State v. Lotzer

2021 Ohio 3701

• Court: Ohio Court of Appeals
• Decided: October 18, 2021
• Docket: 1-20-30
• Status: Published

Opinion

[Cite as State v. Lotzer, 2021-Ohio-3701.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-20-30

v.

PETER A. LOTZER, II, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2019 0431

Judgment Affirmed

Date of Decision: October 18, 2021

APPEARANCES:

William T. Cramer for Appellant

Jana E. Emerick for Appellee Case No. 1-20-30

ZIMMERMAN, J.

{¶1} Defendant-appellant, Peter A. Lotzer, II (“Lotzer”), appeals the July 16,

2020 judgment entry of conviction and sentence of the Allen County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} This case stems from the October 15, 2019 attempted traffic stop of

Lotzer. Subsequent to the attempted stop, Lotzer parked the vehicle and fled from

law enforcement on foot. Following a brief pursuit, Lotzer was apprehended and

arrested where officers discovered methamphetamine along his flight path.

{¶3} On December 12, 2019, the Allen County Grand Jury indicted Lotzer

on one count of aggravated possession of drugs in violation of R.C. 2925.11(A),

(C)(1)(b), a third-degree felony. (Doc. No. 4). On December 20, 2019, Lotzer

appeared for arraignment and entered a not guilty plea. (Doc. No. 10).

{¶4} On July 1, 2020, Lotzer filed a motion for leave to file a motion in

limine, which the trial court granted the same day. (Doc. Nos. 88, 94). Thereafter,

Lotzer filed a motion in limine challenging the admissibility of his recorded

telephone calls from the Allen County Justice Center (“ACJC”) that occurred on

October 15, 16, and 17, 2019 as well as the admissibility of a cell-phone-extraction

report, which contained incoming and outgoing cell-phone calls, text messages, and

images on dates prior to the date of offense. (Doc. No. 95). The trial court held a

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motion hearing and trial court reserved ruling on the motion until the evidence was

offered at trial. (July 8, 2020 Tr. at 13).

{¶5} Lotzer’s case proceeded to a jury trial on July 14 and 15, 2020, and he

was found guilty of the single count in the indictment. (Doc. No. 109); (July 15,

2020 Tr., Vol. II, at 319-320). Thereafter, the trial court sentenced Lotzer to 36

months in prison. (Doc. No. 110); (Id. at 329). The judgment entry of conviction

and sentencing was filed on July 16, 2020. (Doc. No. 110).

{¶6} Lotzer filed his notice of appeal on July 28, 2020, and raises two

assignments of error for our review, which we will review separately. (Doc. No.

113).

Assignment of Error No. I

The trial court violated appellant’s federal and state constitutional rights to due process, and Evid.R. 403(A) and Evid.R. 404(B), by allowing evidence implicating appellant in prior drug use during a trial for drug possession.

{¶7} In his first assignment of error, Lotzer asserts that the trial court erred

when it permitted “other acts” evidence that should have been subject to mandatory

exclusion by the trial court on the basis that such evidence was unfairly prejudicial

and likely to confuse the jury under Evid.R. 403(A).

Standard of Review

{¶8} We review “other acts” evidence under Evid.R. 404(B) through the

lense of the three step analysis set forth in State v. Williams, 134 Ohio St.3d 521,

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2012-Ohio-5695, ¶ 20. State v. Williams, 3d Dist. Allen No. 1-19-70, 2021-Ohio-

256, ¶ 16. These steps involve a mixed standard of review. See id. at ¶ 9-10, citing

State v. Hartman 161 Ohio St.3d 214, 2020-Ohio-4440, ¶ 22, citing Leonard, The

New Wigmore: Evidence of Other Misconduct and Similar Events, Section 4.10 (2d

Ed.2019). The first two steps (i.e., relevancy under Evid.R. 401 and Evid.R. 402

and the particular purpose the evidence is offered under Evid.R. 404(B)) are

intertwined and pose legal questions, and thus, are reviewed under a de novo

standard of review. See State v. Bortree, 3d Dist. Logan No. 8-20-67, 2021-Ohio-

2873, ¶ 46, citing State v. McDaniel, 1st Dist. Hamilton No. C-190476, 2021-Ohio-

724, ¶ 17 and Hartman at ¶ 22, citing Leonard, at Section 4.10. However, the third

step (i.e., Evid.R. 403’s balancing tests) “constitutes a judgment call”, which we

review under an abuse-of-discretion standard. Id., at ¶ 48 citing McDaniel at ¶ 17

and Hartman at ¶ 30.

{¶9} “De novo review is independent, without deference to the lower court’s

decision.” Williams, 2021-Ohio-256, ¶ 11 (3d Dist.), quoting State v. Hudson, 3d

Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub.

Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992). The term “abuse of discretion”

implies that the trial court acted unreasonably, arbitrarily, or unconscionably. Id.,

citing State v. Adams, 62 Ohio St.2d 151, 157 (1980).

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Analysis

{¶10} “Evid.R. 404(B) categorically prohibits evidence of a defendant’s

other acts when its only value is to show that the defendant has the character or

propensity to commit a crime.” State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-

4441, ¶ 36, citing Evid.R. 404(B). “‘[Nevertheless], there are exceptions to the

general rule: “It may[] be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.”’” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 56,

quoting State v. May, 3d Dist. Logan No. 8-11-19, 2012-Ohio-5128, ¶ 69, quoting

Evid.R. 404(B). See also R.C. 2945.59. “‘The list of acceptable reasons for

admitting testimony of prior bad acts into evidence is non-exhaustive.’” Bagley at

¶ 56, quoting State v. Persohn, 7th Dist. Columbiana No. 11 CO 37, 2012-Ohio-

6091, ¶ 23. Notably, Evid.R. 404(B) only applies to “[e]vidence of other crimes,

wrongs, or acts” extrinsic to the charged offense and not those acts that are intrinsic

to the offense. (Emphasis added.) State v. Lester, 3d Dist. Union Nos. 14-18-21

and 14-18-22, 2020-Ohio-2988, ¶ 43, citing 404(B) and State v. Hill, 5th Dist. Stark

No. 2018CA00077, 2019-Ohio-3432, ¶ 51-52, citing Jordan v. Dayton Testing Lab.,

2d Dist. Montgomery No. 19741, 2004-Ohio-2425, ¶ 48 and United States v. Siegel,

536 F.3d 306, 316 (4th Cir.2008).

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{¶11} Important to this appeal, Lotzer challenges that he is not the person

that Investigator Chad Kunkleman (“Inv. Kunkleman”) observed at the Leland

Avenue residence on October 15, 2019, and the driver of the vehicle who parked a

vehicle at the Rosedale Avenue residence and who fled from Patrolman Brittany

Wyerick (“Ptlm. Wyerick”) along whose flight path drugs were located. (See July

14, 2020 Tr., Vol. I, at 130).

{¶12} Lotzer challenges the admission of three distinct evidentiary items,

which we will address separately.

Lotzer’s & Pitney’s Relationship & Lotzer’s ties to 1227 Leland Avenue:

{¶13} First, Lotzer argues that the trial court plainly erred by permitting the

State to introduce evidence regarding William Pitney’s (“Pitney”) “brother[ly]”

relationship with Lotzer and Lotzer’s connection to 1227 Leland Avenue. (July 15,

2020 Tr., Vol. II, at 235-238, 259-260). Because Lotzer’s trial counsel did not

object to the admission of this testimony through Inv. Kunkleman and Investigator

Aaron Montgomery (“Inv. Montgomery”), we apply a plain-error analysis to this

part of Lotzer’s argument. See Crim.R. 52(B).

{¶14} A review of the record reveals that the State’s lead witness, Inv.

Kunkleman, testified that several complaints from local residents were received by

law enforcement regarding suspicious activity at 1227 Leland Avenue. (July 14,

2020 Tr., Vol. I, at 116-118). Because of such complaints, Lima City Police

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Department Inv. Kunkleman and Patrolman Mericle (“Ptlm. Mericle”) engaged in

a surveillance operation of the Leland Avenue residence. (Id. at 117-118). As a

result of the surveillance, Inv. Kunkleman testified that he believed that drug-related

activity was occurring at the residence. (Id.).

{¶15} Inv. Kunkleman testified that, on the date of Lotzer’s arrest (October

15th), he (initially) observed Lotzer parked in the Leland Avenue residence’s

driveway. (Id. at 122-124). However, shortly thereafter, Lotzer goes to the door

(but does not go inside) and then drives away. (Id.). According to Inv. Kunkleman,

Ptlm. Mericle (the passenger in Inv. Kunkleman’s cruiser) observed Lotzer commit

a traffic violation when he drove from the residence. (Id. at 124). (See Def. Ex. A).

As a result (of the traffic violation), Inv. Kunkleman radioed other officers in the

area to initiate a traffic stop of Lotzer. (Id. at 123). Inv. Kunkleman testified Ptlm.

Wyerick radioed him and advised that Lotzer’s vehicle had turned onto Rice Avenue

and was now parked at a residence on Rosedale Avenue. (Id. at 124-126).

{¶16} Inv. Kunkleman testified that he, Ptlm. Mericle, and Patrolman Synder

apprehended Lotzer in that area and arrested him. (Id. at 127). At the time of his

arrest, Inv. Kunkleman confiscated Lotzer’s keys and his wallet containing Lotzer’s

photo identification (“I.D.”) from his person. (Id. at 127-128). (See July 15, 2020

Tr., Vol. II, at 259-260); (State’s Ex. 21). Inv. Kunkleman identified Lotzer (in

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open court) as the same individual he observed at the Leland Avenue residence and

later arrested. (Id. at 128).

{¶17} Inv. Montgomery testified that he received reports from Inv.

Kunkleman regarding suspected drug activity at the Leland Avenue residence. (July

15, 2020 Tr., Vol. II, at 233-234). Based upon such information, Inv. Montgomery

initiated a concurrent investigation by the West Central Ohio Crime Task Force,

which ultimately led to the arrest of a resident of the Leland Avenue residence,

William Pitney for drug-related activity.1 (Id. at 234-236.). Inv. Montgomery

testified that because he was aware of a close relationship between Pitney and Lotzer

he wanted to meet with Lotzer, Inv. Kunkleman, and Ptlm. Mericle after Lotzer was

booked into the jail.2 (Id. at 238).

{¶18} Although this evidence clearly assists the trier of fact in the

identification of Lotzer as the driver of the vehicle observed by Inv. Kunkleman and

Ptlm. Wyerick and the person who fled from Ptlm. Wyerick along the path where

illegal drugs were ultimately discovered, it is not “evidence of other crimes, wrongs,

or acts” within the meaning of Evid.R. 404(B). (Emphasis added.) Evid.R. 404(B).

See Lester, 2020-Ohio-2988, at ¶ 43, citing State v. Carter, 3d Dist. Allen No. 1-15-

62, 2017-Ohio-1233, ¶ 73. Evid.R. 404(B) applies to the admission of “evidence of

1 It is unclear from our review of the record whether Pitney was arrested for drug-related activity before or after Lotzer was arrested for the instant offense. 2 Inv. Montgomery testified that Lotzer and Pitney were “[v]ery close friends” who “called themselves brothers.” (July 15, 2020 Tr., Vol. II, at 237-238).

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other crimes, wrongs, or acts” extrinsic to the charged offense and not those acts

intrinsic to the offense because they are outside the purview of Evid.R. 404(B). Id.,

citing Hill, 2019-Ohio-3432, at ¶ 51-52, citing Jordan, 2004-Ohio-2425, at ¶ 48 and

Siegel, 536 F.3d at 316. Here, the testimony provided by law enforcement is offered

to identify Lotzer as the person driving the car from the Leland Avenue residence.

See id.

{¶19} Moreover, this evidence provides an explanation as to why Lotzer’s

property (his keys and wallet containing his I.D.) confiscated from his person during

his arrest and subsequently placed into his jail property was later discovered at the

Leland Avenue residence during the execution of a search warrant on October 24,

2019 even though Lotzer was in jail on the instant criminal charge since being

booked on October 15th. (July 15, 2020 Tr., Vol. II, at 259-260); (State’s Ex. 21).

(See State’s Ex. 4). Indeed, Inv. Montgomery testified that Pitney’s girlfriend

(Victoria) came to the jail and signed out Lotzer’s property. (Id. at 260); (See State’s

Ex. 4). Inv. Montgomery further testified that the plastic baggies that were

recovered during the execution of the search warrant on October 24th and located

inside the 1227 Leland Avenue residence appeared to be identical to the “baggies

that were packaged, or, that were located” along Lotzer’s flight path on October

15th. (July 15, 2020 Tr., Vol. II, at 257-261); (State’s Exs. 19, 20). To us, Lotzer

has failed to establish how this evidence (i.e., his relationship to Pitney and ties to

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the Leland Avenue residence) demonstrates “evidence of other crimes, wrongs, or

acts” bringing him within the scope of Evid.R. 404(B). See Lester at ¶ 43, citing

Hill at ¶ 51-52, citing Jordan at ¶ 48, citing Seigel at 316.

{¶20} Accordingly, the testimonies of Inv. Kunkleman and Inv. Montgomery

regarding Lotzer’s relationship with Pitney and his connection to 1227 Leland

Avenue do not fall within the sphere of “other acts” evidence under Evid.R. 404(B),

and this portion of Lotzer’s argument is without merit.

State’s Exhibit 17

{¶21} The next part of Lotzer’s argument asserts that State’s Exhibit 17 (the

October 17th jail call) and testimony offered through Inv. Montgomery where

Lotzer stated in a jail house telephone conversation that law enforcement found

“less than a ball” at the crime scene is also “other acts” evidence. Initially, Lotzer

challenged the admission of his jail calls in his motion in limine. (Doc. No. 95);

(July 8, 2020 Tr. at 5-6, 12); (State’s Exs. 1, 2). However, he abandoned later

challenges to the admission of that evidence after the jail calls were “redacted” by

not objecting during Inv. Montgomery’s testimony or during the admission of

State’s Exhibit 17. (July 15, 2020 Tr., Vol. II, at 253); (State’s Ex. 17).

Consequently, we apply a plain-error analysis to this this part of Lotzer’s argument.

See Crim.R. 52(B).

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{¶22} Lotzer’s statements made during the course of his jailhouse call (in

State’s Exhibit 17) after his arrest and detailed by Inv. Montgomery’s testimony are

noteworthy because law enforcement had never disclosed the weight of the drugs

discovered along Lotzer’s flight path. (Id. at 254). Significantly, the weight of the

drugs found along Lotzer’s flight path constituted (3.47 grams +/- 0.04 grams of

methamphetamine). And in Lotzer’s jail call, he stated the weight of the drugs found

by law enforcement to be “less than a ball”, which is consistent with an eighth of an

ounce of drugs or 3.5 grams (as used in street slang—an eight “ball”). (Id.); (State’s

Exs. 8, 13, 14, 16).

{¶23} Though this evidence is certainly probative of identity and Lotzer’s

culpable mental state (identifying Lotzer as the “person” who “knowingly”

“possess[ed]” the methamphetamine, elements of the instant offense), it is not

“[e]vidence” of “other crimes, wrongs, or acts” as set forth in Evid.R. 404(B). Not

all evidence regarding a defendant’s behavior constitutes “other acts” evidence.

See, e.g., State v. Patton, 74 Ohio App.3d 224, 229 (3d Dist.1991) (concluding that

testimony regarding the defendant’s oral statements and comments did not

constitute “other acts” evidence). The definition of the word “act” includes “the

process of doing something; action” and “[s]omething that is done or performed;

deed.” Patton at 229; see also Black’s Law Dictionary, act (11th ed.2019). Here,

we conclude that Lotzer’s oral statement implicating himself in his aggravated-

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possession-of-drugs charge does not constitute an “act” within the meaning of

Evid.R. 404(B). Accordingly, this portion of Lotzer’s argument is without merit.

State’s Exhibit 15

{¶24} The last part of Lotzer’s argument revolves around the testimony of

Inv. Montgomery and State’s Exhibit 15—the cell-phone-extraction report from the

LG cell-phone found in the parked vehicle where Lotzer’s flight commenced.3

(State’s Exs. 10, 15). (See July 14, 2020 Tr., Vol. I, at 217-224); (July 15, 2020 Tr.,

Vol. II, at 245-247). The record reveals that Lotzer objected to Exhibit 15 by virtue

of a motion in limine and at trial specifically focusing on a cell-phone-text message

(from September 16, 2019) that stated “But, I should be good for a ball” arguing

admission of this statement is violative of Evid.R. 402 and 403. (July 14, 2020 Tr.,

Vol. I, at 85-86, 88-93). The State argued that State’s Exhibit 15 was being offered

to prove the identity of the user of the LG phone and the use of street terminology

as to the meaning of “ball”. (Id. at 91-93). The trial court permitted the admission

of the State’s Exhibit 15 to identify the user of the LG phone and the specific text

message subject to further testimony to be provided by the State. (See id. at 92-93).

3 Although, two cell-phones were recovered from the vehicle (i.e., a Samsung and LG), no cell-phone- extraction report could be generated from the Samsung device because it is encrypted. (July 14, 2020 Tr., Vol. I, at 172, 215-217); (State’s Exs. 10, 11).

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Thus, because Lotzer contemporaneously objected, he has preserved error for our

review.

{¶25} Indeed, this evidence implicates Evid.R. 404(B) since it is “evidence

of other crimes, wrongs, or acts” extrinsic (having occurred prior in time) to the

indicted offense (i.e., aggravated possession of drugs). Consequently, we analyze

State’s Exhibit 15 and the related testimony under Williams because it falls within

the purview of Evid.R. 404(B). See Lester, 2020-Ohio-2988, at ¶ 47.

{¶26} In order to apply the first and second steps of the Williams analysis,

we undertake a review of the testimony from Lotzer’s trial. At trial, the State

presented Inv. Montgomery who testified that he was able to determine that the LG

cell-phone belonged to Lotzer because Lotzer referenced (himself) by name when

texting others; because there were selfies of Lotzer on the phone; and because the

settings on the phone auto-filled Lotzer’s personal information in applications on

the phone. (July 15, 2020 Tr., Vol. II, at 245-247). Moreover, Inv. Montgomery

testified that Lotzer’s jail calls placed through Securus, the software utilized by the

ACJC, were made to the same telephone numbers listed in Lotzer’s contacts on the

LG cell-phone. (Id. at 247); (State’s Ex. 16, 17, 18). Importantly, Inv. Montgomery

testified that during the course of Lotzer’s jail calls Lotzer stated “they have my

phones and they won’t give them back” or “my phones were in the car”. (Emphasis

added.) (Id. at 247-248). (See State’s Exs. 10, 11). Under the facts presented, the

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trial court did not err in determining that State’s Exhibit 15 was relevant and related

to Lotzer’s identity.

{¶27} In applying the third step of the Williams analysis, we are not able to

determine that Inv. Montgomery’s testimony (that Lotzer was the owner of the LG

phone and Lotzer’s jailhouse calls were in harmony with Lotzer’s texting patterns

as to content and use of street slang) “‘“is [ ] [unfairly] prejudicial ‘because the trial

court instructed the jury that this evidence could not be considered to show that

[Lotzer] acted in conformity with a character trait.’”’”.4 Lester at ¶ 47, quoting State

v. Jones, 3d Dist. Logan No. 8-16-18, 2017-Ohio-4351, ¶ 13, quoting State v.

Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 28, quoting Williams, 134

Ohio St.3d 521, 2012-Ohio-5695, at ¶ 24, (concluding “[t]he trial court’s limiting

instruction lessened any prejudicial effect of the evidence”). (See July 15, 2020 Tr.,

Vol. II, at 250, 310). Nevertheless, the trial court provided the jury with a well-

tailored limiting instruction as to the purpose of this “[e]vidence of other crimes,

wrongs, or acts” and mitigated the risk of unfair prejudice, confusion of the issues,

or misleading the jury.5 See Hartman at ¶ 66. Thus, any prejudicial effect did not

substantially outweigh the probative value of the evidence. See id.; State v. Regan,

4 Importantly, Inv. Montgomery never quoted the September 16th text message or alluded to it, rather he testified that the content of the data on the LG phone and pattern of speech is consistent with Lotzer’s jailhouse calls. (See July 15, 2020 Tr., Vol. II). 5 The limiting instruction in the instant case was specifically tailored to the underlying facts of Lotzer’s case. (See July 15, 2020 Tr., Vol. II, at 310). The jury was explicitly instructed that State’s Exhibit 15 “was received only for the limited purpose, to prove the identity of the person to whom the LG phone belonged.” (Id.).

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5th Dist. Delaware No. 13 CAA 08 0067, 2014-Ohio-3797, ¶ 19. See also Wendel

at ¶ 28, citing Williams at ¶ 24.

{¶28} Accordingly, the trial court did not err by admitting State’s Exhibit 15

and related testimony under Evid.R. 404(B).

{¶29} Accordingly, Lotzer’s first assignment of error is overruled.

Assignment of Error No. II

Appellant’s rights to effective assistance of counsel under the federal and state constitutions were violated when trial counsel failed to object to evidence of appellant’s involvement with drugs during a trial for drug possession.

{¶30} In his second assignment of error, Lotzer argues that his trial counsel

was deficient in her performance by failing to object to impermissible nonpropensity

evidence. Specifically, Lotzer asserts that trial counsel’s failure to object to

evidence related to Pitney’s and Lotzer’s relationship and evidence that tied Lotzer

to 1227 Leland Avenue rendered trial counsel’s performance deficient, thereby,

prejudicing Lotzer.

{¶31} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064 (1984). In order to show trial counsel’s conduct was

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deficient or unreasonable, the defendant must overcome the presumption that

counsel provided competent representation and must show that counsel’s actions

were not trial strategies prompted by reasonable professional judgment. Strickland

at 687. Counsel is entitled to a strong presumption that all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,

675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558

(1995). Rather, the errors complained of must amount to a substantial violation of

counsel’s essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-

142 (1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part

on other grounds, Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135 (1978).

{¶32} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting

Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142

and citing Strickland at 694.

{¶33} Because we concluded in Lotzer’s first assignment of error that no

impermissible nonpropensity evidence was admitted into evidence by the trial court,

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and since this is the sole basis for which Lotzer argues that his trial counsel’s

performance was not objectively reasonable thereby prejudicing him, Lotzer’s

second assignment of error is not well-taken in light of our determination of Lotzer’s

first assignment of error.

{¶34} Accordingly, and for the reasons set forth above, Lotzer’s second

assignment of error is overruled.

{¶35} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

WILLAMOWSKI, P.J., and MILLER, J., concur.

/jlr

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