[Cite as State v. Potts, 2018-Ohio-540.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 16CA010911
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE NICHALOS POTTS COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 15CR091956
DECISION AND JOURNAL ENTRY
Dated: February 12, 2018
{¶1} CARR, Judge.
{¶2} Defendant-Appellant Nichalos Potts appeals from his convictions in the Lorain
County Court of Common Pleas. This Court affirms.
I.
{¶3} In July 2015, Potts was indicted on one count of attempted murder, two counts of
felonious assault, two counts of aggravated robbery, and two counts of tampering with evidence.
All but one of the counts of tampering with evidence included a firearms specification. The
charges stemmed from a shooting that happened the night of December 23, 2014, outside an
abandoned residence on Gary Avenue. Potts’ friend, Kashaun Sibley, was separately indicted
based upon his alleged participation in the crimes. Potts’ brother, who was also tied to the
crimes, pleaded guilty to two felonies and a misdemeanor, including complicity to commit
felonious assault, in exchange for his testimony against Potts and Sibley. 2
{¶4} The matters were consolidated for purposes of trial, at which Potts and Sibley
were represented by the same attorney. Ultimately, the jury found Potts guilty of all of the
charges. Potts filed a motion for a new trial, which was subsequently denied. Thereafter, Potts
was sentenced to an aggregate term of 17 years in prison.
{¶5} Potts has appealed, raising four assignments of error for our review, which will be
addressed out of sequence to facilitate our analysis.
II.
ASSIGNMENT OF ERROR IV
THE VERDICTS FOR ATTEMPTED MURDER, AGGRAVATED ROBBERY, FELONIOUS ASSAULT, AND TAMPERING WITH EVIDENCE, AS DEFINED BY THE COURT, IN COUNTS ONE, TWO, THREE, FOUR, FIVE, AND SIX WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶6} Potts argues in his fourth assignment of error that the verdicts for attempted
murder, felonious assault, aggravated robbery, and tampering with evidence are against the
manifest weight of the evidence. Potts essentially argues that the State’s witnesses were not
credible and the weight of the evidence does not support that Potts committed the offenses.
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence, the
appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the
conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v. 3
Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a
judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.
{¶7} Potts’ brother, who was sometimes known as “Rome,” first met the victim
sometime late in 2014. Potts’ brother was walking to McDonald’s and the victim, who was
driving, noticed Potts’ brother and thought he knew him. The victim pulled up near Potts’
brother and began talking to him. The victim realized he did not know Potts’ brother but the two
started talking about marijuana, as the victim was looking for a supplier. Potts’ brother told the
victim that he could help the victim with that. The two exchanged phone numbers at that time.
However, Potts’ brother had to put the information in Potts’ phone as Potts’ brother was using
Potts’ phone because Potts’ brother did not have a phone. Potts’ brother testified that, at one
point, the victim sent Potts’ brother text messages that Potts’ brother interpreted as being of a
sexual nature and that evidenced that the victim was gay. Potts’ brother did not respond to those
texts.
{¶8} On December 23, 2014, Potts’ brother went over to Potts’ house and asked Potts
to get him a bottle of liquor. Potts informed his brother that the victim had texted Potts and was
“trying to hook up or whatever[.]” Potts, Potts’ brother, and Sibley, whom Potts’ brother knew
as Tushay, went to JR Foods. Potts parked the truck on a nearby street and told his brother that
they were going to rob the victim because Potts had heard the victim had some money. Potts
pulled a gun out of the side of the middle console and put it in his pants. Potts’ brother told Potts
that he was not going to do it, but Potts told him that he had to because the victim knew Potts’
brother. The three walked down Gary Avenue to an abandoned residence that was part of a
duplex. Potts’ brother told police that he also noticed that Sibley had a gun. Potts texted the
victim and told him where to go. Then the three waited on the back porch of the residence. 4
{¶9} The resident from the other half of the duplex came home that evening to find
three people wearing black hoodies sitting on the porch in the backyard. He did not know who
they were. He said hello to them and they said they were waiting on their friend. The resident
then went inside. A couple minutes later he heard four or five gunshots and heard someone
screaming that he had been shot. The resident then saw a man fall in the resident’s front yard.
The resident called 911 but did not go outside. He did, however, observe a car pull up, and saw a
large black man get out, check on the victim, and then leave.
{¶10} Matthew Day was driving down Gary Avenue going to visit someone who lived
across the street from the crime scene. When he pulled up to the scene, he saw three or four
men standing in the front yard talking. Day then saw flashes and heard gunshots and the three or
four men took off running towards Homewood. Day then noticed the victim and proceeded to
provide aid and called for an ambulance. Once Day could hear the ambulance getting close, Day
left.
{¶11} Potts’ brother described the events that took place once the victim arrived. Potts’
brother was waiting for the victim on the sidewalk and walked with him down the driveway.
Sibley was waiting on the back porch and Potts was waiting on the side of the house next door.
When they got halfway down the driveway, both Potts and Sibley ran at the victim and someone
said “give it up.” Potts’ brother then heard gunshots and ran. Potts’ brother told police that both
Potts and Sibley were pointing guns at the victim. Pott’s brother saw the victim fall and heard
him screaming. Potts and his brother ran towards Homewood and Potts tossed the gun a couple
houses down. The two went to Mario Escobar’s and Corinna Magrum’s house.
{¶12} Michael Casella was sitting on his friend’s porch on the night of the shooting
when he heard at least two gunshots and ran towards Gary Avenue. There he saw three men 5
running. The men paused near Michal McCoy’s house and then shortly thereafter two of the
men kept going straight and one turned off towards the right. The next day, Michael McCoy
found a pistol outside his house and sold it for money and drugs. Law enforcement officers
contacted Michel McCoy about the weapon but were unable to recover it.
{¶13} Magrum testified that she and her boyfriend, Escobar, were drug addicts at the
time of the events at issue, but both Magrum and Escobar denied being high at the time Potts and
his brother arrived at their house. Both had prior criminal records. They both knew Potts and
Sibley, as Potts and Sibley sold drugs to them. According to Magrum, that night, Potts came
running into the house and kept saying that he needed to get up to the bathroom to get his clothes
off and he asked for chemicals like bleach to use to clean himself. Both Potts and his brother
began scrubbing themselves with bleach and gave their clothes to Magrum. Magrum washed
both of their clothes. Potts’ brother told the police that, while they were there, he overhead Potts
say, “Did you see me shoot him[?]” Magrum remembered hearing “them saying they had to get
gun residue off their hands, they shot at somebody or shot a gun.” Magrum testified that while
Sibley did come to the house, he stayed outside, and Potts and his brother later left with Sibley.
Escobar testified that Sibley did come in the house but did not arrive with Potts and Potts’
brother and instead came later. While Potts and Sibley were upstairs, Escobar overheard Potts
telling Sibley that Potts “popped him.” Escobar testified that Potts and Sibley were picked up by
a van. Escobar acknowledged that his felony charge was reduced to a misdemeanor in exchange
for his testimony.
{¶14} The victim’s version of events differed fairly significantly from Potts’ brother’s
version. The victim agreed that he met Potts’ brother, whom he knew as Rome, in late 2014
when he mistook Potts’ brother for an old friend. The two talked about marijuana and 6
exchanged numbers. According to the victim, Potts’ brother sent the victim sexual messages but
the victim declined Potts’ brother’s advances. On December 23, 2014, the victim received some
texts from the number he associated with Potts’ brother’s phone asking if he could hang out. The
victim agreed to do so. The victim stopped and picked up a bottle of alcohol and headed to the
address he was provided on Gary Avenue. The victim called when he arrived to clarify the
location of the house and was told to park on the street.
{¶15} The victim was met by someone who “look[ed] a little different” than he
remembered. That person was very quiet on their walk up the driveway. When they got to the
point where they would turn left to go into the house, “a gentleman pulled up from * * * on the
stump, and looked [him] in his face and said, ‘We got you[.]’” The victim started running and
was yelling and screaming and then collapsed in the front yard. He saw two individuals running
from the scene. At first the victim did not realize he had been shot but he shortly thereafter
discovered the bullet hole in his abdomen area. The victim testified that a man came up to him
with a cell phone and told the victim that the man would call the police. The victim was
thereafter taken to a hospital. The bullet damaged the victim’s kidneys and spine and his injuries
required a lengthy hospital stay.
{¶16} At trial, the victim identified Sibley as the only shooter and Potts as the individual
who walked the victim down the driveway. However, the victim acknowledged that he told the
police on more than one occasion that it was the man he knew as Rome, Potts’ brother, who
walked him down the driveway. Prior to trial, the victim learned that three people were
suspected of being involved, including Sibley and Potts, and began to investigate them on
Facebook. It was only at trial that the victim identified Sibley as the shooter and Potts as the
individual who walked him down the driveway. While one of the victim’s prior interviews with 7
police was played for the jury in support of defense counsel’s cross-examination, that evidence
was not admitted into evidence and is not in the record before this Court.
{¶17} Cielo Rodriguez, a police officer with the Lorain Police Department responded to
the scene. He encountered the victim in a front yard of Gary Avenue, which he came to discover
was next to the yard where the shooting took place. The victim’s wallet was found some
distance from the victim along with keys and a bottle of liquor. At trial, the victim additionally
identified his red hat and glasses as being among the items strewn about the crime scene. The
victim told Officer Rodriguez that he came to Gary Avenue to meet someone he knew as Rome.
He and Rome walked up the driveway and the victim was confronted by an unknown black man
who told the victim to “hold on,” pointed a gun at the victim, and shot him twice. The victim ran
to the front yard, fell, and then crawled to a neighboring yard.
{¶18} Mark McCoy, then a detective with the Lorain Police Department, investigated
the crime scene. He located 5 cartridge casings; three were found in the back area of the
property and two were found in the driveway. The cartridge casings and the bullet recovered
from the victim were submitted to the Ohio Bureau of Criminal Identification (“BCI”). A
forensic scientist with the BCI who worked in the firearms section determined that all five
cartridge casings were .380 auto-fired cartridge cases and the bullet was consistent with a .380
auto-fired bullet. Three of the cartridge casings were fired from one gun and two of the cartridge
casings were fired from another gun.
{¶19} The FBI also became involved in the investigation. Special agents were able to
determine that the phone associated with the phone number that the victim believed belonged to
Rome was used by both Potts and Potts’ brother. On the night of the shooting, the phone was in
the vicinity of Gary Avenue during the time of the shooting. 8
{¶20} Potts and Sibley testified in their defense. They denied any involvement in the
crimes and denied ever meeting the victim. However, they admitted to selling drugs. Potts
testified that he often lent his phone to his brother for sometimes hours at a time. Potts admitted
to going over to Magrum’s and Escobar’s house on December 23, 2014, but said he did so
around noon to sell them drugs and did not return there that day. Sibley denied spending any
time with Potts or Potts’ brother on December 23, 2014.
{¶21} On appeal, Potts asserts the verdicts are against the weight of the evidence
because the State’s witnesses were not credible. Potts points out that the victim’s version of
events was inconsistent with Potts’ brother’s version of events and even contradicted what the
victim earlier reported to the police. Thus, according to Potts, the jury should not have believed
what the victim had to say about Potts’ and Sibley’s involvement. Potts also notes that Potts’
brother’s testimony should be viewed with suspicion in light of the deal that Potts’ brother struck
with the State in exchange for his testimony. Potts points to similar issues with Magrum’s and
Escobar’s testimony.
{¶22} After a thorough review of the record, we cannot say that the jury’s verdicts were
against the manifest weight of the evidence based upon Potts’ arguments. The jury was
instructed on complicity and was aware that it could find Potts guilty of the crimes as the
principal offender or if it concluded that Potts solicited another to commit the offenses, aided or
abetted another in committing the offenses, conspired with another to commit the offenses, or
caused an innocent or irresponsible person to commit the offenses.
{¶23} The jury was aware that many of the State’s witnesses had criminal records and
engaged in illegal activity. The jury was also aware that some of the witnesses received plea
deals from the State in exchange for their testimony. Nonetheless, we remain mindful that the 9
jury had an opportunity to view the witnesses and “was in the best position to assess the
credibility of the evidence presented by the parties at trial.” State v. Klingel, 9th Dist. Lorain No.
15CA010876, 2017-Ohio-1183, ¶ 22. “[T]his Court will not overturn the [] verdict[s] on a
manifest weight of the evidence challenge simply because the jury chose to believe certain
witnesses’ testimony.” (Internal quotations and citations omitted.) State v. Binford, 9th Dist.
Summit No. 27950, 2016-Ohio-7678, ¶ 10. To the extent that Potts challenges the reliability of
the victim’s testimony, we note that the victim’s interview with police that was played for the
jury during defense counsel’s cross-examination of the victim was not admitted into evidence
and is not in this Court’s record. Accordingly, this Court cannot evaluate the credibility of the
victim to the same extent the jury could.
{¶24} The jury could have reasonably found Potts’ brother’s testimony credible in light
of other witness testimony that it heard and likewise could have reasonably questioned some or
all of the victim’s testimony in light of the stressful circumstances the victim confronted. See
State v. Sibley, 9th Dist. Lorain No. 16CA010908, 2017-Ohio-7015, ¶ 31 (noting that “the trier
of fact is free to believe all, part, or none of the testimony of each witness.”) (Internal quotations
and citations omitted.) If the jury believed Potts’ brother’s testimony and that of several of the
other witnesses, the jury could have reasonably concluded that Potts conspired with Sibley to rob
the victim and that both Sibley and Potts shot at the victim during what the jury could have
reasonably found to be a robbery. There is no dispute that the victim was shot during the events
of that evening or that the cartridge casings found at the scene were fired from two different
weapons. There was also evidence that Potts discarded a weapon while he was fleeing the crime
scene and scrubbed his body in an effort to remove gunshot residue from his person.
Considering the totality of the evidence presented, Potts has not established that the jury lost its 10
way in finding Potts guilty of attempted murder, two counts of felonious assault, two counts of
aggravated robbery, and two counts of tampering with evidence.
{¶25} Potts’ fourth assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE VERDICT FOR AGGRAVATED ROBBERY IN COUNTS TWO AND THREE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶26} Potts argues in his third assignment of error that his convictions for aggravated
robbery were based upon insufficient evidence. Specifically, Potts contends that there was
insufficient evidence that Potts took anything from the victim or attempted to take anything from
the victim.
{¶27} When reviewing the sufficiency of the evidence, this Court must review the
evidence in a light most favorable to the prosecution to determine whether the evidence before
the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279
(1991).
An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus.
{¶28} Potts was found guilty of two counts of aggravated robbery, one in violation of
R.C. 2911.01(A)(1) and one in violation of R.C. 2911.01(A)(3).
{¶29} R.C. 2911.01(A) states in relevant part:
No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall * * * 11
(1) Have a deadly weapon on or about the offender’s person or under the offender’s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it;
***
(3) Inflict, or attempt to inflict, serious physical harm on another.
{¶30} As discussed above, Potts’ brother testified that Potts told Potts’ brother that the
three of them were going to rob the victim because Potts had heard that the victim had some
money. Potts texted the victim with the details of where to meet. According to Potts’ brother,
Potts took a gun out of the truck and put it in his pants and the three walked to the abandoned
house on Gary Avenue to wait for the victim to arrive. As Potts’ brother was walking the victim
down the driveway, Potts and Sibley ran at the victim and someone shouted, “give it up.” Potts’
brother told police that both Potts and Sibley pointed guns at the victim. Shots were fired and
the victim was shot. Police discovered the victim’s wallet and keys a distance from where the
victim was found. The victim also identified his hat and glasses as being among the objects
strewn about the crime scene. Moreover, there was testimony that Potts discarded the gun while
fleeing and then proceeded to scrub his arms with bleach to remove gunshot residue.
{¶31} Considering the foregoing in a light most favorable to the prosecution, we
conclude that the State presented sufficient evidence from which a jury could reasonably
conclude that Potts committed two counts of aggravated robbery. There was testimony that Potts
planned, along with Sibley and Potts’ brother, to rob the victim by luring him to an abandoned
house. There was also testimony that Potts took a gun with him, ran at the victim upon his
approach, and that someone in the group told the victim to “give it up.” The victim was then
shot. During the investigation, the victim’s wallet was found on the ground a distance away
from the victim. From the evidence, the jury could have reasonably found that, at the very least,
Potts attempted to commit a theft offense, or was complicit in the attempt to do so. See Sibley, 12
2017-Ohio-7015, ¶ 20, quoting State v. Mitchell, 10th Dist. Franklin No. 10AP-756, 2011-Ohio-
3818, ¶ 26 (“‘It is not necessary * * * that a theft actually be completed for an aggravated
robbery to occur because, as clearly indicated by R.C. 2911.01, an attempted theft is
sufficient.’”). During that attempt, the jury could have likewise concluded that Potts, either as
the principal or acting in complicity with Sibley and Potts’ brother, brandished, displayed,
indicated possession of, or used a firearm and caused, or attempted to cause, serious physical
harm to the victim. See R.C. 2911.01(A)(1),(3). Thus, in light of Potts’ limited argument, we
determine there was sufficient evidence to support the aggravated robbery convictions. See
Sibley at ¶ 20.
{¶32} Potts third assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE DUAL REPRESENTATION OF APPELLANT NICHALOS POTTS AND KASHAUN SIBLEY WAS A CONFLICT OF INTEREST AND CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶33} Potts argues in his first assignment of error that his trial counsel’s representation
of both Potts and Sibley at the consolidated trial was a conflict of interest that amounted to
ineffective assistance of counsel. In so doing, he appears to also challenge the extent of the
hearing the trial court had on the subject, arguing that “the court was too conciliatory toward the
[D]efendants” and that the trial court’s expression of concern about possible delays that would
result if a conflict did arise later “might have deterred [] Potts from requesting new counsel.”
{¶34} “The Sixth Amendment right to assistance of counsel embraces the correlative
right to representation that is free from conflicts of interest.” State v. Worrell, 9th Dist. Summit
Nos. 23378, 23409, 2007-Ohio-7058, ¶ 23. “[W]here a trial court knows or reasonably should
know of an attorney’s possible conflict of interest in the representation of a person charged with 13
a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually
exists.” Id. at ¶ 25, quoting State v. Gillard, 64 Ohio St.3d 304, 311(1992). “Where a trial court
breaches its affirmative duty to inquire, a criminal defendant’s rights to counsel and to a fair trial
are impermissibly imperiled and prejudice or adverse effect will be presumed.” (Internal
quotations and citations omitted.) Worrell at ¶ 25.
{¶35} Here, we conclude that the trial court met its initial duty to inquire into whether a
conflict existed. At the time that Potts’ trial counsel filed his notice of appearance, he notified
the trial court that he was also representing Sibley. Potts’ trial counsel attached a signed
potential conflict waiver form to his notice of appearance. “The State subsequently made a
motion to prohibit defense counsel from representing both Potts and Sibley due to a potential
conflict of interest stemming from the dual representation. The trial court held a hearing on the
State’s motion, at which time the trial court conducted an extensive inquiry concerning the
potential conflict of interest.” Sibley, 2017-Ohio-7015, at ¶ 10. The trial court addressed trial
counsel and asked questions of both Potts and Sibley individually. The trial court pointed out
some of the possible issues that could arise by having the same attorney represent both of them.
Trial counsel maintained that he did not believe that there would be any conflict. Both Potts and
Sibley asserted that they wanted to be represented by the same attorney, notwithstanding the
information provided by the trial court. Nonetheless, “[t]he trial court allowed Potts and Sibley
‘to think about [the dual representation] over the weekend.’ When neither [] indicated the
following week that they wished to reconsider the dual representation, the trial court ruled, over
the State’s objection, that Potts and Sibley could be represented by the same attorney.” Id.
Given the foregoing, we cannot say that the trial court failed to adequately investigate any
potential conflict. See Worrell at ¶ 26. 14
{¶36} Potts also argues that there was an actual conflict of interest, thereby establishing
trial counsel’s ineffective assistance. We note that Potts did not object at trial to the joint
representation.
{¶37} “‘In order to establish a violation of the Sixth Amendment, a defendant who
raised no objection at trial must demonstrate that an actual conflict of interest adversely affected
his lawyer’s performance.’” Worrell, 2007-Ohio-7058, at ¶ 23, quoting Cuyler v. Sullivan, 446
U.S. 335, 348 (1980). “To establish the constitutional predicate for a claim of ineffective
assistance of counsel, a defendant must show that his counsel actively represented conflicting
interests. A defendant who shows that a conflict of interest actually affected the adequacy of his
representation need not demonstrate prejudice in order to obtain relief.” (Internal citation
omitted.) Worrell at ¶ 23.
{¶38} This Court has stated that
[a]n actual conflict of interest, for purposes of the Sixth Amendment, is a conflict of interest that adversely affects counsel’s performance. Thus, to prove an actual conflict of interest, the defendant must show that his counsel actively represented conflicting interests, and that the conflict actually affected the adequacy of his representation. In order to show such a conflict, a defendant must point to specific instances in the record to suggest an actual conflict or impairment of [his] interests. An adverse effect is established where the defendant points to some plausible alternative defense strategy or tactic [that] could have been pursued, but was not because of the actual conflict impairing counsel’s performance. While it is not necessary to prove that the defense theory would have been successful, it is necessary to show that the alternative theory was viable. Additionally, an appellant must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.
(Internal quotations and citations omitted.) State v. Jackson, 9th Dist. Summit No. 27478, 2015-
Ohio-4356, ¶ 13; see also Sibley at ¶ 9.
{¶39} Potts’ argument is somewhat difficult to follow. The essence of Potts’ argument
seems to be that Potts would have received better, more focused representation if Potts was 15
represented by an attorney who only had to address Potts’ interests. Potts does not appear to
assert that trial counsel entirely failed to pursue a strategy, argument, or defense because of a
conflict, see Jackson at ¶ 13, but instead seems to argue that trial counsel could have more fully
pursued the strategies, arguments, or defenses that benefited Potts had he only represented Potts.
However, the very nature of dual representation during a consolidated trial requires that one
attorney represents the interests of two defendants. If we were to agree with Potts’ vague,
unclear argument, we would have to conclude that essentially all dual representations involving
joint trials create actual conflicts of interest. Potts has pointed to no authority creating such a
general bar. See Worrell, 2007-Ohio-7058, at ¶ 24 (“Joint representation of multiple defendants
is not per se violative of the constitutional guarantee of effective assistance of counsel.”).
Further, we note that Potts has failed to cite to specific instances in the record demonstrating that
trial counsel failed to adequately cross-examine a witness or fully develop an argument due to a
conflict. See Jackson at ¶ 13 (“In order to show such a conflict, a defendant must point to
specific instances in the record to suggest an actual conflict or impairment of [his] interests.”).
Potts has not explained how anything trial counsel allegedly did in support of only Sibley’s case
harmed Potts’ case. Both Potts and Sibley testified at trial and asserted that they were not
involved in the shooting and were not at the crime scene at the time the crimes occurred. Neither
Potts nor Sibley implicated the other in the crimes. Accordingly, based on Potts’ argument and
the record before us, we cannot say that Potts has demonstrated that trial counsel’s dual
representation forced him to act in a way to defend Sibley that was contrary to his duty to defend
Potts. Jackson at ¶ 12. Potts’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE CONSOLIDATION OF APPELLANT NICHALOS POTTS[’] AND KASHAUN SIBLEY’S TRIALS, WITHOUT INQUIRY BY THE COURT AS 16
TO THE RISK THAT WOULD BE UNDERTAKEN BY MR. POTTS, AMOUNTED TO PLAIN ERROR.
{¶40} Potts argues in his second assignment of error that the trial court erred in
consolidating Potts’ and Sibley’s trials without holding a hearing to inquire into the risk that such
a consolidation would pose to Potts. Potts notes that he never objected to the absence of a
hearing or the consolidation and thus is limited to arguing plain error on appeal. See Crim.R.
52(B).
{¶41} The record reflects that, at some point, early in the proceedings, the State moved
to consolidate Potts’ case and Sibley’s case for trial. There is no written motion in the record,
but the subject of the State’s motion to consolidate was mentioned during a couple of pretrial
hearings. During the August 6, 2015 hearing, the prosecution raised the fact that the motion to
consolidate remained pending and stated that the prosecutor and defense counsel thought “it
might be premature to hear that [issue] right now.” The trial court agreed and noted that once the
parties thought “the issue [was] ripe for suggestion” then they should present it to the court and
the court would put the matter on the docket for a hearing. The record before this Court does not
contain a journal entry resolving the issue or indicate that any hearing was held. Nonetheless,
the cases were tried together.
{¶42} “[T]he accused bears the burden of proof to demonstrate plain error on the record
* * * and must show an error, i.e., a deviation from a legal rule that constitutes an obvious defect
in the trial proceedings[.]” (Internal quotations and citations omitted.) State v. Rogers, 143 Ohio
St.3d 385, 2015-Ohio-2459, ¶ 22. “However, even if the error is obvious, it must have affected
substantial rights, and [w]e have interpreted this aspect of the rule to mean that the trial court’s
error must have affected the outcome of the trial.” (Internal quotations and citations omitted.) Id. 17
“The accused is therefore required to demonstrate a reasonable probability that the error resulted
in prejudice * * *.” (Emphasis omitted.) Id.
{¶43} Pursuant to Crim.R. 13, “[t]he court may order two or more indictments or
informations or both to be tried together, if the offenses or the defendants could have been joined
in a single indictment or information.” “Two or more defendants may be charged in the same
indictment, information or complaint if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an offense or offenses, or in
the same course of criminal conduct.” Crim.R. 8(B). Pursuant to Crim.R. 14, “[i]f it appears
that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an
indictment, information, or complaint, or by such joinder for trial together of indictments,
informations or complaints, the court shall order an election or separate trial of counts, grant a
severance of defendants, or provide such other relief as justice requires.”
{¶44} Potts’ argument is essentially a reiteration of the argument in his first assignment
of error. He maintains he was prejudiced by the consolidation because his counsel had to divide
his focus between issues related to Potts and issues related to Sibley. While such may have been
a basis for Potts to prefer a separate trial, Potts has not demonstrated that, assuming the trial
court had held a hearing and inquired into the issue, Potts would have been legally entitled to
severance. See State v. Greathouse, 9th Dist. Summit No. 27782, 2017-Ohio-6870, ¶ 18
(discussing the standard for determining when severance is warranted). Accordingly, Potts has
not demonstrated that the trial court’s failure to hold a hearing and inquire into the issue
amounted to plain error. Potts’ second assignment of error is overruled. 18
III.
{¶45} Potts’ assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
HENSAL, P. J. CALLAHAN, J. CONCUR. 19
APPEARANCES:
BRIAN J. DARLING, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellee.