[Cite as State v. Newsome, 2012-Ohio-6119.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-12-03
v.
JOSHUA LEE NEWSOME, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court Trial Court No. 2011 CR 72
Judgment Affirmed
Date of Decision: December 26, 2012
APPEARANCES:
Charles R. Hall, Jr. and Randy F. Hoffman for Appellant
Todd C. Schroeder for Appellee Case No. 12-12-03
ROGERS, J.
{¶1} Defendant-Appellant, Joshua Newsome, appeals the judgment of the
Court of Common Pleas of Putnam County finding him guilty of robbery and
sentencing him to an eight-year prison term. On appeal, Newsome contends that
the verdict was against the manifest weight of the evidence, that the trial court
committed numerous evidentiary errors, that he was denied effective assistance of
counsel, that the trial court erred when it sentenced him to the maximum term of
imprisonment, and that the trial court erred when it informed him of the
consequences of violating post-release control. Based on the following, we affirm
the trial court’s judgment.
{¶2} On October 11, 2011, the Putnam County Grand Jury indicted
Newsome on one count of robbery in violation of R.C. 2911.02(A)(2), a felony of
the second degree. The indictment stems from a robbery of a local convenience
store by two masked assailants, one of whom was later identified as Newsome.
Subsequently, Newsome entered a plea of not guilty to the sole count in the
indictment.
{¶3} On December 19 and 20, 2011, the matter proceeded to a jury trial.
After two hours of deliberation, the jury returned a verdict finding Newsome
guilty of robbery.
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{¶4} On December 23, 2011, the matter proceeded to sentencing, during
which the trial court sentenced Newsome to an eight-year prison term.
{¶5} It is from this judgment Newsome appeals, raising the following
assignments of error for our review.
Assignment of Error No. I
THE JURY ERRED BY FINDING APPELLANT GUILTY AS THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. II
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT REFUSED TO EXCLUDE HEARSAY EVIDENCE.
Assignment of Error No. III
THE TRIAL COURT ERRED WHEN IT ADMITTED HEARSAY EVIDENCE INADMISSIBLE UNDER THE RULE IN BRUTON V. UNITED STATES.
Assignment of Error No. IV
THE TRIAL COURT ERRED IN ADMITTING THE ALLEGED CHAFFINS (sic) STATEMENTS AS “STATEMENTS AGAINST INTEREST.”
Assignment of Error No. V
THE TRIAL COURT ERRED BY ADMITTING HEARSAY STATEMENTS OF ALLEGED CO-CONSPIRATOR CHAFFINS.
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Assignment of Error No. VI
THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL IN VIOLATION OF THE APPELLANT’S CONSTITUTIONAL RIGHTS THEREBY DENYING HIM A FAIR TRIAL.
Assignment of Error No. VII
TRIAL COUNSEL ERRED IN NOT CHALLENGING JUROR OR REMOVING THE JUROR FOR CAUSE.
Assignment of Error No. VIII
THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO THE MAXIMUM TERM OF IMPRISONMENT.
Assignment of Error No. IX
THE TRIAL COURT DID NOT PROPERLY INFORM THE APPELLANT OF THE CONSEQUENCES OF VIOLATING POST RELEASE CONTROL.
Assignment of Error No. X
THE COMBINATION OF THE CUMULATIVE ERRORS ARE SUFFICIENT TO CALL INTO QUESTION THE VALIDITY OF THE VERDICT PREVENTING THE APPELLANT FROM OBTAINING A FAIR TRIAL.
{¶6} Due to the nature of Newsome’s assignments of error, we elect to
address the assignments out of order and combine the assignments where
appropriate.
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{¶7} In his first assignment of error, Newsome contends that his finding of
guilt was against the manifest weight of evidence. We disagree.
{¶8} When an appellate court analyzes a conviction under the manifest
weight standard it must review the entire record, weigh all of the evidence and all
of the reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the fact finder clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,
387, superseded by constitutional amendment on other grounds as stated by State
v. Smith, 80 Ohio St.3d 89, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist. 1983). Only in exceptional cases, where the evidence “weighs heavily
against the conviction,” should an appellate court overturn the trial court’s
judgment. Id.
{¶9} As previously mentioned, Newsome was convicted of robbery in
violation of R.C. 2911.02(A)(2), which provides as follows:
(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:
***
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(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another[.]
Bearing these elements in mind, we turn to the evidence presented at trial.
{¶10} Anastasia Brooks (“Brooks”) testified that Newsome, her boyfriend
at the time, and John Matthew Chaffins (“Chaffins”), were residing in her
apartment, located in Defiance, Ohio, during the week of September 9, 2011.
During that week, Brooks overheard several conversations between Newsome and
Chaffins. At trial, the State questioned Brooks about what she overheard,
resulting in the following colloquy:
Q: During the course of the week, were you able to personally overhear conversations between Matt and the defendant?
A: Yes.
Q: Did those conversations involve a plan to rob a place?
Q: When you overheard them talking, you overheard them discussing a plan to rob a location?
Q: Did that include Mike’s Carry Out?
Q: Was that Plan A?
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Q: Do you recall Plan B being a plan to rob a different place if Plan A did not work out?
A: Yes. Trial Tr., p. 225-227.
{¶11} According to Brooks, Newsome and Chaffins were at her apartment
on Friday, September 9, 2011, the day of the robbery (hereinafter “Friday”).
Brooks testified that Newsome and Chaffins left her apartment together at 9:30
p.m. that same day dressed in all black, wearing black nylon dew rags, and
carrying a gun and a red flashlight.
{¶12} Contrary to Brook’s testimony, Kimberly Black (“Black”), who was
also dating Newsome at the time, testified that she was with Newsome at his
mother’s, Tammy Wilder’s (“Wilder”), residence on Friday. Though Black
acknowledged that Newsome had gone over to Brooks’ apartment on Friday
during the day, she testified that he returned to his mother’s residence at
approximately 9:30 p.m. and remained there until the following morning.
{¶13} Nancy Dotson (“Dotson”) and Dan Groff (“Groff”) were working at
Bob’s Carryout in Continental, Ohio on Friday night. At approximately 11:00
p.m., two masked men wearing all black entered Bob’s Carryout. One of the men
demanded that Dotson open the register, while the other approached her wielding
a tire iron. Dotson, being fearful, moved out from behind the counter so the men
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could access the register. The masked men looted the register and fled with
several hundred dollars in one, five, ten, and twenty dollar bills.
{¶14} Officer Kyle Stechschulte (“Officer Stechschulte”) testified that he
was the second officer to arrive on scene. Officer Stechschulte testified that his
patrol dog Viking, a trained tracking dog, was with him the night of the robbery.
Officer Stechschulte testified that Viking picked up a scent that took him from
Bob’s Carryout over nearby railroad tracks and into a residential yard located at
202 North Elm Street.
{¶15} Meanwhile, on Friday night, Jeff Weible (“Jeff”), was at his
residence with his wife Amanda Weible (“Amanda”) and Black. Jeff testified that
he was acquainted with Newsome and Black via Wilder, their neighbor.
According to Jeff, he and Black were watching television at his residence on
Friday night. Jeff testified that he fell asleep in his living room around 11:00 p.m.
that night, and, at approximately midnight, was awoken by Newsome and Chaffins
walking into the living room. According to Jeff, Black and Newsome went over to
Wilder’s residence and Chaffins fell asleep on his couch.
{¶16} On the morning of Saturday, September 10, 2011 (hereinafter
“Saturday”), Amanda awoke to find Chaffins sleeping on her couch. Chaffins
offered to buy Amanda breakfast and she agreed. Amanda testified that she
thought Chaffins’ offer was strange because he said he had no money on Friday. -8- Case No. 12-12-03
{¶17} Meanwhile, on Saturday morning, Don Harter (“Harter”), who
resides at 202 North Elm Street, found a red flashlight and a tire iron while
mowing his lawn. Harter, who was aware that Bob’s Carryout had been robbed
the previous night, testified that he informed the Continental Police Department
about the items.
{¶18} Chief Arnie Hardy (“Chief Hardy”), chief of the Continental Police
Department, responded to Harter’s residence to investigate the items. Chief Hardy
documented the items and collected them as evidence. Chief Hardy testified that
he showed Dotson and Groff the tire iron found in Harter’s yard and each
identified it as being similar to the tire iron used during the robbery. Chief Hardy
later sent the red flashlight and tire iron to the Ohio Bureau of Criminal
Identification & Investigation (“BCI”) for fingerprint analysis. BCI, however, was
unable to obtain any usable fingerprints from the items.
{¶19} Brooks testified that she saw Chaffins and spoke with Newsome on
Saturday. Brooks testified that Chaffins indicated that “Plan A” did not work.
Trial Tr., p. 230. As for Newsome, Brooks testified that he called her in the
afternoon and asked her to move a gun. Brooks testified that she and another
woman, Cassandra Robinson (“Robinson”), followed Newsome’s directions and
located the gun, as well as a dew rag. Brooks testified that neither she nor
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Robinson touched the gun or dew rag, but that Robinson did report the items to the
Defiance Police Department.
{¶20} At trial, Brooks identified both the red flashlight found in Harter’s
yard and the gun she found near her apartment as the items she saw Newsome and
Chaffins with on the night of the robbery.
{¶21} Shortly after their discovery, Chief Hardy received the gun and dew
rag from the Defiance Police Department. Chief Hardy testified that he showed
the dew rag to Dotson and that she identified it as being similar to the ones worn
by the assailants. Soon after receiving the dew rag and gun, Chief Hardy received
several black clothes and another dew rag found in a corn field near Wilder’s
residence. Chief Hardy testified that one article of clothing found in the field, a
black t-shirt with white graphics, was similar to a black t-shirt worn by Newsome
in a picture Brooks took on September 8, 2011, the day before the robbery. After
collecting the dew rags, Chief Hardy sent them to BCI for DNA analysis.
{¶22} Lynda Eveleth (“Eveleth”), a forensic DNA analyst with BCI,
testified that she conducted DNA testing of both dew rags. Eveleth testified that
the DNA sample taken from the dew rag found near Newsome’s mother’s
residence matched Chaffins’ DNA sample. As for the dew rag found near Brooks’
apartment, Eveleth testified that Newsome could not be excluded as a contributor
of the DNA found in the dew rag. -10- Case No. 12-12-03
{¶23} Alex Recker (“Recker”), who was incarcerated in the same jail as
Chaffins and Newsome during the pendency of the instant case, testified that
Chaffins admitted to robbing a carryout with Newsome. At trial, the State
questioned Recker about the specifics of Chaffins’ statements, resulting in the
following colloquy:
Q: Did you have discussions then with John Matthew Chaffins regarding his involvement on the robbery on September 9, 2011?
Q: And did those discussions also include the involvement of Mr. Newsome?
Q: And can you describe what Chaffins told you in terms of the circumstances surrounding that robbery of Bob’s carry out?
A: They first started out at an apartment in Defiance. They started off that I guess they were going to rob a different store, but that didn’t work out, so this was a fallback plan. And so they went to Continental instead and came in through the back of the drive-thru, and then I guess [Newsome] went in first; and then they got the money and they went out the front of the store and ran over the railroad tracks and then out of town that way.
Q: Did Chaffins discuss with you the ditching of any clothing?
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A: They said they got paranoid - -
A: - - on the way back, so they pulled off and they took off their black clothes and threw it in a field.
Q: Did Chaffins make any statement about whether or not there was any sort of item that they, weapon that they possessed when entering Bob’s Carry Out?
A: They said they used a tire iron. Trial Tr., p. 289-291.
Recker testified that when he asked Newsome about the robbery, Newsome would
not admit his involvement.
{¶24} Upon considering the foregoing evidence, we find that Newsome’s
conviction for robbery was not against the manifest weight of the evidence.
Brooks’ testimony demonstrates that Newsome and Chaffins were planning to rob
a carryout. Brooks’ and Jeffery’s testimony, when viewed together, demonstrates
that Newsome and Chaffins were together on the night of the robbery and their
whereabouts unknown at the time the robbery occurred. Brooks’ testimony also
demonstrates that Newsome and Chaffins were dressed in all black and wearing
dew rags, like the assailants that robbed Bob’s Carryout, an hour and a half before
the robbery occurred. The red flashlight discovered in Harter’s yard, which
Brooks identified as the flashlight Newsome and Chaffins possessed on the night
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of the robbery, demonstrates that Newsome and Chaffins were near Bob’s
Carryout on the night of the robbery. DNA testing of the dew rag, which was
found near a gun that Newsome asked Brooks to retrieve and was identified by
Dotson as similar to the dew rags worn by the assailants, demonstrates that
Newsome was one of the assailants. Finally, Recker’s testimony concerning
Chaffins’ description of the events preceding the robbery, the robbery itself, and
the events following the robbery corroborate the overwhelming circumstantial
evidence which, in and of itself, supports the jury’s determination that Newsome
robbed Bob’s Carryout.
{¶25} Accordingly, we overrule Newsome’s first assignment of error.
Assignments of Error Nos. II, III, IV & V
{¶26} In his second, third, fourth, and fifth assignments of error, Newsome
contends that the trial court erred when it refused to exclude Recker’s testimony
describing Chaffins’ statements. In particular, Newsome argues that Recker’s
testimony was (1) violative of the Confrontation Clause, (2) inadmissible under
the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968),
and (3) inadmissible hearsay. We disagree.
The Confrontation Clause
{¶27} The Sixth Amendment to the U.S. Constitution provides, in relevant
part, that, “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to -13- Case No. 12-12-03
be confronted with the witnesses against him.” Specifically, the Confrontation
Clause bars the “‘admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the defendant had had a
prior opportunity for cross-examination.’” Davis v. Washington, 547 U.S. 813,
821, 126 S.Ct. 2266 (2006), quoting Crawford v. Washington, 541 U.S. 36, 53-54,
124 S.Ct. 1354 (2004). Conversely, the Confrontation Clause does not bar the
admission of nontestimonial out-of-court statements. Whorton v. Bockting, 549
U.S. 406, 420, 127 S.Ct. 1173 (2007). Accordingly, the threshold question in a
case, such as this, where a violation of the Confrontation Clause is alleged “is
whether the challenged statement is testimonial. If it is not, the Confrontation
Clause ‘has no application[.]’” United States v. Figueroa-Cartagena, 612 F.3d 69,
85 (1st Cir.2010), quoting Whorton at 420.
{¶28} Newsome contends that Chaffins’ statements to Recker were
testimonial, because the State presented no evidence establishing Recker’s motive
for testifying. Without such evidence, Newsome argues that Chaffins’ statements
were testimonial because they were made “in a setting that could have only lead to
a government informant seeking to elicit the statements to further the prosecution
against Chaffins or [Newsome.]” Appellant’s Br., p. 11. We find Newsome’s
argument unavailing.
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{¶29} Contrary to Newsome’s argument, the State’s failure to present
evidence regarding Recker’s motive to testify does not create a presumption that
Recker was a government informant seeking to elicit statements for prosecution.
First, Newsome cites no authority which supports such a presumption. Second,
and more importantly, Newsome had the opportunity to cross-examine Recker
concerning his motives for testifying and did not. Given these shortcomings, we
find that the State’s failure to present evidence regarding Recker’s motive to
testify does not create a presumption that Recker was a government informant
seeking to elicit statements for purposes of prosecution.
{¶30} Chaffins’ statements to Recker bear none of the characteristics of
testimonial statements. The record reveals that Chaffins and Recker became
familiar with each other because they were housed together in the jail’s medical
pod. During their time together, the men casually conversed about the offenses
that lead to their incarceration. It was during these conversations that Chaffins
freely described the robbery. Given these facts, we find that Chaffins’ statements
were not made under formal circumstances (such as police interrogation), but
rather to a fellow inmate, under circumstances that did not portend their use at trial
against Newsome or Chaffins. See Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (“An
accuser who makes a formal statement to government officers bears testimony in a
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sense that a person who makes a casual remark to an acquaintance does not.”). As
such, we find Chaffins’ statements to Recker were nontestimonial.
{¶31} Our finding is consistent with other courts, which have found inmate
conversations similar to those between Recker and Chaffins to be nontestimonial.
Dutton v. Evans, 400 U.S. 74, 87-89, 91 S.Ct. 210 (1970) (plurality opinion,
Stewart, J.) (determining that Confrontation Clause did not bar statements from
one inmate to another)1; United States v. Pelletier, 666 F.3d 1, 9-10 (1st Cir.2011)
(determined that statements from one inmate to another were nontestimonial); U.S.
v. Smith, 383 Fed.Appx. 355, 357 (4th Cir.2010) (same); United States v. Johnson,
495 F.3d 951, 976 (8th Cir.2007) (same); United States v. Johnson, 192 Fed.Appx.
935, 938 (11th Cir.2006) (same); see also United States v. Smalls, 605 F.3d 765,
778 (10th Cir.2010) (finding statement made to confidential informant
nontestimonial where declarant knew informant only as an inmate); United States
v. Johnson, 581 F.3d 320, 325 (6th Cir.2009) (same).
{¶32} Given the foregoing, we find that Chaffins’ statements to Recker
were nontestimonial, and consequently find that their admission was not barred by
the Confrontation Clause.
1 While the Dutton decision was decided before Crawford, the Supreme Court recognized that the statements at issue in Dutton were nontestimonial. Davis at 825. -16- Case No. 12-12-03
Bruton v. United States
{¶33} Contrary to Newsome’s assertion, the rule announced in Bruton v.
United States is inapplicable. In Bruton, the Supreme Court held that introducing
an out-of-court confession by a non-testifying defendant violated the
Confrontation Clause rights of a co-defendant who was incriminated by the
statement. Bruton, 391 U.S. at 137, 88 S.Ct. 1620. Because it is premised on the
Confrontation Clause, the Bruton rule, like the Confrontation Clause, does not
apply to nontestimonial statements. E.g., Johnson, 581 F.3d at 326. Accordingly,
since Chaffins’ statements to Recker were nontestimonial their admission does not
offend the rule announced in Bruton.
Hearsay
{¶34} While Chaffins’ statements to Recker are not violative of the
Confrontation Clause or the rule announced in Bruton, their admission was still
subject to the Rules of Evidence. Here, Newsome contends that Recker’s
testimony describing Chaffins’ statements was inadmissible hearsay. While we
agree that Recker’s testimony describing Chaffins’ statements was hearsay, we
find that the trial court properly admitted Recker’s testimony as a statement
against interest.
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{¶35} Hearsay evidence is not admissible “unless subject to a relevant
exception.”2 State v. Steffen, 31 Ohio St.3d 111, 119 (1987), citing Evid.R. 802.
During trial, the trial court determined that Chaffins’ statements to Recker were
admissible as statements against interest. Evid.R. 804(B)(3) provides an exception
for statements against interest when the declarant is unavailable to testify as a
witness, and provides, in relevant part, as follows:
(3) Statement against interest. A statement that was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement
{¶36} For Chaffins’ statements to qualify under the statement against
interest exception, the State must have established that (1) Chaffins was
unavailable as a witness, (2) the statements were against Chaffins’ interest and
tended to subject him to criminal liability, and (3) corroborating circumstances
indicate the trustworthiness of the statements. Evid.R. 804(B)(3). All three
elements must be present in order for the statements to be admissible under
2 Though the hearsay exceptions contained within the Rules of Evidence are often the means by which hearsay is rendered admissible, we note, for purposes of completeness, that hearsay is also admissible as provided by the “Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, * * *, or by other rules prescribed by the Supreme Court of Ohio.” Evid.R. 802. -18- Case No. 12-12-03
Evid.R. 804(B)(3). See, e.g., State v. Gilliam, 70 Ohio St.3d 17, 20 (1994),
overruled on other grounds by State v. Madrigal, 87 Ohio St.3d 378 (2000).
Admission of a hearsay statement pursuant to Evid.R. 804(B)(3) is within the
sound discretion of the trial court, and will not be disturbed absent an abuse of that
discretion. State v. Sumlin, 69 Ohio St.3d 105, 108 (1994), citing State v.
Landrum, 53 Ohio St.3d 107, 114 (1990).
{¶37} Both parties agree that the first two elements have been established.
As for the first element, a declarant who invokes their right against self-
incrimination is considered unavailable for purposes of the unavailability
requirement of Evid.R. 804. Sumlin at 108; Landrum at 113. Here, the State
called Chaffins’ to the stand, where he asserted his right against self-incrimination.
Accordingly, Chaffins was unavailable. As for the second element, Chaffins’
statements that he robbed Bob’s Carryout with Newsome clearly expose him to
criminal liability.
{¶38} Newsome, however, contends that there were insufficient
corroborating circumstances indicating the trustworthiness of Chaffins’
statements. We disagree. Recker and Chaffins’ relationship, which can best be
described as a friendship, is a circumstance indicating trustworthiness. State v.
Yarbrough, 95 Ohio St.3d 227, 236 (2002) (“[W]here a declarant makes a
statement to someone with whom he has a close personal relationship, such as a * -19- Case No. 12-12-03
* * friend, courts usually hold that the relationship is a corroborating circumstance
supporting the statement’s trustworthiness.”), citing Green v. Georgia, 442 U.S.
95, 97, 99 S.Ct. 2150 (1979). Also, the fact that Chaffins’ description of the
robbery did not shift blame solely onto Newsome, or minimize his participation in
the robbery, is a circumstance indicating trustworthiness. See State v. Issa, 93
Ohio St.3d 49, 61 (2001).
{¶39} Given the foregoing, as well as the lack of any evidence that Recker
was working as a government informant or was receiving something in exchange
for his testimony, we find that the trial court did not abuse its discretion when it
determined that Chaffins’ statements were trustworthy and consequently
admissible under the statements against interest hearsay exception.3
Harmless Error
{¶40} Assuming arguendo Recker’s testimony describing Chaffins’
statements was inadmissible, admission of Recker’s testimony would be harmless
error in light of the overwhelming circumstantial evidence implicating Newsome
in the robbery.
{¶41} In sum, we find that admission of Recker’s testimony describing
Chaffins’ statements about the robbery was not violative of the Confrontation 3 In addition to arguing that Chaffins’ statements are not admissible as statements against interest, Newsome also argues that Chaffins’ statements do not qualify as statements of a co-conspirator, under Evid.R. 801(D)(2)(e). We need not reach this argument, however, since we have determined that Chaffins’ statements are admissible as statements against interest. -20- Case No. 12-12-03
Clause, the rule announced in Bruton, and was admissible pursuant to the
statement against interest hearsay exception. Moreover, even if Recker’s
testimony was inadmissible its admission would be harmless error in light of the
other evidence presented at trial.
{¶42} Accordingly, we overrule Newsome’s second, third, fourth, and fifth
assignments or error.
Assignments of Error Nos. VI & VII
{¶43} In his sixth and seventh assignments of error, Newsome contends
that he was denied effective assistance of counsel. As to his sixth assignment of
error, Newsome argues that trial counsel should have filed a motion to suppress
statements he made to law enforcement. As to his seventh assignment of error,
Newsome argues that counsel should have challenged the empanelment of one of
the jurors during voir dire. We disagree with both contentions.
{¶44} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d
136 (1989), paragraph two of syllabus. To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different. Id. at paragraph three of syllabus. “Reasonable -21- Case No. 12-12-03
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by
constitutional amendment on other grounds as recognized by Smith, 80 Ohio St.3d
at 103.
{¶45} Furthermore, the court must look to the totality of the circumstances
and not isolated instances of an allegedly deficient performance. State v. Malone,
2d Dist. No. 10564 (Dec. 13, 1989). “Ineffective assistance does not exist merely
because counsel failed ‘to recognize the factual or legal basis for a claim, or failed
to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray, 477 U.S.
527, 535, 106 S.Ct. 2661 (1986).
Motion to Suppress
{¶46} “[F]ailure to file a suppression motion does not constitute per se
ineffective assistance of counsel.” Madrigal, 87 Ohio St.3d at 389, quoting
Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574 (1986). There must
also be a reasonable probability that the motion will be successful. State v. Ligon,
3d Dist. No. 4-2000-25, (June 18, 2001). Thus, this court’s determination of
whether Newsome’s trial counsel was ineffective relies upon whether there was a
reasonable probability that a motion to suppress would have been successful.
State v. Pierce, 3d Dist. No. 11-09-05, 2010-Ohio-478, ¶ 34.
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{¶47} Newsome argues that trial counsel should have filed a motion to
suppress statements he made to law enforcement. Several days after the robbery
occurred, Chief Hardy interviewed Newsome at the Putnam County Sheriff’s
Office.4 The interview was recorded (“the recording”) and segments of the
interview were played during trial. Newsome argues that he was neither informed
of nor waived his Miranda rights prior to interview.5 Newsome bases his
argument on the fact that none of the interview segments played during trial
contained a Miranda warning. As a result, Newsome argues that there was a
reasonable probability that a motion to suppress would have been successful had it
been filed with the trial court. We find Newsome’s argument unavailing.
{¶48} The mere fact that none of the interview segments played at trial
contained a Miranda warning does not, as Newsome argues, establish that Chief
Hardy failed to administer Miranda warnings. The record reveals that the State
forwarded the recording to Newsome’s trial counsel. (Docket No. 17, p. 2).
Attorneys licensed by the State of Ohio are presumed to provide competent
representation, thus we must afford a high level of deference to the performance of
trial counsel. State v. Plotts, 3d Dist. No. 15-10-08, 2011-Ohio-900, ¶ 37. Given
4 We note that Newsome was in custody at the time of the interview. 5 Although the record contains the interview recording in its entirety, the recording was not admitted into evidence. Therefore, we are not permitted to consider those portions of the recording not presented at trial, and thus cannot independently determine whether Chief Hardy administered Miranda warnings to Newsome.
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this presumption, we must presume that Newsome’s counsel reviewed the
recording. Without evidence to the contrary, we can only surmise that the
recording captured Chief Hardy administering Miranda warnings to Newsome. If
this were not the case, we would expect, and the law presumes, that Newsome’s
counsel would have filed a motion to suppress the interview. Consequently, we
find that Newsome has failed to demonstrate that there was a reasonable
probability that a motion to suppress would have been successful.
Juror Challenge
{¶49} Newsome contends that he was denied effective assistance of counsel
because counsel did not challenge Juror Dalton Yenser (“Juror Yenser”) for cause.
Specifically, Newsome argues that counsel should have challenged Juror Yenser
for cause because he was acquainted with Newsome and had knowledge of the
robbery. We disagree.
{¶50} The decision whether to challenge a juror for cause is a trial tactic.
See State v. Hill, 3d Dist. No. 11-03-07, 2003-Ohio-5123, ¶ 30. Debatable trial
tactics, without more, will not be grounds for a claim of ineffective assistance. Id.,
citing State v. Clayton, 62 Ohio St.2d 45, 49 (1980). In particular, when jurors
demonstrate during voir dire that they are able to remain fair and impartial, no
action will lie for ineffective assistance of counsel for not seeking their removal.
State v. Bofia, 3d Dist. No. 7-03-12, 2004-Ohio-3018, ¶ 14, citing Hill at ¶ 29. -24- Case No. 12-12-03
{¶51} During voir dire, the trial court asked the prospective jurors whether
they had any knowledge or information concerning the robbery of Bob’s Carryout.
Several jurors responded in the affirmative, including Juror Yenser. The trial
court questioned Juror Yenser about his knowledge of the robbery, resulting in the
Juror Yenser: I was actually right down the road when it happened. I didn’t see anything; but I was - - we came back from the racetrack, and I was told that it just happened.
The Court: All right. Do you know any of the individuals involved in these allegations?
Juror Jenser: Just the people that called it in. I didn’t really know anything else about it.
The Court: Do you feel that you could put out of you mind any information that you would have and judge this case solely from what you would see and hear in the courtroom?
Juror Yenser: Yes. Trial Tr., p. 15.
{¶52} The trial court also asked the prospective jurors whether they knew
Newsome, to which Juror Yenser responded in the affirmative. The trial court
questioned Juror Yenser about his acquaintance with Newsome, resulting in the
Juror Yenser: [Newsome] used to be a close friend of my cousin’s.
The Court: All right. Did you have any contact with Mr. Newsome?
Juror Yenser: Yes. -25- Case No. 12-12-03
The Court: In the past did you have contact with him?
Juror Yenser: Yes, he used to be my neighbor at one point in time.
The Court: All right. And your instruction would be to judge this case solely from what you would see and hear from the witness stand and that you be a fair and impartial juror to both sides. Knowing that the defendant in this case is Joshua Newsome, do you feel that you could be a fair and impartial juror?
Juror Yenser: Yeah.
The Court: Do you feel you could put out of you mind those past contacts that you may have had with him?
Juror Yenser: Yes.
The Court: When was the last contact you had with him?
{¶53} Juror Yenser: Three or four years ago probably.
The Court: All right. Do you feel comfortable in being a juror, knowing that you have some past contact?
Juror Yenser: Yeah. Trial Tr., p. 17-18.
In addition to the foregoing colloquy, the State and Newsome’s counsel also
questioned Juror Yenser about his prior contacts with Newsome and whether he
could remain fair and impartial in light of his acquaintance with Newsome. In
each instance, Juror Yenser testified that his acquaintance with Newsome would
not affect his ability to be impartial and fair.
-26- Case No. 12-12-03
{¶54} Though Juror Yenser was both aware of the robbery and familiar
with Newsome, we find, given his responses during voir dire, that he was capable
of being a fair and impartial juror. Juror Yenser knew little about the robbery
beyond the fact that it occurred and he knew the people who reported the robbery
to law enforcement. Given the paucity of Juror Yenser’s knowledge about the
robbery, there was no reason for Newsome’s counsel to doubt Juror Yenser when
he testified that he was capable of setting his knowledge of the robbery aside and
remain fair and impartial.
{¶55} Similarly, Juror Yenser testified that his acquaintance with Newsome
would not affect his ability to be fair and impartial. During voir dire, Juror Yenser
testified that he and Newsome were neighbors approximately ten years prior.
Juror Yenser also testified that, through his cousin, he had contact with Newsome,
but that he had not seen Newsome in four years. At best, Juror Yenser’s
acquaintance with Newsome was distant and casual, not close and ongoing. Given
the nature of Juror Yenser’s acquaintance with Newsome, there was no reason for
Newsome’s counsel to doubt Juror Yenser when he testified that his acquaintance
with Newsome would not affect his ability to be fair and impartial. See State v.
Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 208, citing Miller v. Francis, 269
F.3d 609, 618 (6th Cir.2001).
-27- Case No. 12-12-03
{¶56} Based on Juror Yenser’s testimony, we find that he was able to
demonstrate that he could remain fair and impartial. Accordingly, counsel’s
failure to challenge Juror Yenser for cause did not deny Newsome effective
assistance of counsel. Bofia, 2004-Ohio-3018, at ¶ 14.
{¶57} Accordingly, we overrule Newsome’s sixth and seventh assignments
of error.
{¶58} In his tenth assignment of error, Newsome contends that the
combined effect of all the errors in this case denied him a right to a fair trial. We
disagree.
{¶59} Pursuant to the cumulative error doctrine, a conviction will be
reversed where the cumulative effect of the errors in a trial deprives a defendant of
the constitutional right to a fair trial even though each of the errors in and of
themselves are not cause for reversal. State v. Powell, 132 Ohio St.3d 233, 2012-
Ohio-2577, ¶ 223, citing State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph
two of the syllabus. Since we have found no errors, the doctrine of cumulative
error is not applicable in the instant case.
{¶60} Accordingly, we overrule Newsome’s tenth assignment of error.
-28- Case No. 12-12-03
{¶61} In his eighth assignment of error, Newsome contends that the trial
court erred when it sentenced him to the maximum sentence. We disagree.
{¶62} “A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record or otherwise contrary to law.” State v. Barrera, 3d
Dist. No. 12-12-01, 2012-Ohio-3196, ¶ 20, citing R.C. 2953.08(G)(2). Clear and
convincing evidence is that “which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. An appellate
court should not, however, substitute its judgment for that of the trial court
because the trial court is “‘clearly in the better position to judge the defendant’s
likelihood of recidivism and to ascertain the effect of the crimes on the victims.’”
State v. Watkins, 3d Dist. No. 2-04-08, 2004-Ohio-4809, ¶ 16.
{¶63} R.C. Chapter 2929 governs sentencing. When sentencing a felony
offender, the trial court must consider R.C. 2929.11, which sets forth the
overriding purposes of felony sentencing, providing, in relevant part, as follows:
(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those -29- Case No. 12-12-03
purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
{¶64} The trial court must also consider the factors set forth under R.C.
2929.12(B), (C), (D), and (E) relating to the seriousness of the offender’s conduct
and the likelihood of the offender’s recidivism, and “may consider any other
factors that are relevant to achieving those purposes and principles of sentencing.”
State v. Hartley, 3d Dist. No. 14-11-29, 2012-Ohio-4108, ¶ 31; R.C. 2929.12(A).
{¶65} Newsome argues that the trial court erred in imposing the maximum
sentence because it commented on charges pending against him in unrelated cases
and the fact that he could have been charged with aggravated robbery, a felony of
the first degree. We find Newsome’s argument unavailing.
{¶66} There is no evidence that the comments described above
prejudicially affected the trial court’s sentencing decision. As for the pending
charges, the trial court explicitly stated that the pending charges did not factor into
its sentencing decision. As for the possibility of being charged with a first degree -30- Case No. 12-12-03
felony, we fail to see how this comment prejudicially affected the trial court’s
sentencing decision. If anything, mention of this possibility simply highlighted
the serious nature of the offense, which is to be considered when sentencing a
felony offender. See R.C. 2929.12(B).
{¶67} Notwithstanding the comments Newsome complains of on appeal,
Newsome points to nothing that clearly and convincingly demonstrates that the
record does not support the trial court’s imposition of the maximum sentence.
During the sentencing hearing, the trial court “considered the record, oral
statements, Defendant’s prior pre-sentence investigation report, and any victim
impact statements, as well as the principles and purposes of sentencing under Ohio
Revised Code Section 2929.11 & 2929.12.” Judgment Entry of Sentencing, p. 1.
Our independent review of these materials, particularly the pre-sentence
investigation report (“PSI”), reveals that Newsome’s sentence is supported by the
record.
{¶68} According to the PSI, Newsome, who was 24 years old at the time of
sentencing, had an extensive criminal history dating back to 1999. During the
sentencing hearing, the trial court addressed Newsome’s criminal history which
included offenses committed while he was a juvenile and an adult. These offenses
included, but are not limited to, theft, attempted theft, domestic violence, criminal
damaging, probation violation, failure to comply with an order of a police officer, -31- Case No. 12-12-03
disorderly conduct, obstructing official business, attempted grand theft of a motor
vehicle, and contributing to the delinquency of a minor. In light of Newsome’s
extensive criminal history and the violent nature of the robbery at issue in the
instant case, we find that the trial court’s decision to sentence Newsome to the
maximum sentence is supported by the record.
{¶69} Accordingly, we overrule Newsome’s eighth assignment of error.
{¶70} In his ninth assignment of error, Newsome contends that the trial
court did not properly inform him of the consequences for violating post-release
control. Specifically, Newsome argues that pursuant to R.C. 2967.28(F)(3) the
trial court was required to, and failed to, inform him “about the possibility of a
sentence up to nine months as [a] post-release control sanction.” Appellant’s Br.,
p. 22. We disagree.
{¶71} R.C. 2929.19 governs the trial court’s duty to conduct a sentencing
hearing. In an earlier version of R.C. 2929.19, the trial court was required to
notify a felony offender about the possibility that he or she could be sentenced to a
nine-month prison term if he or she violated the terms of their post-release control.
However, this requirement was removed via amendments to R.C. 2929.19 that
took effect on March 23, 2000. Am.Sub.S.B. No. 107 (1999).
-32- Case No. 12-12-03
{¶72} At the time of Newsome’s sentencing, R.C. 2929.19(B) provided, in
relevant part, as follows:
(2) * * * if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
(c) Notify the offender that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the * * * second degree[.]
(e) Notify the offender that, if a period of supervision is imposed following the offender’s release from prison, as described in division (B)(2)(c) or (d) of this section, and if the offender violates that supervision or a condition of post-release control imposed under division (B) of section 2967.131 of the Revised Code, the parole board may impose a prison term, as part of the sentence, of up to one-half of the stated prison term originally imposed upon the offender.
Notably, the foregoing language does not require the trial court to notify a felony
offender that he or she may be sentenced to a nine-month prison term if he or she
violates the terms of their post-release control. Instead, R.C. 2929.19(B), simply
requires the trial court to notify the felony offender of two things about post-
release control, to wit: (1) the offender will be supervised under R.C. 2967.28,
which governs post-release control, after they leave prison; and (2) if the offender
violates post-release control they are subject to an additional period of -33- Case No. 12-12-03
incarceration of up to one-half of the stated prison term originally imposed upon
them.6 R.C. 2929.19(B)(2)(c), (e).
{¶73} Given the legislative history of R.C. 2929.19 and its plain language,
we find that the trial court was not required to notify Newsome of the possibility
that he could be sentenced to a nine-month prison term if he violated the terms of
his post-release control. State v. Zganjer, 8th Dist. No. 94724, 2011-Ohio-606.
{¶74} During the sentencing hearing, the trial court advised Newsome that
he was subject to mandatory post-release control for 3 years and that violating the
terms of his post-release control could result in the imposition of a prison term of
up to one-half his original sentence, or four years. We find that the trial court’s
advisements concerning post-release control were both proper and sufficient to
satisfy R.C. 2929.19(B). Therefore, we find Newsome’s argument unavailing.
{¶75} Accordingly, we overrule Newsome’s ninth assignment of error.
{¶76} Having found no error prejudicial to Newsome herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
PRESTON and WILLAMOWSKI, J.J., concur.
6 In addition to these requirements, this court and others have recognized that the trial court must also notify the defendant of whether post-release control is mandatory or discretionary and the duration of post- release control. State v. Holdcroft, 3d Dist. No. 16-10-13, 2012-Ohio-3066, ¶ 29, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 27-29.
-34-