that Davis had

any useful information because he was first reluctant to talk at all, and when he did

he repeated information that he had learned from another source. Counsel for

Lavender relied heavily on the fact that the description given by Davis did not match

Lavender and that the police had improperly disregarded him. The testimony given

by Grant was designed to explain how such evidence is handled, and how defense

counsel learned of the evidence and to dispel the implicit argument that the state had

attempted to bury it. Unlike the testimony regarding the legal significance of a

motion to suppress, this was simply testimony about how certain information is

handled during the course of an investigation, based on Grant’s experience, and was

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helpful to the jury in that regard. Therefore, it fell within Evid.R. 701 and outside the

scope of Crim.R. 16(K).

{¶106} We now turn to the argument that Detective Gehring provided

improper expert opinion testimony. Lavender claims that Gehring gave improper

expert opinion testimony on the question of how discovery works in a criminal

prosecution, how people in a high-crime neighborhood behave and speak, the use of

burner phones and trap houses, the workings and identification of firearms, the

proper implementation of a photo array for identification, and the usefulness of a

composite sketch.

{¶107} At the time of his trial testimony, Detective Gregory Gehring had been

a police officer for a little over 20 years. He has been a homicide detective since

2006. He testified to his training in the police academy, his work as a district patrol

officer, his work in the personal crimes unit, and his transfer to the homicide

division. He also testified to his post-academy instruction.

{¶108} The questions that Gehring was asked about the discovery process

were similar to those asked of Grant. We conclude that they were designed to assist

the jury and properly admitted at trial.

{¶109} Next, Lavender claims that Gehring gave improper expert opinion

testimony regarding how people in high-crime areas behave and how they speak, that

Gehring improperly decoded slang for the jury, and the meaning of terms like

“burner phones” and “trap houses.” Gehring testified that, as a beat officer, he got to

know the people in the neighborhoods and how they communicated. He testified

that the “slang” is a form of language he frequently encounters at work. His

involvement with homicides that were drug-related caused him to learn that

vocabulary as well. This is all the type of experience that is appropriately relied upon

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when giving a lay opinion pursuant to Evid.R. 701. Trial counsel’s failure to object

was not improper.

{¶110} Additionally, Gehring was properly permitted to testify as to how a

firearm operates. Gehring had been a police officer for over 20 years and had fired a

gun “thousands of times.” Similarly, his experience with firearms would allow him to

render an opinion as to whether a particular picture contained an image of a

revolver.

{¶111} As to the appropriateness of the photo array, the state asked if the

array was problematic for being too suggestive, “as a police officer with the years of

experience that you have.” He said that he did not have a problem with the array.

But this series of questions was in response to questions asked of Gehring by defense

counsel on cross-examination, where counsel tried to get Gehring to admit that since

Lavender was the only individual in the array with a “chin strap” beard, the array was

unduly suggestive. This was pure lay opinion testimony, and not necessarily related

to his experience as a police officer. And, as we have indicated previously, the jury

had the opportunity to review the array and reach its own conclusions. Trial counsel

was not ineffective for failing to object on the basis that this was improper expert

{¶112} Finally, Gehring testified that the composite sketch looked a lot like

Lavender, saying that “that’s the closest composite sketch looking to a suspect that I

can remember.” This is opinion testimony in only its loosest sense. The statement

was not being offered to literally establish that it was the best composite picture he

had ever seen. Simply that the composite bore a remarkable resemblance to

Lavender, a fact the jury could see for itself. The fact that Gehring had had a chance

to see many more composite pictures than the average person does not mean that the

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observation was any more informative. It was not opinion testimony, and trial

counsel was correct not to object to it.

{¶113} In his brief, Lavender cites a series of other passages “for additional

improper opinion testimony,” but presents no argument as to them. We have

reviewed them all and find that none were expert opinions which would have

triggered Crim.R. 16(K).

{¶114} Having reviewed every instance cited by Lavender in which he claims

that the state improperly offered expert opinion testimony, we find no instances

where that was the case. We did hold that one section of testimony—relating to the

role of a motion to suppress and its legal significance—was not relevant. But we

further hold that counsel was not ineffective for failing to object because the issue

was one the jury could determine on its own. And, nonetheless, the testimony was

not improper because it was not expert opinion testimony.

Prosecutorial Misconduct – Hearsay Testimony

{¶115} Lavender next argues that counsel was ineffective for failing to object

to the prosecutor’s misconduct through his use of hearsay testimony. We disagree.

{¶116} Lavender first claims that the prosecutor improperly elicited hearsay

testimony from the witness who created the composite sketch based on the

description given by Coulter. Lavender claims that the Ohio Supreme Court has not

addressed the issue. But it has. The court said

A drawing of an alleged assailant sketched by a police artist, a poster

reproduction of that drawing, a ‘mug shot’ of the accused taken after

arrest, and the testimony of police officers as to statements describing

the accused made to them by a prosecuting witness, are admissible

solely to indicate the process by which the accused was identified,

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where that process is under attack, and to corroborate that

identification.

State v. Lancaster, 25 Ohio St.2d 83, 267 N.E.2d 291 (1971), paragraph four of the

syllabus. The testimony was admitted for the purpose of explaining how the image

was produced. Therefore, trial counsel’s failure to object was not ineffective

assistance.

{¶117} Lavender then argues that trial counsel was ineffective for failing to

object to the prosecutor soliciting hearsay testimony from officers who testified to

what Coulter told them he saw the night of the shooting and what Johnson told them

that he had heard. Examining the testimony, it does not seem that the testimony was

elicited for a reason other than for the truth of the matter asserted. Had trial counsel

objected, the objections might well have been sustained. But both Johnson and

Coulter testified at trial, so the failure to object was not prejudicial. Additionally, the

hearsay statements were isolated incidents in a two-week trial, and their impact as a

result was minimal.

Prosecutorial Misconduct – Text Messages

{¶118} Lavender claims that trial counsel was ineffective for failing to object

to the state’s use of unduly prejudicial social media and text messages. The state

introduced the message, which we have previously reviewed, regarding when

Lavender shot into a car. Additionally, there were references on Lavender’s

Facebook page where he referred to himself as “El Chapo.” These kind of messages,

as we have indicated previously, fed into trial counsel’s narrative that all of these

messages and posts were the product of a teenager just putting on the affectations of

a street-wise tough guy, in keeping with the culture in which he was engaged.

Whether that was the best strategy for counsel to adopt is a matter about which we

need not speculate. “Debatable trial tactics generally do not constitute ineffective

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assistance of counsel.” State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857

N.E.2d 547, ¶ 116.

Cross-Examination

{¶119} Next Lavender claims that trial counsel was ineffective for failing to

effectively cross-examine the state’s witnesses, particularly Detective Gehring.

Lavender points to numerous instances in which he claims that Gehring’s answers

were unresponsive. Having reviewed the testimony, it is clear that Gehring and trial

counsel engaged in some heated exchanges. But one of the cores of counsel’s trial

strategy was showing that the state’s “professional witnesses” were actively hostile to

the defense—interested only in seeing Lavender convicted and unwilling to consider

other possibilities and vigorous in their defense of their theory of the case. This was

an extremely compelling trial strategy that became a centerpiece of counsel’s closing

argument. And none of the “nonresponsive” answers were anything that the

detectives had not testified to on direct examination. Counsel was not ineffective for

choosing to take this approach.

Cooperative Informant

{¶120} Lavender next argues that counsel was ineffective for failing to object

to the testimony of Johnson, the cooperative witness. But he has provided no basis

upon which trial counsel could have challenged Johnson’s testimony. And this court

addressed this issue in State v. McCoy, 1st Dist. Hamilton No. C-090599, 2010-

Ohio-5810. In that case, the appellant argued that the trial court erred when it

overruled his “combined pretrial motions for a reliability hearing and for the

exclusion of the cooperating witnesses’ testimony.” The court noted that the test of

witness credibility is cross-examination, and it rejected the suggestion that the

testimony of a cooperating witness is unreliable as a matter of law. Id. at ¶ 20. If

trial counsel had sought to prevent Johnson’s testimony, he would have been

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unsuccessful, and Lavender has not provided this court with a reason for us to

reconsider our holding on the matter.

Eyewitness Identification Expert Testimony

{¶121} Lavender next claims that trial counsel was ineffective for failing to

object to the testimony of the state’s “expert” witness on eyewitness identification for

making equivocal statements about the reliability of the procedure. But this

testimony was taken from the hearing before the trial court on Lavender’s motion to

suppress the identification. The jury was not privy to this testimony, and the Rules

of Evidence do not apply to motions to suppress. See State v. Boczar, 113 Ohio St.3d

148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 17. Trial counsel was not ineffective for

Sentencing Mitigation

{¶122} Lavender next claims that counsel was ineffective for failing to

present effective mitigation evidence. He claims that trial counsel failed to effectively

argue the favorable mitigating information about his past, and did not call any

witnesses to speak on his behalf. Defense counsel’s decision to call or not call a

mitigation witness at sentencing is a matter of trial strategy; debatable trial tactics

generally do not constitute ineffective assistance of counsel. See State v. Pickens, 141

Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 222. While Lavender pointed

out that he had contact with several family members, even a cursory review of the

record in this case would indicate that calling at least some of them would be a bad

decision. And nothing in the record indicates that anyone Lavender listed would

have been helpful to his case. Trial counsel made an argument based on the records

presented to the trial court that, if accepted, would have resulted in a reduced

sentence. The fact that the trial court did not agree does not mean that defense

counsel was ineffective in the attempt.

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Cumulative Effect

{¶123} Lavender finally argues that the cumulative effect of all the above

referenced instances of ineffective assistance of counsel was such that, even if the

singular instances do not represent reversable error, the weight of the total deficient

performance does. After our review, the only arguable instance of ineffective

assistance was when trial counsel failed to object to hearsay testimony from officers

who testified to what Johnson and Coulter told them. Therefore, there is no

cumulative effect to consider.

{¶124} For the reasons set forth above, we overrule Lavender’s third

Prosecutorial Misconduct

{¶125} In his fourth assignment of error, Lavender claims that he was denied

his right to due process because of prosecutorial misconduct. The test for whether

prosecutorial misconduct mandates reversal is whether the prosecutor’s remarks or

actions were improper, and, if so, whether they prejudicially affected the substantial

rights of the accused. State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780

N.E.2d 21, ¶ 45. The touchstone of the analysis “is the fairness of the trial, not the

culpability of the prosecutor.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445,

25 N.E.3d 1023, ¶ 110, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71

L.Ed.2d 78 (1982).

{¶126} Under this assignment of error, Lavender’s entire argument is that

“[t]his trial had numerous instances of prosecutorial misconduct. These are outlined

in [the] first three assignments of error of this brief and incorporated by reference

herein. The prosecutor’s improper comments in closing arguments and the

introduction of inadmissible evidence prejudiced the defendant’s right to a fair trial.”

For the reasons set forth above, we overrule Lavender’s fourth assignment of error.

56 O HIO F IRST D ISTRICT C OURT OF A PPEALS Sentencing

{¶127} In his fifth assignment of error, Lavender claims that the trial court

erred when it sentenced him to life without the possibility of parole. We disagree.

{¶128} This court will only modify or vacate a sentence under R.C.

2953.08(G)(2) if we find clearly and convincingly that either the record does not

support the mandatory sentencing findings or the sentence is otherwise contrary to

law. State v. White, 2013-Ohio-1325, 997 N.E.2d 629 (1st Dist.).

{¶129} In Ohio, when a juvenile faces the sentence of life without the

possibility of parole, the trial court “in exercising its discretion under R.C.

2929.03(A), must separately consider the youth of a juvenile offender as a mitigating

factor before imposing a sentence of life without parole.” State v. Long, 138 Ohio

St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 1, citing Miller v. Alabama, 567 U.S. 460,

132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

{¶130} Having reviewed the record, we conclude that the trial court expressly

considered Lavender’s youth at the time of the offense. In discussing this factor, the

trial court noted that “the victim’s youth is to be considered as a mitigating factor for

purposes of sentencing with the expectation or understanding that the imposition of

a life sentence without the possibility of parole is something not to be entered into

lightly and that the Court needs to be aware of the possible Eighth Amendment

ramifications * * *.”

{¶131} Additionally, Lavender argues that the trial court did not give proper

consideration to the various mitigating factors presented. But we cannot say what

weight was given to the various evidence that the trial court considered, other than to

say that the trial court clearly found that the aggravating factors outweighed the

mitigating factors. As the Eighth Appellate District noted, “We cannot independently

determine the weight given to each factor to arrive at a different sentencing

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conclusion or attempt to divine what factors the trial court deemed more relevant in

the absence of specific findings. The court, having considered what the law requires,

rendered a sentence within the bounds of the law.” State v. Ongert, 8th Dist.

Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 15. We overrule Lavender’s fifth

Eyewitness Identification

{¶132} In his sixth assignment of error, Lavender claims that the trial court

erred when it allowed the testimony regarding Coulter’s identification of Lavender

from the photo array. He claims that the photo array was unduly suggestive, and

that the identification was unreliable. We disagree.

{¶133} The photo array was administered by Detective Grant, who was a

blind administrator. Grant completed and read the blind administrator form to

Coulter. In addition to the photograph of Lavender, the photographs of five other

individuals were placed in separate folders. Grant showed the photos to Coulter one

at a time, gave him as much time as he needed to review them, and allowed him to

make a determination as to whether the person in the photograph looked familiar.

Grant recorded anything that Coulter said about the photographs. Grant did not give

any verbal or nonverbal cues regarding any of the subjects and gave no indication to

Coulter if he picked the person the police suspected. Coulter initially said that the

person in the fourth photograph looked like the suspect, but when he saw the fifth

photograph, he positively identified Lavender.

{¶134} Lavender claims that the photo array was unduly suggestive because

his photo was the only one with a “chin strap” beard. But, his was not the only one

with facial hair generally. And, further, Coulter was instructed at the time to place

little weight on hair or facial hair, as that is a feature of a person’s appearance that

can be easily changed. This court has held that an array was not unduly suggestive

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even when only the suspect had a curly hairstyle, where the images are otherwise

similar. See State v. Taylor, 1st Dist. Hamilton No. C-020475, 2004-Ohio-1494.

{¶135} This court has independently reviewed the six images. While

Lavender’s photograph is the only one with a “chin strap” beard, others had facial

hair and none of the images stood out remarkably. Neither the array itself nor the

manner in which it was administered was unduly suggestive.

{¶136} We also reject the argument that the identification was improper

because Coulter had positively identified someone other than Lavender before

identifying him. When shown photo four, Coulter said that “that looks more like

him.” In saying that, Coulter was saying that photo four looked more like the

perpetrator than the first three did. That was not a positive identification. So, when

he got to the fifth photo and said “that looks exactly like him,” that was Coulter’s

positive identification of Lavender. The trial court did not err when it allowed the

testimony of the identification to be presented to the jury. We overrule his sixth

Transfer to Adult Court

{¶137} In his seventh assignment of error, Lavender claims that the juvenile

court erred when it determined, after conducting an amenability hearing, that

Lavender’s case should be transferred to the general division of the common pleas

court for trial as an adult. But the trial court complied with the statutory

requirements, and the record does not support the conclusion that the trial court

abused its discretion.

{¶138} The determination of whether a child is amendable to rehabilitation

such that justice requires the juvenile court to retain jurisdiction over a case is left to

the sound discretion of the juvenile court. State v. Amos, 1st Dist. Hamilton No. C-

150263, 2016-Ohio-1319, ¶ 38. “When determining whether a child is amenable to

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treatment within the juvenile system, the juvenile court must consider the factors

weighing in favor of and against transfer, as outlined in R.C. 2152.12(D) and

2152.12(E), as well as any other relevant factor.” State v. Marshall, 1st Dist.

Hamilton No. C-150383, 2016-Ohio-3184, ¶ 14.

{¶139} R.C. 2152.12 is silent with regard to how a juvenile court should weigh

the factors in R.C. 2152.12(D) and (E). Thus, the juvenile court has the discretion to

determine how much weight should be accorded to any given factor. See State v.

Morgan, 10th Dist. Franklin No. 13AP-620, 2014-Ohio-5661, ¶ 37. “As long as the

court considers the appropriate statutory factors and there is some rational basis in

the record to support the court’s findings when applying those factors, [this court]

cannot conclude that the trial court abused its discretion in deciding whether to

transfer jurisdiction.” State v. West, 167 Ohio App.3d 598, 2006-Ohio-3518, 856

N.E.2d 285, ¶ 10 (4th Dist.).

{¶140} The record indicates that the juvenile court considered the

appropriate statutory factors and identified those it found to be significant. Of note

was the physical harm caused, the use of a firearm, Lavender’s maturity, and the

safety of the community. The fact that the juvenile court noted, at one point, “five

years in exchange for a life was insufficient” does not mean that the trial court did

not apply the proper standard. This is especially true in light of the fact that the

juvenile court expressly stated that it had. On this record, we cannot say that the

trial court abused its discretion. We overrule Lavender’s seventh assignment of

error.

Cumulative Error

{¶141} In his eighth assignment of error, Lavender argues that the

cumulative effect of the errors outlined in the previous assignments of error require

reversal. Pursuant to the doctrine of cumulative error, “a conviction will be reversed

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when the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of the errors does not individually

constitute cause for reversal.” State v. Pyles, 7th Dist. Mahoning No. 13 MA 22,

2015-Ohio-5594, ¶ 103, citing State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623

(1995). However, the cumulative-error doctrine “does not apply to cases that are not

marked by multiple instances of harmless error.” State v. Banks, 10th Dist. Franklin

No. 03AP-1286, 2005-Ohio-1943, ¶ 23, citing Garner. We have not found multiple

instances of harmless error in this case. We overrule Lavender’s eighth assignment

of error.

Conclusion

{¶142} Having considered and overruled all eight of Lavender’s assignments

of error, we affirm the judgment of the trial court.

Judgment affirmed.

MYERS, J., concurs separately. BERGERON, J. dissents.

MYERS, J., concurring separately.

{¶143} I write separately because I believe there were some errors in the

trial that need to be addressed. First, I agree with the dissent as to a few of the 15

series text messages. I would find that admission of the text messages stating that

when Lavender was 14 he took two people’s lives, and he had shot and robbed a lot of

people, were not admissible under Evid.R. 404 and should have been excluded. And,

had defense counsel not withdrawn his or her objection, I would also find

inadmissible Lavender’s text that he had shot into a car. But I find that in light of the

other evidence produced at trial, and the instructions of the trial court, any error was

harmless. In other words, the outcome would have been the same.

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{¶144} I also would find that counsel was deficient in not objecting to some

of the prosecutor’s statements, in particular, statements about the “family business”

of being a hit man and comments that the text messages were used for a limited

purpose—“to understand who the defendant is.” As to the latter, that is exactly what

the statements could not be used for. And for the same reason, I would find these

comments by the prosecutor improper. But again, considering all the evidence,

Lavender cannot establish that he was prejudiced by this deficiency.

BERGERON, J., dissenting.

{¶145} I respectfully dissent and would find that the admission of state’s

Exhibit 16(A), the photograph with Mr. Lavender holding a gun aimed at the camera,

and various texts in the state’s Exhibit 15 (the series of texts messages), constitutes

reversible error. Ostensibly admitted under Evid.R. 404(B), to demonstrate motive

and intent, admission of such evidence should be strictly construed against the state

and conservatively applied by trial courts. State v. DeMarco, 31 Ohio St.3d 191, 194,

509 N.E.2d 1256 (1987). The evidence here was probative of neither motive nor

intent, and should have never been presented to the jury. And even if this evidence

could survive scrutiny under Evid.R. 404(B), I would find that it fails an analysis

under Evid.R. 403 given its lack of relevance and its corresponding prejudicial

nature. See State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d

1278, ¶ 20. Because the trial court did not properly evaluate this evidence, it abused

its discretion in such a manner that tainted the entire trial.

{¶146} From the opening bell of this trial, the state endeavored to paint Mr.

Lavender as an unsavory character. Calling Mr. Lavender a “gangster,” the state

insisted that he was destined to become an assassin: “The evidence is going to show

it’s a family business. This is what he does. This is how he was trained. This is what

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he thinks.”7 The photograph, according to the state, “exhibit[s] who he is.” Coupled

with the text messages, these exhibits played a pivotal role in forging a damning

portrait of Mr. Lavender in the jury’s mind, unrelated to the charged offense.

A.

{¶147} The state’s theory of the case was that Mr. Lavender, in his

desperation for money, agreed to engage in a murder-for-hire plot that culminated in

Mr. Lipscomb’s death. The state posited that various text messages illuminated this

monetary despair, which allegedly revealed an “escalating” need for cash. Admitted

here to show motive and intent, this type of evidence must “be temporally and

circumstantially connected to the operative facts of the offense alleged.” State v.

Griffin, 142 Ohio App.3d 65, 72, 753 N.E.2d 967 (1st Dist.2001). Spanning

approximately four months, the messages disclose conversations ranging from

asking family for money to attend a festival to discussing robberies (past and

contemplated), drug dealing, and prior killings and/or shootings. Noticeably absent

is any indication of Mr. Lavender’s involvement in a lucrative teenage assassin

enterprise. Far from constituting a timeline of desperation, the texts merely served

to cast Mr. Lavender as a “bad actor,” capable of committing other violent crimes and

therefore likely to kill for money. See State v. Hart, 2018-Ohio-3272, 118 N.E.3d

454, ¶ 41 (8th Dist.), quoting State v. Sargent, 2015-Ohio-704, 29 N.E.3d 331, ¶ 31

(6th Dist.) (admission of other acts evidence erroneous despite limiting instruction,

when other acts were “ ‘very similar to the charged offense or of an inflammatory

nature.’ ”). The texts, with a mixture of teenage angst and perhaps braggadocio,

chronicle a series of crimes allegedly committed or contemplated by Mr. Lavender:

7 I also agree with Judge Myers regarding the ineffective assistance in failing to object to certain

comments.

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 April 2014 text where he admits to “sell[ing] heroin [and] weed” for

money (in other words, he’s a drug dealer);

 May 2014 text asking a friend if he knows anyone that Mr. Lavender

could rob;

 June 2014 text related to a marijuana transaction;

 June 2014 text in which he admits that he “took a [] life befo[re]” and

that he “tried to kill” additional people;

 June 2014 text discussing a potential robbery target;

 July 2014 text admitting that “when I was 14 I took two [peoples’]

life’s [sic]” and that he “shot” numerous people and “rob[b]ed”

numerous others;

 July 2014 text regarding a robbery he committed at 14 involving a

drug transaction; and

 July 2014 text regarding an aborted drug transaction in which he

admitted to shooting nine times at a car.

None of these texts suggest Mr. Lavender’s involvement in a murder-for-hire

scheme, or give any inkling as to his “motive” or “intent” to perpetrate such an

offense.8 Instead, these reflect admissions of past crimes (drug transactions, killings,

and robberies) as well as contemplated crimes (robberies and drug-related).

{¶148} Interspersed within these texts are various texts expressing a desire

for money (such as asking for $25 to attend a “festival [i]n colerain” or bemoaning

the fact that his cell service was about to be cut off). The state’s insistence that this

all shows that he needs money is an overreach—many (if not most) criminal offenses

8 If we engaged in a text-by-text review of each missive, I would probably find a handful of the texts closer in proximity to the shooting admissible. But this would not alter my overall analysis, because those few texts are more than drowned out by the significance of the inadmissible ones.

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are committed because someone wants money. Exploiting a defendant’s poverty or

desire for money as a justification to parade a variety of past and contemplated

misdeeds before the jury runs roughshod over Evid.R. 404(B) and poses grave risks

to the integrity of criminal trials. Regardless, even if the texts about money showed

motive here, those texts could have been selectively presented to the jury without all

of the concomitant criminal admissions. Take his admission in different texts that he

killed and shot people previously—those texts have nothing to do with money,

nothing to do with any murder-for-hire scheme, and nothing to do with the offense

at hand (the texts predated the death of Mr. Lipscomb). They thus provided nothing

useful to the jury other than serving as a vehicle to “prove the character of a person

in order to show action in conformity therewith.” Evid.R. 404(B). He’s a heartless

killer—so the theory goes—and that proves he killed here too. But Evid.R. 404(B)

was designed to avoid exactly that.

{¶149} Dripping with prejudicial effect, the texts were also inadmissible (at

the very least) under Evid.R. 403. Mr. Lavender stood trial charged with a contract

killing, and the texts enabled the state to brandish evidence that he had engaged in a

range of illegal behavior (particularly prior shootings and killings) unrelated to the

death of Mr. Lipscomb. This is precisely the type of unfairly prejudicial evidence that

Evid.R. 403(A) excludes because it “ ‘appeals to the jury’s emotions rather than

intellect’ ” and invites the jury to rely on an improper basis for its decision. See State

v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 24, quoting

Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001);

State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 89 (noting the

danger of unfair prejudice refers to evidence which suggests a decision on an

improper basis).

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{¶150} The majority quotes the state’s justification for the texts as turning

on a timing question: “at some point it switches. In about June, it switches from

trying to rob people to becoming a hitman.” But this is doubly misguided. First, if

June is the real lynchpin, then what justification exists to wade through all of the

prior texts (including scores I have not summarized here)? Second, and more

importantly, it rests upon a serious mischaracterization—one can search the record

in vain for any substantiation of that point. Texts about acting as a hitman might

well be admissible on this record, but the trouble is there aren’t any. The state

jumped in with both feet on the hitman theory, but it can’t bootstrap admissibility by

conjuring up nonexistent evidence.

B.

{¶151} Similarly, the state successfully introduced the photograph depicting

Mr. Lavender holding an object “consistent” with the shape of a revolver in his left

hand. Based on testimony from the police’s informant, Mr. Johnson, that he

overheard Mr. Lavender discussing the upcoming hit and saw him in possession a

revolver, the state then hypothesized that a .22 caliber revolver must have been the

murder weapon (despite never actually recovering any evidence beyond the caliber of

the bullet). In the state’s calculus, the “gun” depicted in Mr. Lavender’s left hand

became vital because it could have used .22 caliber bullets, could have been a

revolver, and which could have been the murder weapon.

{¶152} In the same photograph, however, Mr. Lavender also stands, grim-

faced, right arm outstretched, pointing an unrelated gun directly at the camera. The

alleged revolver in his left hand is barely perceptible, overshadowed by the much

larger gun aimed at the camera. Words really cannot do this exhibit justice, so I

include it below:

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{¶153} The prejudicial effect of this photograph needs little elaboration. At

trial no one disputed that the gun (in fact a pellet gun) facing the camera was

unrelated to the murder. Based on the attenuated nature of the photograph, the

state’s introduction of such unrelated weapons evidence merely portrayed Mr.

Lavender “as a person of violent character who had acted in conformity with his

propensity to kill[.]” State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d

821, ¶ 48; compare State v. Gordon, 2018-Ohio-2292, 114 N.E.3d 345, ¶ 79 (8th

Dist.) (admission of evidence that defendant carried a gun was error when alleged

gun was never recovered and only speculation that a revolver was used in the killing)

with State v. Connally, 10th Dist. Franklin No. 16AP-53, 2016-Ohio-7573, ¶ 30, 34

(admitted photographs highly relevant when gun matching description of the gun

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used to commit the crime appeared, despite the fact that another unrelated gun

appeared in the photo).

{¶154} If you asked the average person on the street what that photo

depicts, they would probably leap to the state’s conclusion—a “gangster”—and agree

that that person needs to be locked away. Not blind to this point, the state assured

the jury that this photo (and a couple of others) reveals “who he is.” It is little

wonder the state’s zeal to highlight this picture to the jury, but Evid.R. 403 exists to

avoid prejudicial scenarios such as what occurred here. Mr. Lavender should not be

convicted because he looks the part, but rather because the evidence proves that he

committed the offense beyond a reasonable doubt.

C.

{¶155} To be sure, as the majority points out, the trial court gave several

limiting instructions. But there are two things wrong with this. First, as noted

above, many of the worst texts had nothing to do with any motive or intent—they just

confessed to awful crimes. Assuring the jury that the text is “being offered for the

limited purpose to show motive and intent” (in the words of the trial court) would

only hopelessly confuse the jury because it is probative of neither. Moreover, the

inherently prejudicial nature of the photograph and text messages could not be cured

by a limiting instruction, regardless of how many times it was incanted. See State v.

Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, ¶ 39 (noting that

limiting instruction was insufficient to overcome the prejudice of the improperly

admitted evidence); State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d

1181, ¶ 50 (French, J., concurring in judgment only) (explaining that a limiting

instruction does not guarantee admissibility when the danger of unfair prejudice

substantially outweighs the evidence’s probative value); 1980 Staff Note, Evid.R. 105

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(“[I]f there would be danger of unfair prejudice, evidence * * * should not be

admitted even with a limiting instruction.”).

{¶156} Without the text messages and photograph, the remaining evidence

was reduced to the eyewitness identification and the information provided by Mr.

Johnson. And each had credibility issues. Mr. Coulter’s description of Mr. Lavender

varied substantially from Mr. Lavender’s actual physical appearance. Mr. Coulter

described a perpetrator with blue eyes and standing approximately 5 feet 7 inches or

5 feet 8 inches tall; Mr. Lavender has brown eyes and stands over six feet tall. And

his description of the perpetrator’s skin admittedly varied, as at times the perpetrator

was light-skinned, dark-skinned, and brown-skinned. Mr. Coulter also described

observing the perpetrator from a “couple of feet” away, when pictures of the scene

revealed the impossibility of that characterization. As to Mr. Johnson’s testimony,

questions of bias were self-evident. Testimony adduced at trial revealed that Mr.

Johnson divulged the information regarding the identity of Mr. Lipscomb’s killer

only after his apprehension for suspected criminal activity, and for which no charges

were ever filed. Mr. Johnson also appeared to have quite a résumé of cooperating

with the police in order to avoid charges or secure more lenient sentencing on his

myriad outstanding charges. In other words, he seemed like a professional snitch—

always in the right place at the right time to overhear inculpatory remarks by others.

{¶157} While the jury was free to weigh this testimony as they saw fit, the

admission of the above evidence certainly reassured the jury that Mr. Lavender was a

“bad actor” (or a “gangster,” as the state posited) and interfered with the jury’s ability

to properly weigh the testimony from Messrs. Coulter and Johnson, ultimately

allowing them to accord greater weight and credibility to the witness identification

and informant. See State v. Walls, 2018-Ohio-329, 104 N.E.3d 280, ¶ 45 (6th Dist.)

(improper admission of expert testimony inhibited jury’s ability to properly weigh

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the evidence). This danger of “a potential for prejudice with respect not only to the

weighing of the evidence but also the creation in the jury’s mind of an urge to punish

for past acts” is precisely the justification for excluding such evidence. Griffin, 142

Ohio App.3d at 71, 753 N.E.2d 967. As we explained in Hall, where the improper

evidence “likely colored the jury’s ability to properly weigh the credibility of the

witness[es],” we cannot have “confidence that the error did not impact the outcome.”

State v. Hall, 1st Dist. Hamilton Nos. C-170699 and C-170700, 2019-Ohio-2985, ¶

24-25; see State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶

25-29 (appellate court must be convinced that the error was harmless beyond a

reasonable doubt).

{¶158} And the error is amplified by the prosecution’s trial strategy to paint

Mr. Lavender as a violent criminal desperate to kill for money. See Griffin at 79

(magnitude of prosecution’s use of other acts evidence amplified when “was not

isolated within the context of the trial, but was part of what was manifestly a strategy

to portray [the defendant] as an emotionally unstable person to be feared for his

violent propensities”); id. at 85 (“[I]t would be disingenuous to suggest that the

evidence against [the defendant] was so overwhelming that there was no reasonable

possibility that the improperly admitted other-acts and character evidence did not

contribute to [the defendant’s] conviction.”); State v. Johnson, 71 Ohio St.3d 332,

341, 643 N.E.2d 1098 (1994) (irrelevant and unduly prejudicial evidence “was not

harmless error, especially in light of the weakness of the evidence in this case and the

state’s undue reliance on impermissible character evidence in its prosecution[.]”).

{¶159} Therefore, I would find that the admission of the photograph and

text messages constituted errors that cannot be dismissed as harmless. Before we

send this defendant to prison for the rest of his life, I would afford him a new trial

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limited to evidence probative of whether he committed the murder at hand and free

from the taint of improper character evidence. I respectfully dissent.

Please note: The court has recorded its own entry on the date of the release of this opinion.