State v. Marcum

2013 Ohio 5333

Opinion

[Cite as State v. Marcum, 2013-Ohio-5333.]

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

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 12CA6 : vs. : : DECISION AND JUDGMENT RILEY KEITH MARCUM, : ENTRY : Defendant-Appellant. : Released: 11/25/13 _____________________________________________________________ APPEARANCES:

Timothy Young, Ohio Public Defender, and Francisco E. Lüttecke, Assistant State Public Defender, Columbus, Ohio, for Appellant.

C. Jeffrey Adkins, Gallia County Prosecutor, Gallipolis, Ohio, for Appellee. _____________________________________________________________

McFarland, P.J.

{¶1} Riley K. Marcum appeals his conviction in the Gallia County

Court of Common Pleas after a jury found him guilty of complicity to

burglary, a felony of the third degree. On appeal, Marcum argues: (1)

prosecutorial misconduct deprived him of the constitutionally guaranteed

right to a fair trial, in violation of the fifth and fourteenth amendments to the

United States Constitution and Section 10, Article I of the Ohio

Constitution; and (2) he was rendered ineffective assistance of counsel in

violation of his rights under the fifth, sixth, and fourteenth amendments of Gallia App. No. 12CA6 2

the United States Constitution and Article I, Sections 10 and 16 of the Ohio

Constitution. Upon review, we find no prosecutorial misconduct occurred

and that Appellant was not denied effective assistance of counsel.

Accordingly, we overrule both assignments of error and affirm the judgment

of the trial court.

FACTS

{¶2} Riley K. Marcum, “Appellant”, was indicted for burglary, a

violation of R.C. 2911.12(A)(3), by the Gallia County Grand Jury on

September 24, 2010. Appellant, who resided in West Virginia, was a friend

of Gerald Haffelt of Gallia County, Ohio, and the two shared an appreciation

for valuable collector guitars. On or about April 23, 2009, while Haffelt and

his wife Doris were out of town, their daughter reported several guitars

stolen from her parents’ residence. Appellant had prior knowledge of

Haffelt’s collection, and that the Haffelts would be out of town. Appellant

and others were suspected of burglarizing the Haffelt residence. Appellant

eventually proceeded to a jury trial and was convicted of complicity to

burglary on March 31, 2012.

{¶3} At trial, the State presented testimony from Teresa Lee, the

Haffelts’ daughter, who testified her parents left on a trip to Indiana on April

23, 2009. She checked on their house and fed their animals on the evening Gallia App. No. 12CA6 3

of April 23, 2009, around 8:30 p.m. and found nothing amiss. When she

returned to check their residence the next day, April 24, 2009, at

approximately 11:30 a.m., a basement storm window had been moved aside

and the screen cut. Several guitars were missing. Lee notified the police and

her parents.

{¶4} Gerald Haffelt testified at the time of trial, he had known

Appellant for approximately 5 years. He and Appellant had played, bought,

and traded guitars. Haffelt had owned over 200 vintage guitars in his

lifetime, and considered himself a collector. Haffelt’s guitars were lined up

on his basement floor with tags identifying the type of guitar. He also had

the values marked in the guitar cases. On the Friday before the guitars were

taken, Appellant had been at Haffelt’s home in Gallia County. Haffelt

testified that following Appellant’s Friday visit, Appellant called wanting to

come back and show Haffelt another guitar. Haffelt testified he told

Appellant he was going out of town and could not meet with him. On

cross-examination, Haffelt admitted he did not see Appellant take the

guitars.

{¶5} Lt. Brian Michael Brown of the West Virginia State Police

testified he was requested to investigate the locations of some guitars stolen

from Gallia County, Ohio. Brown eventually interviewed Appellant, who Gallia App. No. 12CA6 4

advised he obtained 2 guitars, a Blue Ridge and a Sam’s, in a swap for cash

or guns. The investigation continued for a three-year period. Josh McCoy

and Steven Marcum1 were also investigated. Brown was also present

during a monitored phone call which was placed from Steven Marcum to

Appellant. Brown admitted in cross-examination that he could not recall if

the recovered guitars had serial numbers on them, and that he relied on the

victim for identification of the property.

{¶6} The State also presented testimony from Josh McCoy, a resident

of West Virginia. McCoy acknowledged he had previously been sentenced

for burglary in the matter. McCoy testified he had known Appellant most of

his life. McCoy testified Appellant approached him about “getting some

guitars.” Appellant offered McCoy $2,500.00 to find assistance. McCoy

was not told where they would obtain the guitars. McCoy talked to Steven

Marcum and Kevin Runyons, who agreed to help. A week later, the four

met at a hot dog shop on Route 64 in West Virginia, and got into Steven

Marcum’s Chevrolet Silverado extended cab pickup truck. From there, they

followed Appellant’s directions to get to the Haffelt residence. Once there,

Appellant, McCoy, and Runyons got out of the truck. Appellant and

Runyons broke a basement window and went into the house. In a few

1 The familial relationship between Appellant and Steven Ray Marcum is unclear. Both testified to being related by marriage. Gallia App. No. 12CA6 5

minutes, they were handing guitars out the window. McCoy placed the

guitars next to a building. 2 When Steven Marcum returned, the group

placed the guitars in the back of the truck and returned to the hot dog shop,

where they separated. McCoy testified Appellant took the guitars with him

that night. A month later Appellant and McCoy went to Appellant’s father’s

house in Columbus, Ohio, picked up the guitars, and brought them back to

West Virginia. The serial numbers had been removed from the guitars. The

night of the burglary, Appellant gave McCoy $500.00, which he shared with

Marcum and Runyons.

{¶7} McCoy acknowledged on cross-examination that the group met

after dark, around 9:30 or 10:00 p.m. on the night of the events, and he was

not even sure of the actual date of the crime. He testified Appellant crawled

through the window first. Gloves were used. McCoy also admitted his

testimony was given pursuant to a plea agreement in his own criminal case.

McCoy testified six to eight guitars were taken from the residence.

{¶8} Steven Ray Marcum also testified on behalf of the State of Ohio.

Marcum testified he resides in Kentucky and is employed as a truck driver.

He testified Josh McCoy initially contacted him. McCoy and Appellant

later came to his house and asked him if they could use his pickup truck to

2 On cross-examination, McCoy testified he placed the guitars against a tree. Gallia App. No. 12CA6 6

move some items they had bought or traded. Marcum testified he would not

loan his truck so he decided to drive them. Later, McCoy, Appellant, Kevin

Runyons and he met at the hot dog stand3 between 9:00 and 10:00 p.m., after

dark, and the others got in his vehicle. Nobody talked during the trip, but

Appellant directed Marcum to the Haffelt residence in Ohio. No one else

gave Marcum any direction. Marcum testified he “knew something was

wrong” when they asked him to stop in the middle of the road instead of

pulling into the driveway. Marcum let the others out of the truck, and they

walked across a field. He drove further up the road, turned around, and

returned. Marcum testified he never exited the truck. When he picked up the

others, they put items (which he later learned were guitars) into the back of

his truck. Marcum testified he knew nothing about how the others entered

the Haffelt residence. Josh McCoy gave Marcum $200.00 for hauling the

guitars in his pickup.

{¶9} Marcum testified he later spoke to a couple of troopers

investigating the missing guitars. He told them exactly what he had done and

agreed to contact Appellant and record him. During the recorded call,

Appellant responded that “he tried to make him and Josh some money and

Josh was trying to mess him over.”

3 Marcum testified the hot dog stand was on Route 52. McCoy’s testimony indicated the hot dog stand was on Route 64. Gallia App. No. 12CA6 7

{¶10} The testimony of Gallia County Sheriff’s Deputy Thomas Glen

Wright, Doris Haffelt, and Deputy Fred Workman also supported the State’s

case. Wright testified he took Teresa Lee’s call, responded to the scene, and

saw the broken window. When he realized a burglary was involved, he

contacted a detective with the Sheriff’s department. Doris Haffelt testified

her husband owned approximately 75-90 guitars at the time of the burglary.

The ones taken were all Martin guitars, except for two which were a Blue

Ridge and a Sam’s. She testified neither she nor her husband had misplaced

the guitars, prior to leaving for their trip. Deputy Workman testified he

worked with the West Virginia troopers to track down the stolen guitars.

They eventually contacted Steven Marcum and interviewed him about the

incident. Workman was present when Marcum made the monitored call to

Appellant on July 6, 2010.

{¶11} The trial transcript indicates at this point, the recorded phone

call was played for the jury. However, it does not appear the recording was

made an exhibit when the State offered its other exhibits. The recording is

not provided with the record on appeal. Regarding the phone call, Deputy

Workman testified he gave Steven Marcum a script of questions to ask

Appellant. Deputy Workman testified Appellant admitted buying guitars

from Josh McCoy. Appellant also stated McCoy stole the guitars. Gallia App. No. 12CA6 8

Workman testified Appellant never admitted to stealing the guitars himself.

On redirect, Workman testified he heard Steven Marcum accuse Appellant

of “coming across the field, helping carry guitars back,” and he never heard

Appellant deny the accusation. The State then rested.

{¶12} The Defense’s case began with testimony from Appellant’s

wife, Lori Marcum (“Lori”). Lori testified on April 23, 2009, Appellant,

she, and their two children went to his family’s house in Breeden, West

Virginia. Appellant was going to do some landscaping for his aunt, Violet

White. Lori testified Appellant was with them all day, and the only time he

left was approximately 90 minutes in the evening, when he went to Lowe’s.

{¶13} Lori testified Appellant and their family returned home around

11:00 p.m. and they went to bed. Lori testified she is a “light” sleeper and

Appellant was with her all night. On April 24, 2009, Josh McCoy and

Steven Marcum knocked on the door between 5:00 a.m. and 6:00 a.m. and

brought in 5 or 6 guitars. Appellant looked at the guitars, but did not keep

them. He helped the others back to their vehicle with the guitars and went

back to bed. Later that day, Appellant and his family went to his church

fundraiser. Appellant played music at church that night. Lori reiterated

between Wednesday night (April 22, 2009) and Saturday (April 25, 2009), Gallia App. No. 12CA6 9

Appellant was never away from her for more than the 90-minute trip to

Lowes.

{¶14} Violet White (“White”) testified Appellant is her nephew.

Appellant arrived at her home in West Virginia around 10:00 a.m. on

Thursday, April 23, 2009. He worked all day landscaping and was there

until 8:00 p.m. White and Appellant went to Lowe’s and returned around

9:00 p.m. or 10:00 p.m. Appellant and his family left around 11:00 p.m.

White saw Appellant at church at noon the next day. He stayed until late in

the evening. White testified it is a three-hour drive from her home in West

Virginia to Gallipolis. At no time on April 23, 2009, was Appellant gone for

a six-hour period of time.

{¶15} Maxie Collins, also a West Virginia resident, testified for the

defense. Appellant is also her nephew. Ms. Collins testified she coordinated

the church activities Appellant and his family attended on April 24, 2009.

She also saw Appellant at White’s house on April 23, 2009. Collins testified

Appellant was never gone for a six-hour period of time during that day.

{¶16} Sharon Stafford, another relative of Appellant’s, testified she

has known Appellant his entire life. Stafford also saw Appellant landscaping

at White’s house on the April 23, 2009. She arrived around noon and left at Gallia App. No. 12CA6 10

8:30 p.m. Appellant was present the entire time. Stafford also saw him at

the church activities on Friday, April 24, 2009.

{¶17} Appellant’s mother and step-father, Sharon and Bruce Harris,

testified on his behalf. Sharon Harris testified she was present at White’s

house on April 23, 2009, helping with the landscaping. She arrived at

White’s house after 4:30 p.m. and worked outside with Appellant until after

dark, 9:00 or 9:30 p.m. After that, Appellant came to her house and stayed

until approximately 11:00 p.m. She also saw Appellant at the church

activities the next day. He stayed the entire time and never left for any long

absences. The substance of Bruce Harris’s testimony was that he recalled

seeing Appellant at White’s house on April 23, 2009 and at the church

activities on the evening of April 24, 2009.

{¶18} Finally, Appellant testified. After graduating from high school,

Appellant joined the National Guard and completed basic training. His

current rank is E4 specialist. Appellant has also worked as an underground

coal miner and a railroad conductor. In April 2009, Appellant lived in

Williamson, West Virginia, almost three hours from Gallia County.

{¶19} Appellant testified he was given “Jerry” Haffelt’s name in

2006. After Appellant and Haffelt initially talked on the phone, they

sometimes met in Huntington, West Virginia, a halfway point for both men, Gallia App. No. 12CA6 11

to buy or trade guitars. Appellant had been to Haffelt’s house approximately

15-20 times.

{¶20} Appellant took Josh McCoy to the Haffelt residence in 2008.

Appellant testified McCoy was not interested in guitars, but he was trying to

help McCoy, who was in a “bad situation” and “had been on drugs”.

Appellant “hung out” with McCoy.

{¶21} In February 2009, Appellant and his wife went to the Haffelt

house and bought a guitar. Around March 20, 2009, Appellant and his

family returned to the Haffelts to sell the guitar back to Jerry. Appellant

explained he had gotten laid off from the railroad and his wife was in

school, so they needed money.

{¶22} Appellant denied involvement in the robbery. As to his

whereabouts during the relevant time frame involved, Appellant testified he

and his wife went to West Virginia on April 23, 2009, to help his aunt,

Violet White, with landscaping at her home. He left to go to Lowe’s with

his aunt. After they returned, Appellant had dinner with family. He did not

go anywhere after he went home.

{¶23} In the early hours of April 24, 2009, between 4:30 a.m. and

6:00 a.m., Josh McCoy and Steven Marcum came to his apartment. They

showed him 6 Martin guitars they had. Appellant testified he did not ask Gallia App. No. 12CA6 12

where they came from because “I knew right away where they got the

guitars.” He knew the guitars were vintage. Appellant testified he told them

to get the guitars out of his house.

{¶24} Appellant testified McCoy had a Blue Ridge and a Sam’s

guitar. McCoy arranged a sale of the Blue Ridge guitar. A week later,

Appellant was with McCoy when he was arrested by West Virginia State

Troopers. Appellant later turned over the guitar he had to Trooper Brown.

{¶25} Appellant denied riding with the others to the Haffelt’s house

in Gallipolis, giving Marcum directions to the Haffelt’s residence, taking

anything from the Haffelt residence, or directing anyone else to do so. He

denied leaving the State of West Virginia on April 23, 24, and 25, 2009.

Appellant testified McCoy had the guitars. He denied telling McCoy how to

sell them, how to get rid of them, or who might buy them. Essentially, he

testified it is his belief the others brought the guitars to his house because

they did not know anyone else who was knowledgeable about guitars.

{¶26} Appellant does not know what happened to the other Martin

guitars. He was questioned approximately two weeks after the incident. He

was contacted by West Virginia State Troopers and gave permission to

search his home. Several weeks later he was arrested for receiving stolen

property in West Virginia, in connection with Josh McCoy and the Blue Gallia App. No. 12CA6 13

Ridge guitar. Appellant testified he has cooperated with law enforcement in

West Virginia and Ohio. 4

{¶27} On cross-examination, Appellant testified he at one time

thought of Jerry Haffelt as an “extra father.” He admitted when the stolen

guitars were shown to him, he did not notify law enforcement.

{¶28} The jury subsequently found Appellant guilty of complicity to

burglary. He was sentenced to 30 months in prison and ordered to pay

restitution to Gerald Haffelt in the amount of $42,450.00. This timely appeal

followed.

ASSIGNMENTS OF ERROR

I. PROSECUTORIAL MISCONDUCT DEPRIVED RILEY K. MARCUM OF THE CONSTITUTIONALLY GUARANTEED RIGHT TO A FAIR TRIAL, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. (Tr. 204, 341, 415, 429-430, 440-441, 525-527, 538-539)

II. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF MR. MARCUM’S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATE CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION. (Assignment of Error I; Statement of the Case and Facts).

4 Appellant testified he agreed to wear a wire and record Steven Marcum and Josh McCoy, but was never given the opportunity to do that. He also testified the case in West Virginia was later dismissed. Appellant also testified he turned over the guitar he had to Trooper Brown. It was later clarified this was pursuant to the trooper’s request, and not of Appellant’s own volition. Gallia App. No. 12CA6 14

ASSIGNMENT OF ERROR ONE

{¶29} Appellant contends he was denied a fair trial by the cumulative

error stemming from the State’s numerous improper suggestions, statements,

and arguments. Appellant cites these errors occurring at pages 204, 341,

415, 429-430, 440-441, 525-527, and 538-539 of the transcript. However,

Appellant failed to object to the alleged improper suggestions, statements,

and arguments at trial. Therefore, we review the alleged errors under the

standard set forth regarding plain errors.

A. STANDARD OF REVIEW

{¶30} Failure to object to an alleged error waives all but plain

error. State v. Keeley, 4th Dist. No. 11CA5, 2012-Ohio-3564, 2012 WL

3194355, ¶ 28. Notice of CrimR. 52(B) plain error must be taken with the

utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice. State v. Rohrbaugh, 126 Ohio St.3d 421,

934 N.E.2d 920, 2010-Ohio-3286, at ¶ 6; State v. Long, 53 Ohio St.2d 91,

372 N.E.2d 804 (1978), at paragraph three of the syllabus. To find plain

error, the outcome of trial clearly would have been otherwise. State v.

McCausland, 124 Ohio St.3d 8, 918 N.E.2d 507, 2009-Ohio-5933, at ¶ 15;

State v. Braden, 98 Ohio St.3d 354, 785 N.E.2d 439, 2003-Ohio-1325, at ¶

50. Gallia App. No. 12CA6 15

B. LEGAL ANALYSIS

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

was improper and, if so, whether the rights of the accused were materially

prejudiced.” State v. Purdin, 4th Dist. No. 12CA944, 2013-Ohio-22, 2013

WL 84897, ¶ 31, quoting State v. Leonard, 4th Dist. No. 08CA24, 2009-

Ohio-6191, ¶ 36, citing State v. Smith, 97 Ohio St. 3d 367, 780 N.E. 2d 221,

2002-Ohio-6659, ¶ 45, in turn citing State v. Smith, 14 Ohio St. 3d 13, 14,

470 N.E. 2d 883 (1984). “The ‘conduct of a prosecuting attorney during

trial cannot be grounds for error unless the conduct deprives the defendant of

a fair trial.’” Purdin, supra, quoting State v. Givens, 4th Dist. No. 07CA19,

2008-Ohio-1202, ¶ 28, quoting State v. Gest, 108 Ohio App. 3d 248, 257,

670 N.E. 2d 536 (8th Dist. 1995). Accord State v. Apanovitch, 33 Ohio St.

3d 19, 24, 514 N.E. 2d 394 (1987). “Prosecutorial misconduct constitutes

reversible error only in rare instances. “Purdin, supra, quoting State v.

Edgington, 4th Dist. No. 05CA2866, 2006-Ohio-3712, ¶ 18, citing State v.

Keenan, 66 Ohio St. 3d 402, 406, 613 N.E. 2d 203 (1993). The “touchstone

analysis* * * is the fairness of the trial, not the culpability of the prosecutor.

* * * The Constitution does not guarantee an ‘error free, perfect trial.’”

Purdin, supra, quoting Leonard at ¶ 36, quoting Gest at 257. Gallia App. No. 12CA6 16

{¶32} We begin with Appellant’s claim the State engaged in

prosecutorial misconduct in closing by highlighting the fact Steven Marcum

made serious accusations against Appellant in the recorded telephone call,

which Appellant did not deny. Appellant argues the prosecutor referred to

the “adoptive admission” exemption to hearsay, codified at Evid. R.

801(D)(2)(b). Appellant contends that adoptive admissions are nonhearsay

and go to the admissibility of such an admission, but do not establish a

permissible or mandatory inference, or go to the weight of the admission or

nonstatement. Appellant notes the recording was introduced through the

officer who set up the call and both Appellant and Steven Marcum testified.

There was no objection to the recording’s admissibility and, as such, the

“adoptive admission” exemption to hearsay was never made an issue.

Appellant argues the prosecutor instructed the jury on what conclusions of

law must be made from a denial or silence and that to do so was both an

incorrect statement of law and inappropriate.

{¶33} In commenting on Appellant’s failure to deny the accusations,

the prosecutor stated:

“Now what that is, is in, in the law there’s something called an adoptive initiative. If you are accused of something or a reasonable person would deny it and you fail to deny it and you on the next subject or you act like it didn’t happen then you are, that third parties statement becomes your own statement.” Gallia App. No. 12CA6 17

{¶34} We recognize the following law regarding the “adoptive

admission” or “admission by acquiescence”:

“It is well-settled that ‘[a]n accused person may incriminate himself not only by his direct statements, but also by declaration so or conduct by which he impliedly admits the truth of charges made against him. Thus, silence in the face of an accusation of crime may constitute conduct or circumstances from which his admission of guilty may be inferred. When a statement tending to involve one in the commission of a crime is made in his presence and hearing and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny it are admissible against him as evidence of his acquiescence in its truth. His conduct constitutes what is known as a tacit or silent or adoptive admission.’ State v. Brown (June 9, 1987), Columbiana Dist. No. 85-C-42; see, also, State v. Gibson, 2nd Dist. No. 09-CA- 05, 2010-Ohio-1121, ¶ 15-16.”

{¶35} “An adoptive admission, or an admission by acquiescence,

consists of a statement by a non-party which may be deemed to be that of a

party by virtue of the failure of the party to deny the statement. State v.

Byrd, 2012-Ohio-1138, ¶ 98, quoting State v. Tolliver, 146 Ohio App. 3d

186, 198 (2001), quoting State v. Vitanza (Mar. 27, 1992), Lake Dist. No.

91-L-053, in turn quoting Staff Notes to Evid. R. 801(D)(2)(b).

{¶36} We do not agree with Appellant’s argument. The State

concedes its rendition of the concept of “adoptive admission” was inartful.

Upon review of the transcript, we find the State’s characterization of

Appellant’s statement on the recorded conversation was fair. Appellant and Gallia App. No. 12CA6 18

Marcum were discussing Josh McCoy and the guitars. Appellant admitted

buying the guitars from McCoy. Appellant also indicated McCoy was trying

to “mess him over.” Appellant heard Marcum’s statement on the recording

that Appellant “came back across the field with the guitars.” Appellant is a

high school graduate, spent time in the military, and worked as a conductor

on the railroad. He reasonably could understand the implication of

Marcum’s statement that Appellant carried the guitars. Appellant

reasonably could have been expected to deny Marcum’s statement if it were

untrue. Although the prosecutor’s summarization of the legal concept of

“adoptive admissions” was simplistic, we cannot say it was an incorrect

statement of the law or inherently unfair.

{¶37} In his next argument, Appellant begins by acknowledging that

witness credibility was paramount in his trial. The outcome of his trial

hinged on which version of the burglary, which witnesses the jury believed.

The weight to be given evidence and the credibility to be afforded testimony

are issues to be determined by the trier of fact. State v. Frazier, 73 Ohio St.

3d 323, 339, 1995-Ohio-235, 652 N.E.2d 1000, citing State v. Grant, Ohio

St.3d 465, 477, 1993-Ohio-171, 620 N.E.2d 50. The fact finder “is best able

to view the witnesses and observe their demeanor, gestures, and voice

inflections, and use these observations in weighing the credibility of the Gallia App. No. 12CA6 19

proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1984).

{¶38} “Prosecutorial misconduct rises to plain error only if it is clear

that a defendant would not have been convicted in the absence of the

improper comments.” Purdin, supra at ¶ 39, quoting State v. Keeley, 4th

Dist. No. 11CA5-2012-Ohio-3564, ¶ 28, citing State v. Conley, 4th Dist. No.

08CA784, 2009-Ohio-1848; State v. Olvera-Guillen, 12th Dist. No.

CA2007-05-118, 2008-Ohio-5416, ¶ 36.

{¶39} Appellant takes issue with the prosecutor’s remarks, bolstering

the credibility of Josh McCoy and Steven Marcum, in opening statement as

follows:

“You will hear evidence in this case that there have been conviction in this case. Uh, Josh McCoy has already entered a plea of guilty and has been sentenced in this matter. Uh, he has accepted his responsibility in this. Uh, I ask you to remember that in your testimony, in your, hearing his testimony he, he feels bad about it. He realized he shouldn’t have, but he has done that. Uh, Steven Marcum is also here testifying voluntarily. Um, Mr. Marcum has been charged with this offense uh, but he has not been convicted. But he feels, I think you’ll hear, examine, him that’s (sic) its time to do the right thing. He didn’t do it on April the 23rd or around that time three years ago, he’s been insisting on doing it despite the consequences and that’s why we’re here today.”

We see nothing impermissible about the prosecutor’s opening Gallia App. No. 12CA6 20

remarks calculated to bolster the credibility of the State’s witnesses. The

prosecutor acknowledged McCoy had been sentenced and Marcum had been

indicted in criminal cases stemming from the April 2009 theft in Gallia

County of Haffelt’s guitars. McCoy and Marcum were Appellant’s co-

defendants. The prosecutor was preemptively attempting to lessen the

impact of these facts which would no doubt be brought up in cross-

examination. This bolstering is not prosecutorial misconduct.

{¶40} Appellant notes the prosecutor further attempted to

bolster the credibility of Josh McCoy on redirect when he noted that

McCoy’s plea agreement was not just to testify but “to testify truthfully:

even to “some of [the] things you don’t remember[.]” The prosecutor

clarified that McCoy’s testimony was not some rote act pursuant to the plea

entered in his own criminal case, but truthful testimony. Although it is

unclear what the prosecutor meant by a testifying to “events he did not even

remember” we see nothing impermissible in the prosecutor’s bolstering of

this witness.

{¶41} Appellant also argues the prosecutor undercut the credibility of

Appellant’s witnesses, implying that Appellant’s family colluded to create

an alibi for him, and set the groundwork for his improper closing remarks.

Specifically, Appellant points to the following exchanges: Gallia App. No. 12CA6 21

On recross of Lori Marcum at page 415:

Q. You say you’ve prepared for your testimony here today,

right?

A. No, I didn’t say that. I said that…

Q. You’ve had plenty of time to prepare for your testimony

here today, is that correct?

A. I guess, this is the first time I’ve ever…

Q. Thank you very much for that answer. That’s all I have

Judge.

Again, although the prosecutor’s questioning was suggestive

and aggressive, we see nothing unfair in the strategy.

On cross-examination of Maxie Collins at 429:

Q. Um, have you, you’ve prepared for your testimony here

today, right?

A. Um, what do you mean prepared?

Q. You’ve…Well let me strike that question.

Appellant argues this exchange preceded questions as to Mrs. Collins’

memory of dates in 2008, 2010, 2011. Similarly, we see nothing unfair

about the prosecutor’s implication about the witness’s ability to remember

significant dates. Gallia App. No. 12CA6 22

{¶42} Appellant continues to argue the prosecutor improperly “set

up” his closing remarks by the following exchanges with Sharon Stafford,

Appellant’s mother at 440-441:

Q. […]Um, you’ve talked with others to prepare your

testimony here today haven’t you?

A. No, I’ve…

Q. So you’ve, you’ve not talked to anybody in the hallway?

A. I talked, but I don’t talk about …

Q. Did you talk about what you’re going to testify to?

A. No, no.

Q. Nobody did that, right?

A. I didn’t.

Q. Okay[.]

{¶43} Appellant contends the prosecutor’s accusations and

implications were improper impeachment, witness intimidation, and

vouching were improper. Upon review of the transcript, we see nothing

unfair about the prosecutor’s aggressive cross-examination of the defense

witnesses. The prosecutor never accused these witnesses of lying for

Appellant. These witnesses all supported Appellant’s alibi that he did not

leave West Virginia April 22, 2009 – April 25, 2009. The prosecutor did Gallia App. No. 12CA6 23

aggressively inquire as to their remembrances of the events on April 23 and

24, 2009 in an attempt to undercut their credibility. He also undercut their

credibility by reminding the jury that nearly all of the witnesses were

Appellant’s close relatives. The State’s challenges to the accuracy and

veracity of these witnesses was permissible and did not constitute

prosecutorial misconduct.

{¶44} Appellant submits by the end of the prosecutor’s rebuttal, he

injected himself into the jury box by using “we.” Appellant points to these

remarks:

The prosecutor’s rebuttal at pages 538-539:

“And let’s talk about a, the witnesses called by the defense, many of them. Um, they pretty much all said the same thing didn’t they? **** A little inconsistency would have been, I think, better for credibility that the standard pat response that they give, that they gave you. I think that suggest uh, they’re all close friends, they’re relatives of the defendant that maybe they got their stories straight before they came up here.

**** They claim that this is something they remember with awful good precision. I bet there’s probably not a one of you can tell me what you were doing at some random date three years ago. And, that to me shows that they’re telling one story. It’s not what happened. That’s, that’s part of what you’re able to do and required to do when you assess somebody’s credibility. It is to test that against how normal people react. and needless to say their motives are certainly the kind we all understand, but Gallia App. No. 12CA6 24

the kind as a jury we ought to suspect. They’re relatives, they’re friends, they care about him.”

{¶45} We must “view the State’s closing argument in its entirety to

determine whether the allegedly improper remarks were prejudicial.”

Purdin, at ¶ 37, quoting State v. Treesh, 90 Ohio St. 3d 460, 739 N.E. 2d 749

(2001), citing State v. Moritz, 63 Ohio St. 2d 150, 157, 407 N.E. 2d 1268

(1980). “The prosecution is normally entitled to a certain degree of latitude

in its closing remarks.” Purdin, supra, quoting Smith, 14 Ohio St. 3d at 13-

14, 470 N.E. 2d 883, citing State v. Woodard, 6 Ohio St. 2d 14, 26, 215 N.E.

2d 568 (1966); State v. Liberatore, 69 Ohio St. 2d 583, 589, 433 N.E. 2d 561

(1982). A closing argument that sets forth reasons “to deem * * * testimony

* * * unreliable does not amount to the prosecutor giving a [personal]

opinion.” Topping, supra at 86, quoting State v. Williams, 8th Dist. No.

97039, 2012-Ohio-1741, ¶ 19. Instead, “it merely invites the jury to weight

the credibility.” Williams, supra at ¶ 19; Topping, at 86.

{¶46} Here, the prosecutor should have refrained from identifying

himself with the jury by the use of “we.” However, we cannot say that it is

clear Appellant would not have been convicted in the absence of the

prosecutor’s remarks. The prosecutor suggested reasons why the defense

witnesses were unreliable and invited the jury to weigh their credibility. Gallia App. No. 12CA6 25

Further, the transcript reflects the jurors had ample circumstantial evidence

to support its verdict of guilty.

{¶47} “[D]irect evidence of a fact is not required. Circumstantial

evidence * * * may also be more certain, satisfying and persuasive than

direct evidence. “ State v. Lott, 51 Ohio St. 3d 160, 555 N.E. 2d 293 (1990),

citing Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S. Ct. 6,

10 (1960), citing Rogers v. Missouri Pacific RR Co., 352 U.S. 500-508, fn

17, 77 S. Ct. 443, 449, fn 17 (1957). Even murder convictions and death

sentences can rest solely on circumstantial evidence. State v. Apanovitch, 33

Ohio St. 3d 19, 514 N.E. 2d 394 (1987); State v. Nicely, 39 Ohio St. 3d 147,

151, 529 N.E. 2d 1236 (1988).

{¶48} The circumstantial evidence demonstrated that Gerald Haffelt

and Appellant had formed a friendly, likely trusting relationship. Haffelt

had informed Appellant that he would be out of town during the time period

when the burglary occurred. Appellant’s own testimony demonstrated his

familiarity with Haffelt’s residence and the location of the guitars. The

testimonies of Josh McCoy and Steven Marcum directly implicated

Appellant as a participant, if not the mastermind of the crime.

{¶49} Teresa Lee’s testimony demonstrated that the burglary had to

have taken place between 8:30 p.m. on April 23, 2009 and 11:30 a.m. on Gallia App. No. 12CA6 26

April 24, 2009. The witnesses who testified for Appellant, as to his

whereabouts during the relevant time frame, included his wife, parents, and

other relatives. There were no independent witnesses on Appellant’s behalf.

The defense witnesses’ testimony as to Appellant’s whereabouts was rather

general. No one really pinpointed the time Appellant left to go to Lowe’s.

No one brought in receipts to strengthen the claim that Appellant was there.

Appellant’s wife Lori was the only witness to support his claim that he was

home the entire night of April 24, 2009.

{¶50} Appellant testified he had taken his wife and family to the

Haffelts. He also took Josh McCoy, with his drug problem, as “something

to do.” It could easily be theorized that Appellant took his family with him

to the Haffelts in order to further curry favor and trust by using his wife and

children, as well as taking McCoy with him at an earlier time to familiarize

him with the guitars and the residence. The jury also heard the recorded

conversation between Appellant and Steven Marcum, in which Appellant

did not deny he was “walking across the field with the guitars”.

{¶51} The jury also heard Appellant and his wife testify that the

others brought the guitars to his house on the morning of April 24, 2009. It

is conceivable that Appellant added this fact as a way of admitting some

culpability, although to a lesser degree. And the jury heard Appellant Gallia App. No. 12CA6 27

describe Gerald Haffelt as an “extra father,” while failing to assist Haffelt or

the authorities in solving the crime or returning the property when the others

allegedly brought the guitars to his apartment. It appears that here, the jury

did not find Appellant or his witnesses to be credible. We will not substitute

our judgment for that of the jury under these circumstances. We find no

error, let alone plain error.

{¶52} Appellant also argues the prosecutor’s tactical attacks on

defense witness credibility and the bolstering of its witnesses credibility,

cumulatively deprived Appellant of a fair trial. Under the cumulative-error

doctrine, “a conviction will be reversed where the cumulative effect of errors

in a trial deprives a defendant of the constitutional right to a fair trial even

though each of numerous instances of trial court error does not individually

constitute cause for reversal.” State v. Jackson, 4th Dist. No. 11CA20,

2012-Ohio-6276, 2012 WL 6761891, ¶ 51, quoting State v. Garner, 74 Ohio

St. 3d 49, 64, 656 N.E. 2d 623 (1995).

{¶53} In this case, we disagree with Appellant’s “cumulative-error”

argument. We have found no instances of prosecutorial misconduct. Having

done so, “[if] a reviewing court finds no prior instances of error, then the

[cumulative error] doctrine has no application.” Jackson, supra at 54, Gallia App. No. 12CA6 28

quoting State v. McKnight, 4th Dist. No. 07CA665, 2008-Ohio-2435, 2012

WL 2024076, ¶ 108.

{¶54} As one final consideration, we would note that the trial court

gave preliminary jury instructions in which he advised the jury that opening

statements are not evidence and that the attorneys involved were not

witnesses. The trial court explicitly stated “[Y]ou must not consider as

evidence any statement of any attorney made during trial.”

In closing instructions, the trial court again advised that “evidence” does not

include the opening statements or closing arguments of counsel, that those

remarks are only designed to assist. A jury is presumed to follow the

instructions of the trial court. State v. Hancock, 108 Ohio St. 3d 57, 840

N.E. 2d 1032 (2006), ¶ 86-87. We are not convinced the prosecutor’s

remarks constituted misconduct or deprived Appellant of a fair trial. Even if

some of the prosecutor’s comments bordered on improper, we must presume

the jury followed the instructions given to it by the trial court.

{¶55} For the above reasons, we affirm the judgment of the trial court

and overrule Appellant’s first assignment of error.

ASSIGNMENT OF ERROR TWO

{¶56} As Appellant’s final assignment of error, he incorporates Gallia App. No. 12CA6 29

his argument assignment of error one and specifically contends his counsel

rendered ineffective assistance by failing to object to the prosecutor’s

misconduct and procure curative instructions regarding each alleged instance

of misconduct. For the reasons which follow, we disagree.

{¶57} Criminal defendants have a right to counsel, including a right

to the effective assistance from counsel. McMann v. Richardson, 397 U.S.

759, 770, 90 S. Ct. 1441 (1970); State v. Stout, 4th Dist. No. 07CA5, 2008-

Ohio-1366, ¶ 21. To establish constitutionally ineffective assistance of

counsel, a defendant must show (1) that his counsel’s performance was

deficient and (2) that the deficient performance prejudiced the defense and

deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052 (1984); State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904

(2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In

order to show deficient performance, the defendant must prove that

counsel’s performance fell below an objective level of reasonable

representation. To show prejudice, the defendant must show a reasonable

probability that, but for counsel’s error, the result of the proceeding would

have been different.” State v. Conway, 109 Ohio St.3d 412, 2006 Ohio-

2815, 848 N.E.2d 810, ¶ 95 (citations omitted). “Failure to establish either Gallia App. No. 12CA6 30

element is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116,

2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a court need

not analyze both. State v. Madrigal, 87 Ohio St. 3d 378, 389, 721 N.E.2d 52

(2000) (stating that a defendant’s failure to satisfy one of the elements

“negates a court’s need to consider the other”).

{¶58} 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. Thus, “the defendant

must overcome the presumption that, under the circumstances, the

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

properly licensed attorney is presumed to execute his duties in an ethical and

competent manner.” State v. Taylor, 4th Dist. No. 07CA1, 2008-Ohio-482,

¶ 10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).

Therefore, a defendant bears the burden to show ineffectiveness by

demonstrating that counsel’s errors were so serious that he or she failed to

function as the counsel guaranteed by the Sixth Amendment. State v.

Gondor, 112 Ohio St.3d 377, 2006 Ohio-6679, 860 N.E.2d 77, ¶ 62; State v.

Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Gallia App. No. 12CA6 31

{¶59} To establish prejudice, a defendant must demonstrate that a

reasonable probability exists that but for counsel’s errors, the result of the

trial would have been different. State v. White, 82 Ohio St.3d 15, 23, 693

N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), at paragraph three of the syllabus. Furthermore, courts may not

simply assume the existence of prejudice, but must require that prejudice be

affirmatively demonstrated. See State v. Clark, 4th Dist. No. 02CA684,

2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. No. 01CA2592 (Apr.2,

2002); State v. Kuntz, Ross App. No. 1691 (Feb. 26, 1992).

{¶60} Appellant argues the outcome of his trial depended on the

jury’s assessment of witness credibility and the prosecutor thwarted the

jury’s task by misstating the legal doctrine pertaining to adoptive

admissions. Appellant contends the trial court’s failure to object and obtain

curative instructions was objectively unreasonable and amounted to deficient

performance. Trial counsel’s failure to object to alleged instances of

prosecutorial misconduct “does not necessarily constitute ineffective

assistance” of counsel. State v. Topping, 4th Dist. No. 11CA6, 2012- Ohio-

5617, 2012 WL 6017986, ¶ 80, citing State v. Perez, 124 Ohio St. 3d 122,

2009-Ohio-6179, 920 N.E.2d 104, ¶ 230; State v. Tenace, 109 Ohio St. 3d Gallia App. No. 12CA6 32

255, 2006-Ohio-2417, 847 N.E. 2d 386, ¶ 62. That is, a failure to object

does not necessarily fall below an objective standard of reasonableness.

Topping, supra. Instead, a failure to object to alleged instances of

prosecutorial misconduct may be considered sound trial strategy. Id; State v.

Brown, 5th Dist. No. 2007CA15, 2008-Ohio-3118, ¶ 58 (stating that failure

to object to prosecutor’s statements during closing arguments may have been

trial strategy and thus did not constitute deficient performance).

{¶61} “ ‘A competent trial attorney might well eschew objecting * *

* in order to minimize jury attention to the damaging material.’” Topping,

supra, quoting State v. Mundt, 115 Ohio St. 3d 22, 2007-Ohio-4836, 873

N.E. 2d 828, ¶ 90, quoting United States v. Payne, 741 F.2d 887, 891 (C.A.

7. 1984). Accord. State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, 776

N.E. 2d 26, ¶ 42 (stating that “[a] reasonable attorney may decide not to

interrupt his adversary’s argument as a matter of strategy”); State v. Clay,

7th Dist. No. 08MA2, 2009-Ohio-1204, ¶ 141 (stating that ‘[l]imiting

objection during closing is a trial tactic to avoid trying to draw attention to

the statements.”). Thus, in order to establish that trial counsel performed

deficiently by failing to object to error at trial, the defendant ordinarily must

demonstrate that the error “is so compelling that competent counsel would Gallia App. No. 12CA6 33

have been obligated to object to [it] at trial.” Topping, supra. quoting State

v. Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 233

{¶62} With regard to Appellant’s claim that the prosecutor misstated

the law as to adoptive admissions, we find it to be reasonable trial strategy

not to have objected to admission of the recorded conversation. Initially,

Appellant may have wished to have the recording played, in which he cast

suspicion on the other parties involved and did not explicitly admit to

participation in the crime. Then, in closing, it is reasonable trial strategy not

to have wished to call further attention to Appellant’s failure to deny the

accusation he carried guitars across the field.

{¶63} Appellant also claims it was ineffective assistance to fail to

object to the prosecutor’s alleged “vouching” for the credibility of Josh

McCoy and Steven Marcum. During closing argument, prosecutors “may

not express their personal beliefs or opinions regarding the guilt of the

accused.” Topping, supra at 85, quoting State v. Lott, 51 Ohio St. 3d 160,

555 NE. 2d 293 (1990). They may also not express their personal beliefs or

opinions regarding a witnesses’ credibility. Topping, supra; State v.

Williams, 79 Ohio St. 3d 1, 679 N.E. 2d 646 (1997). “Vouching occurs

when the prosecutor implies knowledge of facts outside the record or places

his or her personal credibility in issue. “ Topping, supra at 85, quoting State Gallia App. No. 12CA6 34

v. Davis, 116 Ohio St. 3d 404, ¶ 232, citing State v. Jackson, 107 Ohio St. 3d

53, 2005-Ohio-5981, 836 N.E. 2d 1173, ¶ 117. The prosecutor is however,

permitted to fairly comment upon the testimony and evidence. Topping,

supra; Mundt at ¶ 119.

{¶64} In this matter, we have already discussed under the first

assignment of error our finding that no prosecutorial misconduct occurred

when the prosecutor told the jury about McCoy and Marcum’s involvement

in the crime during opening statement. The prosecutor effectively bolstered

his own witnesses without explicitly saying that he found them to be

credible. The prosecutor did not improperly vouch for McCoy and Marcum

because their involvement in the crime was entered into evidence through

their subsequent testimonies. Counsel’s performance cannot be deemed

deficient for failing to raise non-meritorious objections. Topping, supra;

Mundt, at ¶ 119.

{¶65} Appellant further argues the prosecutor overtly accused the

defense witnesses of conspiring to create an alibi. However, as discussed

previously, we find the State’s re-cross of Lori Marcum, cross-examination

of Maxie Collins, and cross-examination of Sharon Stafford to be

aggressive, but fair. The prosecutor did, through his examination of these

witnesses, lay the groundwork for his closing theme that the witnesses were Gallia App. No. 12CA6 35

assisting Appellant with an alibi. The prosecutor never called the witnesses

liars, he simply pointed out the weaknesses in their testimony and the fact

they were relatives. Again, we do not find counsel’s performance deficient

for failure to raise non-meritorious objections.

{¶66} Finally, Appellant contends the prosecutor unfairly aligned

himself with the jury by use of “we” during closing rebuttal. Although this

is somewhat problematic, we cannot find it rises to the level of plain error.

As we explained in our discussion of Appellant’s first assignment of error,

ample circumstantial evidence supports Appellant’s conviction for

complicity to burglary. We do not believe Appellant can show a reasonable

probability that, but for counsel’s use of “we,” the result of the proceeding

would have been different. Even if using “we” or other of the prosecutor’s

comments could be considered to be improper, Appellant cannot show that

those allegedly improper comments affected the outcome of the trial. Had

counsel lodged objections and/or requested curative instructions at each

juncture where, in hindsight, Appellant now feels would have been

appropriate, the objection would simply have called attention and perhaps

unduly emphasized the content of each instance in the jury’s mind. Based

on the circumstantial evidence supporting Appellant’s conviction, along with

the fact that the jurors were in the best position to view the witnesses and Gallia App. No. 12CA6 36

assess credibility, we are not convinced that the outcome of the proceeding

would have been different had counsel made the objections and requested

curative instructions. We do not find Appellant was prejudiced by counsel’s

alleged omissions.

{¶67} For the reasons discussed above, we do not find Appellant was

rendered ineffective assistance of counsel. We therefore overrule this

assignment of error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Gallia App. No. 12CA6 37

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

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

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

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

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

For the Court,

BY: _______________________ Matthew W. McFarland Presiding 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.