State v. Lemaster

2025 Ohio 5621

• Court: Ohio Court of Appeals
• Decided: December 9, 2025
• Docket: 24CA6
• Status: Published

Opinion

[Cite as State v. Lemaster, 2025-Ohio-5621.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY

STATE OF OHIO, : : Case No. 24CA6 Plaintiff-Appellee, : : v. : : JOSEPH LEMASTER, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : RELEASED: 12/09/2025 ______________________________________________________________________ APPEARANCES:

Kyle C. Henderson, Logan, Ohio, for appellant.

James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for appellee. ______________________________________________________________________

Wilkin, J.

{¶1} This is an appeal of a Meigs County Court of Common Pleas judgment

entry in which Joseph Lemaster (“Lemaster”) was convicted of abduction and

misdemeanor assault. On appeal Lemaster raises five assignments of error,

contending that: 1) his convictions are against the manifest weight of evidence; 2) there

was insufficient evidence to support the convictions; 3) he suffered prejudice when the

prosecutor made improper comments during closing arguments; 4) he was denied due

process because of a Brady violation; and 5) he received ineffective assistance of

counsel during trial. For the following reasons we find no merit to any of these

assignments of error and affirm the trial court.

BACKGROUND

{¶2} On October 11, 2023, a Meigs County grand jury returned a two-count

indictment for an incident that occurred on July 9, 2023, alleging that Lemaster Meigs App. No. 24CA6 2

committed two offenses in which S.S. was the victim: Count 1, abduction, in violation of

R.C. 2905.02(A)(2), a third-degree felony, and Count 2, assault, in violation of R.C.

2903.13(A), a first-degree misdemeanor.

{¶3} The parties had motion practice and several pretrial hearings were held.

In particular, on April 23, 2024, the State filed a Rule 404(B) notice indicating its

intention to use other crimes, wrongs, or acts. The specific testimony involved a phone

call that Lemaster made during the course of the indicted conduct. The State alleged

that Lemaster called P.R., the victim of a previous offense (“P.R.”), and told her that he

was going to beat S.S. like he had beat her and then kill S.S. According to the State’s

notice, this information had been provided in discovery to the defense on December 7,

2023. The State contended the purpose of this testimony was to show Lemaster’s

intent, plan, knowledge, and lack of mistake or accident in the instant case.

{¶4} Defense counsel filed an objection based on Evid.R. 401 (relevance);

Evid.R. 404(B) (not offered for non-propensity purpose); and Evid.R. 403 (the probative

value of the evidence was more prejudicial than probative). Lemaster also requested

an evidentiary hearing on the issue.

{¶5} On June 18, 2024 (the same day of, but prior to, the jury trial), the trial

court held a hearing in which the State called S.S. as a witness. At that hearing, S.S.

detailed a conversation that occurred during the indicted offenses. According to S.S.,

Lemaster called P.R. on the speaker so S.S. could hear, and demanded P.R. tell S.S.

what he did to her. Further, Lemaster stated he would do the same to S.S. Also,

according to S.S., Lemaster threatened to kill her if P.R. didn’t show up within 30

minutes. During that phone call, P.R. said that Lemaster broke her collarbone and Meigs App. No. 24CA6 3

busted out her eye socket to the extent that she had to go to physical therapy for a

while.

{¶6} After the defense’s cross-examination of S.S., and the trial court’s asking

for further argument from the parties, the trial court found that the statements were

permissible because they were statements made during the act itself. The trial court

also ruled that both Lemaster’s and P.R.’s parts of the conversation could be admitted

through S.S.’ testimony.

{¶7} The jury trial commenced that same day and lasted until June 19, 2024.

The State called two witnesses: Anthony Woods (“Woods”), Meigs County Sheriff’s

Deputy, and S.S. The State also entered as exhibits photographs of S.S. from the

incident and body cam footage showing the interior of the camper where most of the

incident took place. The defense called no witnesses but entered several exhibits.

{¶8} Woods was the first to testify. Woods explained that, after being notified

by another deputy about a reported domestic matter, he spoke with S.S. and took S.S.’s

written statement. Woods also observed S.S. had a bitemark on her arm and a knot on

her head. Woods took pictures of these injuries. After Woods took S.S.’s statement

and pictures of the injuries, he took S.S. back to the location of the incident to retrieve

her property at her request. He and other law enforcement (Deputies Tre Wallace and

Ben Adams) wanted to ensure S.S.’s safety while she retrieved her belongings.

{¶9} During Woods’ testimony, the State inquired, as follows:

PROSECUTOR: And where exactly is this property?

WOODS: On one twenty-four (124). Uh, right out of Syracuse.

PROSECUTOR: Okay. Between Syracuse and Racine? Meigs App. No. 24CA6 4

WOODS: Yeah. There’s like a little . . . there’s a trailer park, kind of.

PROSECUTOR: Okay.

WOODS: Camper park.

PROSECUTOR: And that’s where the camper was?

WOODS: Right.

{¶10} Woods testified also that S.S. retrieved her cell phone, a charger, and a

few clothes when he took her to the camper.

{¶11} On cross-examination, Woods testified about the extent of the

investigation, and was asked by defense counsel about any differences in S.S.’s oral

versus her written statements to Woods. Defense counsel also asked several questions

about the photographs and the extent of S.S.’s injuries. In addition, defense counsel

cross-examined about some omissions in Woods’ report. The defense cross-examined

Woods about the fact S.S. reported Lemaster would strike her “every few minutes” and

also alleged the incident occurred from 11:00 p.m. to 1:30 a.m., such that she would

have suffered multiple blows if her statement were literally true. Further, the defense

pointed out that the victim did not report the incident until over 14 hours later.

{¶12} The defense also asked Woods whether he had noticed signs of a

struggle in the camper, and Woods said if he had, he would have noted them in his

report. Further, the defense inquired as to why Woods did not call P.R. to ask her about

the incident even though S.S.’s statement to police mentioned that Lemaster had called

someone with P.R.’s first name during the incident.

{¶13} On redirect, Woods clarified that S.S.’s statement said Lemaster “would

get up angry every few minutes and hit me open-handed,” and the statement also Meigs App. No. 24CA6 5

included S.S.’s describing the incident by saying that Lemaster “blocked me from

getting to the door to leave” which went on from about 11:00 p.m. to 1:30 a.m. Woods

also explained that a part of the report did contain an allegation of physical harm, and

the photographs documented that injury.

{¶14} S.S. testified next. According to S.S., Lemaster and she met on a dating

app and had begun dating that June prior to the incident. S.S., who lived in Urbana

(over two hours driving distance from Pomeroy), began to spend weekends at

Lemaster’s camper in Meigs County on Maple Wood Lane, after the two had gone on a

few dates.

{¶15} According to S.S., the camper was located off Maple Wood Lane, in

between Racine and Pomeroy. The State asked S.S. if the camper was located in

Meigs County, and S.S. responded, “[a]s far as I understand, yes.” S.S. also, however,

went on to explain that she had never been to Meigs County before staying with

Lemaster and did not know where the Syracuse or Racine police departments were.

{¶16} During direct examination, S.S. described a long day where she had gone

with Lemaster to the state park and also visited Lemaster’s family. The pair had not

eaten all day and decided to get dinner rather late (around 9:30 or 10:00 p.m.) at Taco

Bell. While in the drive-through at Taco Bell, Lemaster began getting upset and ranting

about S.S. putting another man before him, saying S.S. needed to “watch her tone.”

After several words were exchanged, S.S., who was driving the vehicle, decided to take

Lemaster back to the camper and she would return to her home in Urbana. But first,

S.S. wished to retrieve her belongings. Meigs App. No. 24CA6 6

{¶17} When the couple arrived at the camper, Lemaster went inside and she sat

in the car. S.S. tried to decide whether she was going to get her things that still

remained in the camper, which consisted of a bag of clothes and her purse. She had

kept her wallet, keys, and phone in the car at that point.

{¶18} She decided she wanted to retrieve her personal items from the purse.

So, she went to the door of the camper and tried to go inside, but the door was locked.

After more words were exchanged, she asked Lemaster if he would hurt her if she went

into the camper, and he said “no, I won’t hurt you[,]” therefore, S.S. went inside.

{¶19} After S.S. went into the camper, Lemaster called P.R. on the phone so

that S.S. could hear the conversation. Lemaster told P.R. to tell S.S. what would

happen if S.S. put another man before him, and P.R. eventually responded that

Lemaster broke her collarbone and busted out her eye socket. P.R. also said she had

to go to physical therapy for some time. Also, according to S.S., Lemaster told P.R. that

P.R. better get there, because if she didn’t, he was going to “kill” S.S.

{¶20} At this point, S.S. was “shaking,” and “really, really scared.” Lemaster

closed all the blinds, locked the front door, tossed S.S.’s cell phone away from her, and

then backhanded S.S. across the face. S.S. then described several instances where

Lemaster struck her while calling her degrading names. He hit her on the top of the

head, and on the side, and she put her hands up to protect herself. He also “ripped her

hair out,” and told her to sit down if she tried to stand up.

{¶21} S.S. tried to call 911 on her watch but could not manage to do so.

Lemaster also broke the face of S.S.’s watch when she was covering her face to protect

herself. She said, “please just let me leave,” and he said, “no, you’re not fucking going Meigs App. No. 24CA6 7

anywhere,” then struck her again. During the incident, he said he could rape her

daughter, rape her mother, kill them both, and kill her father. At some point he leaned in

very slowly and kissed her on the lips, then spit in her face. He said, “I don’t want to

hurt you,” and “it wasn’t that bad, was it?,” and she replied “no,” trying to keep calm, but

in fact she really believed he was going to kill her. And P.R. never showed up.

{¶22} Finally, Lemaster said, “get out,” and “you’re not worth it.” She left,

leaving her phone, charger, purse, and bag in the room. She had her keys in her

pocket and drove. Because she was afraid he would follow her, she drove all the way

home to Urbana and got back about 4:00 a.m. She had not slept, so she needed some

time to get her mind right and ended up telling her parents. Then she drove back to

Meigs County and reported the incident later that day. S.S. testified that she was afraid

to leave because he would kill her, he was in between her and the door the whole time,

and he had thrown her cell phone, so she could not get to it during the incident.

{¶23} During cross-examination, defense counsel tried to elicit testimony from

S.S. that she exaggerated the number of blows, or that she could have left. When

asking S.S. about the photos she herself took for law enforcement, she first testified that

she took photographs of her injuries before she went to the authorities, but then

acknowledged she could not have, because her cell phone was at the camper. S.S.

later clarified she took the photos when she returned from retrieving the phone from the

camper.

{¶24} After hearing all evidence, the jury found Lemaster guilty of both offenses.

The trial court then sentenced Lemaster to 36 months on Count 1, abduction, and 180

days as to Count 2, assault, finding that Count 2 merged with Count 1, and running the Meigs App. No. 24CA6 8

sentences concurrent to one another. The trial court notified Lemaster of mandatory

post-release control and advised him of his right to appeal. Lemaster filed this timely

appeal, asserting five errors.

ASSIGNMENTS OF ERROR

I. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT’S RIGHT OF DUE PROCESS AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTION[S].

II. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION OF APPELLANT IN VIOLATION OF HIS DUE PROCESS RIGHTS AS GUARANTEED BY THE OHIO CONSTITUTION AND THE UNITED STATES CONSTITUTION.

III. APPELLANT SUFFERED PREJUDICE WHEN THE PROSECUTOR MADE MULTIPLE IMPROPER COMMENTS DURING CLOSING ARGUMENTS.

IV. APPELLANT WAS DENIED DUE PROCESS RIGHTS GUARANTEED BY THE OHIO CONSTITUTION AND THE UNITED STATES CONSTITUTION DUE TO A BRADY VIOLATION.

V. APPELLANT’S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AS GUARANTEED BY THE OHIO CONSTITUTION AND THE UNITED STATES CONSTITUTION.

First and Second Assignments of Error

{¶25} For ease of analysis, we address Lemaster’s first and second

assignments of error in conjunction with one another. In his first assignment of error,

Lemaster primarily challenges the manifest weight of the evidence because of S.S.’s

credibility. He claims she did not exhibit injuries consistent with her statements of

abuse, gave conflicting stories about having the cell phone in her possession that night,

could not credibly testify about venue, and did not report the abuse until more than 14

hours later. He also indicates the State failed to document what items S.S. removed Meigs App. No. 24CA6 9

from the camper the next day. In his second assignment of error, he limits the

discussion to whether the State sufficiently proved venue for the offenses.

{¶26} The State responds the jury’s verdict was not against the manifest weight

of the evidence, emphasizing the jury’s role in assessing witness credibility and the

sufficiency of the evidence, including the victim’s testimony and circumstances. For the

second assignment of error, the State argues it presented sufficient evidence to

establish venue in Meigs County, by providing specific testimony of the location of the

crime, as well as circumstantial evidence. Further, the State directs us to a defense

exhibit with what it asserts is the address of the incident.

A. Law

{¶27} In determining whether a criminal conviction is against the manifest weight

of the evidence, an appellate court reviews the entire record, weighs the evidence and

all reasonable inferences, considers the credibility of witnesses and determines whether

in resolving conflicts in the evidence, the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed. State v.

Thompkins, 78 Ohio St.3d 380, 387 (1997), citing State v. Martin, 20 Ohio App.3d 172,

175 (1st Dist. 1983). “Judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed by a reviewing court

as being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Const.

Co., 54 Ohio St.2d 279 (1978), syllabus.

{¶28} The weight and credibility of evidence are to be determined by the trier of

fact. State v. Kirkland, 2014-Ohio-1966, ¶ 132. The trier of fact “is free to believe all,

part or none of the testimony of any witness,” and we “defer to the trier of fact on these Meigs App. No. 24CA6 10

evidentiary weight and credibility issues because it is in the best position to gauge the

witnesses’ demeanor, gestures, and voice inflections, and to use these observations to

weigh their credibility.” State v. Dillard, 2014-Ohio-4974, ¶ 28 (4th Dist.), citing State v.

West, 2014-Ohio-1941, ¶ 23 (4th Dist.).

{¶29} In addition, “[a] verdict is not against the manifest weight of the evidence

because the finder of fact chose to believe the State's witnesses.” State v. Chancey,

2015-Ohio-5585, ¶ 36 (4th Dist.), citing State v. Wilson, 2014-Ohio-3182, ¶ 24 (9th

Dist.), citing State v. Martinez, 2013-Ohio-3189, ¶ 16 (9th Dist.). Moreover, “ ‘[w]hile the

jury may take note of inconsistencies and resolve or discount them accordingly, * * *

such inconsistences (sic.) do not render defendant's conviction against the manifest

weight or sufficiency of the evidence.’ ” State v. Corson, 2015-Ohio-5332, ¶ 31 (4th

Dist.), quoting State v. Proby, 2015-Ohio-3364, ¶ 42 (10th Dist.), citing State v. Gullick,

2014-Ohio-1642, ¶ 10 (10th Dist.).

{¶30} “When an appellate court concludes that the weight of the evidence

supports a defendant's conviction, this conclusion necessarily includes a finding that

sufficient evidence supports the conviction.” State v. Wickersham, 2015-Ohio-2756,

¶ 27 (4th Dist.), citing State v. Pollitt, 2010-Ohio-2556, ¶ 15 (4th Dist.). A determination

that a conviction is not against the manifest weight of the evidence is therefore

dispositive of the issue of whether the evidence is sufficient to sustain a conviction. Id.,

citing State v. Lombardi, 2005-Ohio-4942, ¶ 9 (9th Dist.). Therefore, in the instant case,

we consider Lemaster’s argument that his convictions are against the manifest weight of

the evidence.

B. Analysis. Meigs App. No. 24CA6 11

{¶31} Lemaster was charged with abduction and misdemeanor assault. As

relevant to this case, abduction, R.C. 2905.02(A(2), provides: “[n]o person, without

privilege to do so, shall knowingly * * * [b]y force or threat, restrain the liberty of another

person under circumstances that create a risk of physical harm to the victim or place the

other person in fear[.]” Assault, R.C. 2903.13(A), provides: “[n]o person shall knowingly

cause or attempt to cause physical harm to another or to another's unborn.”

{¶32} The State presented the testimony of the victim describing the abduction

and assault. “Testimony alone is sufficient to support an appellant’s criminal

conviction.” State v. Jarrells, 2024-Ohio-2816, ¶ 33 (4th Dist.) In addition, Deputy

Woods testified that he saw injuries on the victim, and documented the injuries with

photographs, which were entered as exhibits.

{¶33} First, Lemaster argues that S.S. did not exhibit injuries consistent with her

statements of abuse. Lemaster states that S.S. did not appear injured on the body cam

video. At trial, the defense cross-examined Woods and S.S. about her claims that

Lemaster would strike her “every few minutes” over a time period from 11:00 p.m. to

1:30 a.m. The defense’s point was that if the defendant literally struck her that often,

S.S. would have had suffered multiple blows and her injuries would have been more

severe. However, the State elicited testimony from S.S. that oftentimes she would put

up her arms to defend herself from the blows. Further, S.S. adequately explained what

she meant by that statement.

{¶34} In addition, Lemaster was charged with misdemeanor assault, and not

felonious assault, so the State only had to prove “physical harm.” R.C. 2901.01(A)(3)

defines “[p]hysical harm to persons” as “any injury, illness, or other physiological Meigs App. No. 24CA6 12

impairment, regardless of its gravity or duration.” S.S. testified that she had a red mark

to her face, bruising to her face, a knot on top of her head, as well as a bitemark on her

arm. Woods corroborated these facts. These injuries are consistent with her testimony.

In addition, as to the abduction count, the State only had to prove the risk of physical

harm, but in fact showed that physical harm occurred.

{¶35} The defense also points out that S.S. testified during direct examination

that she had left the camper without her cell phone but instead returned the next day to

retrieve it. Woods also stated that S.S. did retrieve her cell phone the following

afternoon; however, he did not document that fact. On cross, however, S.S. stated that

she left Lemaster’s home and then went to Urbana without calling law enforcement but

then called a friend to tell him about the incident. She also testified during cross-

examination that the pictures she herself took of her injuries were taken once she

returned to Urbana, but defense counsel succeeded in having S.S. admit that could not

have been so if she had left her phone in the camper in Meigs County and retrieved it

later in the afternoon with the assistance of law enforcement. S.S. admitted that she

may have been mistaken about when she took the pictures; however, it was not clear

about how she was able to telephone her friend when she returned to Urbana if she did

not have her phone.

{¶36} Lemaster also argues that S.S. was not credible because she took over 14

hours to report the incident, despite her fear of Lemaster. The failure to report an

incident immediately does not necessarily render a person’s testimony completely

uncredible if the victim explains the delay in reporting the offense. See State v. Reed,

2024-Ohio-1363, ¶¶ 15-16 (8th Dist.) (where a victim described that incident occurred Meigs App. No. 24CA6 13

over several hours and was ultimately able to explain why she did not leave when she

could have and why she did not report the events to the police immediately). Here,

there was ample evidence to explain why S.S., who explained she had been assaulted

until 1:30 a.m. had first returned to her home in Urbana because she was unfamiliar

with the Meigs County area, did not readily know where to report the crime late at night,

and also feared that Lemaster would pursue her.

{¶37} Overall, we would recognize that the trier of fact may accept or reject a

witness’ testimony in whole or in part.” Reed at ¶ 15, citing State v. Grimes, 2022-Ohio-

4526, ¶ 53 (8th Dist.). We emphasize that the witness’ credibility is to be determined by

the trier of fact. State v. Kirkland, 2014-Ohio-1966, ¶ 132. We may not substitute our

own judgment for that of the finder of fact when it comes to the choice between credible

witnesses and their conflicting testimony. Reed at ¶ 15, citing State v. Williams, 2019-

Ohio-794, ¶ 28 (8th Dist.), citing State v. Awan, 22 Ohio St.3d 120, 123 (1986).

{¶38} Lemaster additionally states that the State did not meet its burden

because law enforcement failed to document any of the items S.S. removed from the

scene, such as her cell phone, purse, or overnight bag. The Eighth District considered

a similar appellate challenge in an incident involving abduction and felonious assault,

among other offenses. State v. Vega-Medina, 2024-Ohio-3409, ¶ 22-23 (8th Dist.).

There, the defendant argued that the police department failed to adequately investigate

the victims’ allegations against him because officers never went to the home where the

incident occurred to search for evidence. Id. Also, the defendant argued that had law

enforcement gone to the residence they would have found no evidence corroborating

the victim’s testimony, including her statement that the defendant used a knife in the Meigs App. No. 24CA6 14

commission of the offense. Id. The Eight District held “allegations of inadequate police

investigations have no bearing on whether [the defendant’s] convictions are against the

manifest weight of evidence.” Id. at ¶ 22. The focus of a manifest weight challenge is

the credibility of the evidence presented in support of the convictions, not the absence

of evidence. Id. In the case sub judice, we therefore find that the manifest weight of

the evidence as to the elements of the offenses show that the jury did not clearly lose its

way, as some competent and credible evidence supports the jury’s verdict.

{¶39} But our review of the evidence does not stop there, as Lemaster urges us

to determine whether the State sufficiently proved venue beyond a reasonable doubt.

In addition to the elements of the offense, the State must present evidence of proper

venue in order to sustain a conviction for an offense. State v. Foreman, 2021-Ohio-

3409, ¶ 13, citing State v. Hampton, 2012-Ohio-5688 ¶ 20. “Ohio Constitution, Article I,

Section 10, ‘fixes venue or the proper place to try a criminal matter.’ ” State v.

Holloway, 2024-Ohio-3189, ¶ 30 (8th Dist.), quoting State v. Hampton, 2012-Ohio-5688,

¶ 19. Although venue is not a material element of any criminal offense * * * it is a fact

that must be proved at trial beyond a reasonable doubt, unless it has been waived by

the defendant.” Foreman at ¶ 13, citing State v. Headley, 6 Ohio St.3d 475, 477 (1983),

citing State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907), paragraph one of the

syllabus. “The [S]tate need not prove venue ‘in express terms,’ provided that ‘all the

facts and circumstances in the case’ establish it.” Id. at ¶ 13, quoting Headley at 477,

citing Dickerson at paragraph one of the syllabus.

{¶40} “A defendant has waived the right to challenge venue when it is raised for

the first time on appeal.” Holloway at ¶ 28, citing State v. Coley, 93 Ohio St.3d 253, 258 Meigs App. No. 24CA6 15

(2001), citing State v. Campbell, 90 Ohio St.3d 320, 336 (2000). “However, failure to

prove venue is a defect affecting a substantial right and is subject to review under the

plain error doctrine.” State v. Conrwell, 2011-Ohio-1220, ¶ 5, citing State v. Woodson

1998 WL 51606, at * 3 (Feb. 11, 1998).

{¶41} For the first time on appeal, Lemaster argues that S.S.’s testimony

regarding venue was insufficient. S.S. testified that the camper where the incident took

place was located off Maplewood Lane, in between Racine and Pomeroy, Ohio. The

State went on to ask S.S. specifically if the camper was located in Meigs County, and

S.S. responded, “[a]s far as I understand, yes.” “A victim’s testimony about the location

of the crimes is sufficient to establish proper venue.” State v. Thacker, 2020-Ohio-4620,

¶ 39 (4th Dist.), citing State v. Lancaster, 2018-Ohio-315, ¶ 56 (2d Dist.). Should that

have been the only evidence of venue, it may have been concerning because the

State’s closing arguments highlight the fact that S.S., who lived two and a half hours

away, was pretty unfamiliar with the area. However, the State presented other

circumstantial evidence to satisfy the proof of venue. The Supreme Court of Ohio has

emphasized that circumstantial evidence can be used to establish venue. State v.

Sanders, 2025-Ohio-1603, ¶ 22 (11th Dist.), citing State v. Smith, 2024-Ohio-5030, ¶ 2.

{¶42} In addition to S.S.’s testimony about the area where the incident occurred

and her understanding of the county of residence, we would note that the officer

investigating the case, Deputy Woods, was a Meigs County Sheriff’s Deputy.

Testimony regarding the jurisdiction of law enforcement can be circumstantial evidence

of venue. See State v. Thacker, ¶ 38-39 (4th Dist.). Additionally, the State specifically

asked Woods where the camper was located, and he stated that the camper was Meigs App. No. 24CA6 16

located in a camper park right off of State Route 124, between Syracuse and Racine,

Ohio.

{¶43} Further, Evid.R. 201(B)(1) provides that a court can take judicial notice of

a fact “(1) generally known within the territorial jurisdiction of the trial court or (2)

capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” Thus, “[a]n appellate court may take judicial notice

of its jurisdictional limits.” State v. Burkhalter, 2006-Ohio-1623, ¶ 17 (6th Dist.).

Accordingly, “[a]n appellate court has authority to take judicial notice regarding the

characteristics of the streets of the jurisdiction.” State v. Bradford, 2018-Ohio-1417, ¶

69 (8th Dist.), citing State v. Thomas, 1993 WL 9719, 3, fn. 2 (11th Dist. Jan. 8, 1993).

Additionally, courts of appeals have taken judicial notice of Google maps and satellite

image as a “source[ ] whose accuracy cannot reasonably be questioned.” Id.

{¶44} As we previously explained:

In taking judicial notice of a geographical fact, a court may rely upon sources like public documents and maps. State v. Elliott, 4th Dist. Ross No. 06CA2924, 2007-Ohio-2178, 2007 WL 1323434, ¶ 14; see 31 Corpus Juris Secundum, Evidence, Section 12, at 733-735. Many courts “take judicial notice of a Google map [or] satellite image as a ‘source[ ] whose accuracy cannot reasonably be questioned[.]’ ” Pahls v. Thomas, 718 F.3d 1210, 1216 (10th Cir.2013), fn. 1, citing United States v. Perea-Rey, 680 F.3d 1179, 1182 (9th Cir.2012), fn. 1; see State v. Bradford, 2018-Ohio-1417, 101 N.E.3d 710, ¶ 69 (8th Dist.). However, some courts only use Google maps to take judicial notice of the “general location” of an event or geographical fact. See Pahls at 1216, fn. 1; Perea-Rey at 1182, fn. 1; Bradford at ¶ 74, fn. 6.

State v. Isaac, 2018-Ohio-5433, ¶ 13 (4th Dist.).

{¶45} The State directs us to defense Exhibit E, the police report, which shows

the address of the incident is “30122 Lot 17 Maplewood Pk Ln, Racine, OH.” In a case

addressing a similar appellate challenge, we determined that the exact street address, Meigs App. No. 24CA6 17

apartment number and name of the apartment complex where the crimes occurred were

enough for the jury to determine the location of the offenses. State v. Conrwell, 2011-

Ohio-1220, ¶ 9 (4th Dist.). See also, State v. Lewis, 2010-Ohio-130, ¶ 10 (4th Dist.)

(testimony regarding the state route, mile marker and street name was actually more

precise than explicitly stating the name of the county where the offense occurred). This

is particularly true if the record contains evidence of the street address and the

additional proof that a specific law enforcement department responded to the location of

the offense. State v. Sanders, 2025-Ohio-1603, ¶ 24 (11th Dist.).

{¶46} Despite the exhibit showing what appears to be an exact location of the

offense, we take judicial notice that Maplewood Pk Ln appears to be an invalid address.

However, there exists a campground off State Route 124 in Racine, Ohio which is

located near 30122 Maplewood Lake Road. In this case, even without considering the

defense exhibit, we take judicial notice that the entire area of State Route 124 between

Syracuse and Racine falls with Meigs County, Ohio, and further, that the entire village of

Racine is in Meigs County. If a city spans more than one county, we would have

reached a different result. See State v. Marcum, 2018-Ohio-1135, ¶ 19 (5th Dist.)

(where appellate court observed that the City of Reynoldsburg spanned three different

counties—Licking, Fairfield, and Franklin—such that recitation of an address in

Reynoldsburg was insufficient to prove venue, resulting in plain error, and reversal of

the conviction for lack of sufficient evidence.).

{¶47} We therefore find the evidence is not against the manifest weight and

overrule Lemaster’s first assignment of error. We also find that the record contains Meigs App. No. 24CA6 18

sufficient evidence of venue beyond a reasonable doubt such that no plain error exists

and therefore defendant’s second assignment of error has no merit.

Third Assignment of Error

{¶48} In his third assignment of error, Lemaster argues the trial court committed

plain error when the prosecutor engaged in prosecutorial misconduct by making

improper comments during closing arguments. According to Lemaster, the State shifted

the burden of proof during closing argument by requiring him to disprove the hearsay

statements of P.R. that included what he deems was other-acts evidence.

{¶49} The State in turn argues that it did not make improper comments during

closing, but instead points out the comments were made during rebuttal in response to

Lemaster’s trial counsel’s arguments. The State further opines that Lemaster has not

shown prejudice in any event.

{¶50} “ ‘ “The test for prosecutorial misconduct is whether the conduct

complained of deprived the defendant of a fair trial.” ’ ” State v. Smith, 2024-Ohio-5168,

¶ 118 (4th Dist.), quoting State v. Benge, 2021-Ohio-152, ¶ 54 (4th Dist.), quoting State

v. Jackson, 92 Ohio St.3d 436, 441 (2001). We therefore review a claim for

prosecutorial misconduct by determining “whether the remarks were improper, and, if

so, whether they prejudicially affected the accused's substantial rights.” State v. Garrett,

2022-Ohio-4218, ¶ 144, citing State v. Smith, 14 Ohio St.3d 13,14 (1984). “ ‘To

establish prejudice, a defendant must show that a reasonable probability exists that, but

for the prosecutor's improper remarks, the result of the proceeding would have been

different.’ ” State v. Martin, 2024-Ohio-2334, ¶ 80 (4th Dist.), quoting State v. Topping, Meigs App. No. 24CA6 19

2012-Ohio-5617, ¶ 83 (4th Dist.). The “touchstone of the analysis ‘is the fairness of the

trial, not the culpability of the prosecutor.’ ” Garrett at ¶ 144, quoting Smith v. Phillips,

455 U.S. 209, 219 (1982). “The Constitution does not guarantee an ‘error-free, perfect

trial.’ ” Martin at ¶ 81, citing State v. Purdin, 2013-Ohio-22, ¶ 31 (4th Dist.). Thus, “[n]ot

every intemperate remark by counsel can be a basis for reversal.” Id. at ¶ 80, quoting

State v. Landrum, 53 Ohio St.3d 107, 112 (1990). Therefore, “an appellate court must

not focus on isolated comments but must examine the prosecution's closing argument in

its entirety to determine whether the prosecutor's comments prejudiced the defendant.”

Id., quoting Topping at ¶ 84, citing State v. Treesh, 90 Ohio St.3d 460, 466 (2001).

{¶51} “During closing arguments, the prosecution is generally given wide

latitude to convincingly advance its strongest arguments and positions.” Martin at ¶ 82,

quoting Topping at ¶ 83, citing State v. Powell, 2012-Ohio-2577, ¶ 149. However,

prosecutors also “ ‘must be diligent in their efforts to stay within the boundaries of

acceptable argument and must refrain from the desire to make outlandish remarks,

misstate evidence, or confuse legal concepts.’ ” Id., quoting State v. Fears, 86 Ohio St.

3d 329, 332 (1999). Even so, “ ‘[p]rosecutorial misconduct constitutes reversible error

only in rare instances.’ ” Id., quoting State v. Purdin, 2013-Ohio-22, ¶ 31 (4th Dist.),

quoting State v. Edgington, 2006-Ohio-3712, ¶ 18 (4th Dist.). “Accordingly, courts

ordinarily will not reverse a judgment on the basis of prosecutorial misconduct unless

‘the prosecutor's conduct “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” ’ ” State v. Dailey, 2018-Ohio-4315, ¶ 38 (4th Dist.),

quoting State v. Belton, 2016-Ohio-1581, ¶ 125, quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974). Meigs App. No. 24CA6 20

{¶52} Lemaster’s counsel did not object to the prosecutor’s comments during

trial. Therefore, we review only for plain error. In order to establish plain error,

Lemaster “must show that (1) there was an error or deviation from a legal rule, (2) the

error was plain and obvious, and (3) the error affected the outcome of the trial.” State v.

Mohamed, 2017-Ohio-7468, ¶ 26, citing State v. Barnes, 2002-Ohio-68, ¶ 27. “Notice of

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

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

Ohio St.2d 91, 97 (1978). Plain errors are clearly outcome-determinative. State v.

Andrews, 2024-Ohio-5023, ¶ 51 (4th Dist.), citing State v. Porter, 2012-Ohio-1526, ¶ 19

(4th Dist.) and State v. Perez, 2009-Ohio-6179, ¶ 181. “Consequently, ‘[i]n the

prosecutorial misconduct context, plain error exists only when the record clearly shows

that in the absence of the improper comments, the jury would not have convicted the

defendant.’ ” Id. citing State v. Conley, 2009-Ohio-1848, ¶ 27 (4th Dist.).

B. Analysis

{¶53} Lemaster points to comments the State made in its closing argument

rebuttal that referenced P.R., asserting that the State tried to shift the burden of proof

onto Lemaster. It is important for us to review these comments in context. During its

first closing argument, the State explicitly said, “[t]he State’s burden is to [prove] to you

beyond a reasonable doubt that the [d]efendant committed the two crimes of assault

and abduction.” In its initial closing argument, the State referenced Lemaster’s phone

call to P.R. only to argue that the victim clearly understood by hearing the call that

Lemaster would physically beat her or even kill her if she tried to leave. Meigs App. No. 24CA6 21

{¶54} Then, in his closing argument, Lemaster’s trial counsel (not the State)

brought up Lemaster’s conversation with P.R. that occurred during the assault and

abduction, to argue the State should have had P.R. testify at trial. Counsel for Lemaster

asked the jury:

Where is [P.R.]? Do we even know this phone call took place? [The prosecutor] said, well Deputy Woods, he doesn’t know what P.R.’s number is, he doesn’t . . . hey, this is law enforcement, folks. They’ve got computers. They can hunt down anybody. P.R. lives right here in this community. I mean, how hard would it be to track her down and say hey, did this phone call even happen? Did you describe all of this stuff, did that even happen? There’s another question that makes no sense.

{¶55} Only in response to the defense’s closing argument, did the prosecutor

say:

[P.R.] could’ve easily came in here and said that that didn’t happen, but she didn’t. She didn’t come in here and say anything. She wasn’t a witness for anybody. So, you can give that whatever weight you want to. Um, just because she doesn’t appear, doesn’t mean that the victim’s story is incredible.

These remarks of the prosecutor on rebuttal are the ones that Lemaster now claims

were improper.

{¶56} The State’s rebuttal argument did not imply in any way that the burden of

proof was on the defendant to prove his innocence. It was, instead, a fair comment

designed to meet the defense counsel's argument that the State omitted to call P.R.,

suggesting that P.R.’s testimony would probably benefit the defense. See, e.g., State v.

Snowden, 2019-Ohio-3006, ¶ 117 (2d Dist.) (It was not improper comment for the

prosecutor, in rebuttal, to reply to defense counsel’s intimation that the State’s failure to

offer certain testimony did not result an inference that the testimony would be favorable

to the defense). There was nothing unfair about the argument. In addition, the State’s Meigs App. No. 24CA6 22

comment that “you can give [the fact that P.R. did not testify] whatever weight you want

to. . . just because she doesn’t appear, doesn’t mean that the victim’s story is

incredible,” is not a misstatement of the law or a change in the burden of proof. In fact,

“a conviction ‘may rest solely on the testimony of a single witness, including the victim, if

believed, and there is no requirement that a victim's testimony be corroborated to be

believed.’ ” State v. Truesdell, 2024-Ohio-5376, ¶ 59 (1st Dist.), quoting State v. Wright,

2024-Ohio-851, ¶ 32 (1st Dist.).

{¶57} Moreover, not only did the State assert its burden of proof to prove the

allegations, but the trial court also instructed the jury that the State had the burden of

proof as to all the elements of its case against the defendant. We conclude that the

challenged rebuttal argument was not unfair. The record does not support a finding

that, absent the prosecutor's comments, Lemaster’s convictions would not have

occurred.

{¶58} We therefore overrule Lemaster’s third assignment of error, as we find it to

be without merit.

Fourth Assignment of Error

{¶59} In his fourth assignment of error, Lemaster contends he was denied his

due process rights due to a Brady violation. He acknowledges that he was provided a

law enforcement body cam, the incident report, and S.S.’s written statement, but he

claims his trial counsel did not find out until the trial about S.S. taking her cell phone

from his residence when law enforcement accompanied S.S. to get her belongings. His

chief complaint is that the State failed to document what particular items S.S. retrieved

from the camper. Meigs App. No. 24CA6 23

{¶60} The State responds it did not suppress or withhold any evidence from

Lemaster, and further that law enforcement was not required to conduct an inventory of

the property that the victim herself removed from the camper.

{¶61} The United States Supreme Court has held “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material to guilt or to punishment, irrespective of the good faith of

the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963); see also, State v. Osie,

2014-Ohio-2966, ¶ 154 (“Brady imposes on the government an obligation to turn over

evidence that is both favorable to the defendant and material to guilt or punishment.

‘Materiality pertains to the issue of guilt or innocence, and not to the defendant's ability

to prepare for trial.’ ”). As a matter of due process, the State’s duty is “inclusive of

evidence that is exculpatory of guilt, as well as evidence that serves to impeach the

State’s witnesses.” State v. Green, 2024-Ohio-3260, ¶ 23 (1st Dist.), citing Strickler v.

Greene, 527 U.S. 263, 280-281 (1999). Whether evidence is material under Brady

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

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

2022-Ohio-4419, ¶ 11 (6th Dist.), quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995),

quoting U.S. v. Bagley, 473 U.S. 667, 682 (1985). The U.S. Supreme Court has defined

“reasonable probability” as a “probability sufficient to undermine confidence in the

outcome.” Id., citing Bagley at 682 and State v. Johnston, 39 Ohio St.3d 48 (1989),

paragraph five of the syllabus. Meigs App. No. 24CA6 24

{¶62} A defendant claiming a Brady violation must demonstrate: “(1) the

evidence is favorable to the defendant, because it is either exculpatory or impeaching,

(2) the evidence was either willfully or inadvertently suppressed by the [S]tate, and (3)

the defendant was prejudiced as a result.” Green at ¶ 25, citing State v. Brown, 2024-

Ohio-749, ¶ 30. A Brady claim raises issues of due process that are mixed questions of

law and fact, such that the standard of review is de novo. Id. at ¶ 22, citing State v.

Smith, 2018-Ohio-4691, ¶ 24-25 (2d Dist.).

{¶63} First, Lemaster has not shown how any particular evidence was favorable

to him, because it is either exculpatory or impeaching. The tenor of Lemaster’s defense

at trial seemed to be that the credibility of S.S.’s testimony somehow hinged upon

whether she had her cell phone when she left Lemaster’s camper immediately after the

offense, or whether she later retrieved the phone with the assistance of law

enforcement. However, both Woods and S.S. testified at trial that she retrieved her cell

phone and other belongings with the assistance of law enforcement the afternoon after

the offense. As discussed above, Lemaster did cross-examine S.S. about this detail,

and she did at first mistakenly say she had taken pictures of her injuries from the

assault before she had contacted law enforcement, but she clarified that testimony with

additional questioning.

{¶64} In fact, a thorough review of the evidence shows that S.S. did not have her

cell phone until the next day. Thus, Lemaster’s argument that an inventory would have

somehow been exculpatory is sheer speculation. “Courts have consistently rejected

Brady claims that are too speculative, requiring defendants to substantiate claims that Meigs App. No. 24CA6 25

the evidence in question was favorable and material.” State v. Armstrong, 2025-Ohio-

2609, ¶ 28 (2d Dist.), quoting State v. McGuire, 2018-Ohio-1390, ¶ 28 (8th Dist.).

Lemaster has not shown how an inventory showing the items S.S. retrieved from the

camper is evidence favorable to him, either exculpatory or impeaching to satisfy the first

prong of the Brady inquiry.

{¶65} Second, Lemaster has also not shown that the State either willfully or

inadvertently suppressed the evidence. We do not see any evidence in the record to

suggest that the sheriff’s department, the prosecutor, or any other agent of the State

had made an inventory of the personal belongings S.S. removed from the defendant’s

camper. The State cannot suppress records it does not have. “ ‘The fact that a

defendant wishes to have materials that may or may not exist and may or may not be in

the prosecutor's custody or control, does not demonstrate that such materials are Brady

materials that the prosecutor has a duty to disclose.’ ” State v. Jury, 2022-Ohio-4419 at

¶ 17, quoting State v. McClurkin, 2009-Ohio-4545, ¶ 57 (10th Dist.). “The [S]tate does

not have an obligation ‘to engage in affirmative action in gathering evidence which an

accused might feel necessary to his defense. The accused must protect his own

interests.’ ” Id., quoting State v. Young, 2021-Ohio-2541, ¶ 103 (12th Dist.), quoting

Kettering v. Baker, 42 Ohio St.2d 351, 354 (1975). Thus, “ ‘when the [S]tate has failed

to gather exculpatory evidence or to fully investigate the allegations, the defendant may

either investigate the charge and collect the evidence himself, if such evidence is

available, or he may point out the deficiencies in the [S]tate's investigation at trial.’ ” Id.,

quoting Young at ¶ 103, quoting State v. Farris, 2004-Ohio-5980, ¶ 20 (2d Dist.). In

contrast, the State’s duty to affirmatively gather exculpatory evidence, extends only to Meigs App. No. 24CA6 26

that evidence obtained by those acting on the government’s behalf. Id. at ¶ 18, citing

State v. McNeal, 2022-Ohio-2703, ¶ 22.

{¶66} Finally, as explained, Lemaster has not shown how he was prejudiced, as

the only known evidence is that the cell phone was retrieved the afternoon after the

offense, which does not appear to be exculpatory. In addition, Lemaster’s trial counsel

attempted to impeach S.S. during the trial regarding whether she did or did not have the

cell phone when she left the camper. As Woods testified, when law enforcement went

with S.S. to the camper, she grabbed a cell phone, charger, and a few clothes.

Presumably, an inventory would show these same items. We therefore find that

Lemaster’s fourth assignment of error lacks merit and hereby overrule it.

Fifth Assignment of Error

{¶67} In his fifth assignment of error, Lemaster posits that he received ineffective

assistance of counsel, pointing to five specific purported errors of counsel. First, he

claims his counsel was ineffective because counsel did not move for an acquittal at the

conclusion of the State’s case for failure to establish venue. Second, he contends his

trial counsel erred by failing to object to hearsay statements of Lemaster’s prior bad

acts. Third, he alleges his trial counsel continually elicited incriminating statements

during cross-examination. Fourth, he asserts his trial counsel should have called a

“critical witness” during the trial. Fifth, he avers that his trial counsel failed to move for a

continuance or mistrial once he became aware of “newly discoverable evidence,”

namely the testimony that S.S. obtained the cell phone from the residence over 14

hours after the incident. Meigs App. No. 24CA6 27

{¶68} The State counters that Lemaster has failed to show his trial counsel’s

performance was deficient, mostly because these specific instances involve the

defense’s trial strategy. The State also points out that even if defense trial counsel

erred, the errors were not so egregious as to constitute prejudice.

{¶69} “The Sixth Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution provide that defendants in all criminal proceedings

shall have the assistance of counsel for their defense.” State v. Hughes, 2025-Ohio-

894, ¶ 52 (4th Dist.). “The United States Supreme Court has generally interpreted this

provision to mean a criminal defendant is entitled to the ‘reasonably effective

assistance’ of counsel.” Id., citing Strickland v. Washington, 466 U.S. 668.

{¶70} To prove ineffective assistance of counsel, a petitioner “must show (1)

deficient performance by counsel, i.e., performance falling below an objective standard

of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but

for counsel's errors, the proceeding's result would have been different.” State v. Short,

2011-Ohio-3641, ¶ 113 (4th Dist.), citing Strickland v. Washington, 466 U.S. 668, 687-

688 (1984). Therefore, “[f]ailure to establish either element is fatal to the claim.” State v.

Jones, 2008-Ohio-968, ¶ 14 (4th Dist.).

{¶71} “To establish prejudice, a defendant must demonstrate that a reasonable

probability exists that but for counsel's errors, the result of the trial would have been

different.” State v. Walters, 2014-Ohio-4966, ¶ 24 (4th Dist.), citing State v. White, 82

Ohio St.3d 15, 23 (1998). “ ‘[S]peculation is insufficient to establish the prejudice Meigs App. No. 24CA6 28

component of an ineffective assistance of counsel claim.’ ” (Brackets original) Id.,

quoting State v. Blackburn, 2020-Ohio-1084, ¶ 37 (4th Dist.).

{¶72} “In Ohio a properly licensed attorney is presumed competent.” State v.

Ruble, 2017-Ohio-7259, ¶ 47 (4th Dist.), citing State v. Gondor, 2006-Ohio-6679, ¶ 62.

“In order to show deficient performance, the defendant must prove that counsel's

performance fell below an objective level of reasonable representation.” State v.

Conway, 2006-Ohio-2815, ¶ 95. When considering whether trial counsel's

representation amounts to deficient performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance[.]” Strickland, 466 U.S. at 689.

Failure to Object to Venue

{¶73} Specifically, Lemaster argues on appeal that his counsel should have

moved for an acquittal, pursuant to Crim.R. 29, at the conclusion of the State’s case-in-

chief for failure to prove venue. Crim.R. 29(A) grants the trial court with authority to

enter a judgment of acquittal when the State's evidence is insufficient to sustain a

conviction. State v. Kilgore, 2025-Ohio-901, ¶ 15 (5th Dist.). However, “[a] trial court

should overrule a Crim.R. 29 motion for acquittal unless, after viewing the evidence in a

light most favorable to the State, the court finds no rational finder of fact could find the

essential elements of the charge proven beyond a reasonable doubt.” Id. citing State v.

Franklin, 2007-Ohio-4649, ¶12 (5th Dist.).

{¶74} Our discussion pertaining to the first and second assignments of error

addresses this issue. The State in this case did not fail to prove venue based on direct Meigs App. No. 24CA6 29

and circumstantial evidence. Further, we are permitted pursuant to Evid.R. 201 to take

judicial notice of cities within our district. There was sufficient direct and circumstantial

evidence of venue to require the trial court to submit the case to the jury. Thus, the trial

court would have denied a Crim.R. 29 motion had it been made.

Failure to Object to Hearsay Statements of Lemaster’s Prior Bad Acts

{¶75} Lemaster claims his trial counsel should have objected to certain hearsay

involving prior bad acts of the defendant. He primarily focuses on the time during the

indicted incident when S.S. went inside the camper, and Lemaster called P.R. on the

phone. At trial, S.S. recounted the statements that Lemaster made during this phone

call and also recounted what P.R.’s responses were, because S.S. could hear those

responses. In essence, Lemaster told P.R. to tell S.S. what would happen if S.S. put

another man before him, and P.R. eventually responded that Lemaster broke her

collarbone and busted out her eye socket. P.R. also said she had to go to physical

therapy for some time. Also, according to S.S., Lemaster told P.R. that P.R. better get

there, because if she didn’t, he was going to “kill” S.S.

{¶76} While Lemaster characterizes these statements as “other acts” evidence,

Evid.R. 404(B) limits only the admission of other acts evidence that is “extrinsic” to the

crime charged. State v. Pettiford, 2024-Ohio-4447, ¶ 36 (4th Dist.), citing State v.

Stallworth, 2014-Ohio-4297, ¶ 37 (11th Dist.). Evid.R. 404(B) does not apply when the

acts are intrinsic, including part of the events in question. Id. citing State v. Wainscott,

2016-Ohio-1153, ¶ 19 (12th Dist.). “ ‘When other acts are ‘inextricably intertwined’ with

[an] offense, those acts are said to be intrinsic to the alleged crime.’ ” Id. quoting

Stallworth at ¶ 38, quoting U.S. v. Siegel, 536 F.3d 306, 316 (4th Cir. 2008). “ ‘ “Other Meigs App. No. 24CA6 30

acts ‘are inextricably intertwined with a charged crime when they are so blended or

connected with the charged crime that proof of one incidentally involves the other,

explains the circumstances thereof, or tends logically to prove any element of the crime

charged.” ’ ” Id. at ¶ 37, quoting State v. Crowley, 2023-Ohio-1764, ¶ 21 (2d Dist.),

quoting State v. Sinclair, 2003-Ohio-3246, ¶ 35 (2d Dist.).

{¶77} Here, the conversation that Lemaster had with P.R. actually constituted

part of the offense, because it occurred contemporaneously with the incident and

showed how Lemaster threatened S.S. This conversation was part of the State’s

evidence to prove abduction in that Lemaster acted “by force or threat,” and also

showed that he placed S.S. “in fear.” This is consistent with the motion practice and

pretrial evidentiary hearing in which defense counsel objected to this evidence and

sought a ruling by the trial court as to whether it was admissible according to Evid. R.

401, 403(A) and 404(B). The trial court held that the phone conversation was

admissible because it was made during the offense. However, Lemaster’s trial counsel

did not object on the basis of hearsay, even though he requested a hearing to cross-

examine S.S. about this conversation before she testified at trial.

{¶78} Evid.R. 801(C) defines “hearsay” as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted in the statement.” Further, Evid.R. 801(D) provides that certain

statements are not hearsay. One type of statement that is not hearsay is an admission

of a party opponent, when the statement is “offered against a party,” and is the party’s

own statement. In the instant case, Lemaster’s own statements made during the

conversation with P.R. are clearly not hearsay. Evid.R. 801(D)(2)(a). Meigs App. No. 24CA6 31

{¶79} In addition, in the instant case P.R.’s statements and responses to

Lemaster’s phone call are not hearsay for other reasons such that trial counsel may

have opted not to exercise an objection. First, the statement is not hearsay if it is not

being offered to prove the truth of the matter, but instead “to show its effect on the

listener.” See State v. Boyd, 2025-Ohio-3248, ¶ 103 (6th Dist.) (“Multiple courts have

held that text messages received on a defendant’s cell phone are not hearsay when the

messages are not offered for the truth of the matter asserted.”); State v. Thacker, 2020-

Ohio-4620, ¶ 93 (4th Dist.) (“[T]estimony which explains the actions of a witness to

whom a statement was directed, such as to explain the witnesses’ activities, is not

hearsay.”).

{¶80} Second, a statement is not hearsay if a defendant acknowledges a

statement made by another, as it may be deemed an adoptive admission. State v.

Long, 2014-Ohio-4416, ¶ 21 (11th Dist.) An adoptive admission is defined as “a

statement of which the party has manifested an adoption or belief in its truth” and is

explicitly exempted from the definition of hearsay. Evid.R. 801(D)(2)(b). Id. “In order for

an adoptive admission to be applicable, the declarant must have made the statement in

the presence of the party against whom the statement is offered at trial. In addition, the

party must have heard and understood the statement, must have been free to disavow

it, and must have either expressly acknowledged the truth of the statement or remained

silent when a reasonable person would have denied its truthfulness.” Id. citing State v.

Comstock, 1997 WL 531304, *5 (11th Dist. Aug. 15, 1997). This includes phone

conversations. See Id. (a recorded telephone conversation where the defendant Meigs App. No. 24CA6 32

acknowledged a statement made by his sister was deemed an adoptive admission and

therefore not hearsay).

{¶81} Third, P.R.’s telephone responses to Lemaster are not hearsay if the State

offers them to explain the context of S.S.’s observations and behavior during the

incident, as well as the context of Lemaster’s statements during the offense. See State

v. Young, 2013-Ohio-3418 , ¶ 21 (4th Dist.) (where out-of-court statement that a victim

told witness some of her pills were missing assisted to explain the context of the

witness’ subsequent observation and behavior); see also, State v. Crocker, 2015-Ohio-

2528, ¶ 15 (4th Dist.) (where the court explained that text messages referred to in

officer’s report were not hearsay because they gave context to defendant’s statements).

{¶82} Had defense counsel objected to S.S.’s recollection of this telephone

conversation on the basis of hearsay, it is likely that the trial court would have overruled

it. “A defense counsel’s failure to object is not ineffective assistance of counsel if the

evidence is admissible.” State v. Carter, 2018-Ohio-2238, ¶ 47 (8th Dist.). The fact

counsel challenged what it at first characterized as “other acts” evidence and requested

a hearing supports the conclusion that counsel’s decision not to argue hearsay was

based on sound strategy.

Continual Elicitation of Incriminating Statements during Cross-Examination

{¶83} Lemaster asserts that his trial counsel elicited harmful evidence during

cross-examination. It is clear throughout the trial that the defense strategy was to point

to an insufficient law enforcement investigation, and further, that S.S. was not a credible

witness. “Generally, the decision regarding which defense to pursue at trial is a matter

of trial strategy, and trial strategy decisions are not a basis of a finding of ineffective Meigs App. No. 24CA6 33

assistance of counsel.” State v. Delong, 2025-Ohio-2432, ¶ 68, quoting State v. Craver,

2020-Ohio-5407, ¶ 29 (2d Dist.). This is true even if a better strategy is available. Id.

citing State v. Stodgel, 2024-Ohio-5182, ¶ 46 (4th Dist.).

Failure to Call a Critical Witness

{¶84} Lemaster states his trial counsel was ineffective because he failed to call

P.R. as a defense witness. However, “the decision whether to call a witness falls within

the rubric of trial strategy and will not be second-guessed by a reviewing court.” State

v. Tumey, 2019-Ohio-219, ¶ 41, quoting State v. Pickens, 2014-Ohio-5445, ¶ 203.

Moreover, there is no evidence in the record that P.R.’s testimony would have benefited

Lemaster in any way. In fact, the evidence presented shows the opposite is probably

true. Under these circumstances, Lemaster cannot establish a reasonable probability of

a different outcome.

Failure to Move for a Continuance or Mistrial

{¶85} Lemaster also claims that he received ineffective assistance because his

trial counsel failed to move for a continuance or mistrial when he learned during trial that

the victim obtained a cell phone from Lemaster’s residence the afternoon after the

incident. Lemaster does not explain on appeal as to how this would have benefited his

case, and there is no indication in the record that a continuance would have helped. As

it was, the defense was able to point out an inconsistency in S.S.’s testimony when she

said that she took photos upon arriving in Urbana, while at the same time saying her cell

phone was left at the camper and retrieved the following afternoon. Meigs App. No. 24CA6 34

{¶86} Despite Lemaster’s various arguments regarding ineffective assistance,

we do not see that he has established prejudice in any way. As a result, we overrule his

fifth assignment of error.

CONCLUSION

{¶87} For the foregoing reasons, we overrule all five assignments of error and

affirm the trial court’s judgment of conviction.

JUDGMENT AFFIRMED. Meigs App. No. 24CA6 35

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.