[Cite as State v. Upkins, 2026-Ohio-770.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
STATE OF OHIO, CASE NO. 17-24-12 PLAINTIFF-APPELLEE,
v.
LAMONE E. UPKINS, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court Criminal Division Trial Court No. 23CR000087
Judgment Affirmed
Date of Decision: March 9, 2026
APPEARANCES:
Victoria Bader and Annabelle Comunale for Appellant
Michael P. Doyle, Jr. for Appellee Case No. 17-24-12
MILLER, J.
{¶1} Defendant-appellant, Lamone Upkins (“Upkins”), appeals the
September 30, 2024 judgment of sentence of the Shelby County Court of Common
Pleas. For the reasons that follow, we affirm.
Facts & Procedural History
{¶2} This case arises from a series of drug buys between Upkins and a
confidential informant in August and September of 2021. On April 13, 2023, the
Shelby County Grand Jury indicted Upkins on six counts1: Counts One and Four of
trafficking in drugs in violation of R.C. 2925.03(A)(1), fifth-degree felonies; Count
Two of aggravated trafficking of drugs in violation of R.C. 2925.03(A)(1), a third-
degree felony; Counts Three and Five of trafficking in drugs in violation of R.C.
2925.03(A)(1), fourth-degree felonies; and Count Six of intimidation of a witness
in a criminal case in violation of R.C. 2921.04(B)(2), a third-degree felony. Counts
One, Three, and Four involved cocaine, Count Two involved methamphetamine,
and Count Five involved buprenorphine (suboxone). Further, Counts Two, Three
and Five alleged that the trafficking-in-drugs offenses occurred in the vicinity of a
school.
1 Upkins was previously indicted in Shelby County case number 22-CR-180 on five counts identical to Counts One through Five. However, on April 12, 2023, at the request of the State, the trial court dismissed the case without prejudice. The following day, the indictment in the instant case was filed.
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{¶3} Trial counsel entered a notice of appearance on July 26, 2023, and that
same day, Upkins appeared for arraignment and entered not-guilty pleas to the
charges in the indictment. On February 22, 2024, the trial court entered a nolle
prosequi dismissing Count Six of the indictment without prejudice.
{¶4} A jury trial was held on February 27 and 28, 2024. At the conclusion
of the trial, the jury found Upkins guilty of all counts with the exception that the
jury did not find Count Three was committed within the vicinity of a school. The
trial court accepted the jury’s verdicts, found Upkins guilty, and continued the
matter for the preparation of a presentence investigation report. The trial court filed
its judgment entry of conviction on February 29, 2024.
{¶5} At the sentencing hearing held on September 26, 20242, the trial court
sentenced Upkins to 12 months in prison on each of the five counts. The trial court
ordered the sentences to be served consecutively to each other for an aggregate term
of 60 months in prison. The judgment entry of sentence was filed on September 30,
2024.
{¶6} On appeal, Upkins raises three assignments of error for our review. For
ease of discussion, we will address the assignments of error in an order that
facilitates our resolution of the case.
2 The sentencing hearing was initially scheduled for March 29, 2024. However, Upkins failed to appear for sentencing. As a result, the trial court ordered a warrant for Upkins’s arrest, and the sentencing hearing was delayed.
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Second Assignment of Error
Mr. Upkins’ conviction was against the manifest weight of the evidence. U.S. Const., Amends. V and XIV; Ohio Const., art. I, § 10 and 16.
{¶7} In his second assignment of error, Upkins argues that his convictions
are against the manifest weight of the evidence. In support of this contention,
Upkins challenges the credibility of the confidential informant and the quality of the
video and audio recordings of the drug buys.
Standard of Review
{¶8} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine the entire record, “‘weigh[] the
evidence and all reasonable inferences, consider[] the credibility of witnesses and
determin[e] 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. Thompkins, 78 Ohio St.3d 380,
387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). A
reviewing court must, however, allow the trier of fact appropriate discretion on
matters relating to the weight of the evidence and the credibility of the witnesses.
State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-
weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily
against the conviction,’ should an appellate court overturn the trial court’s
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judgment.” State v. Haller, 2012-Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter,
2011-Ohio-6524, ¶ 129.
Upkins’s Offenses
{¶9} Upkins was convicted of five counts of trafficking in drugs in violation
of R.C. 2925.03(A)(1) which provides, in relevant part, that “[n]o person shall
knowingly . . . [s]ell or offer to sell a controlled substance or a controlled substance
analog[.]” Counts One, Three, and Four involved cocaine, Count Two involved
methamphetamine, and Count Five involved buprenorphine (suboxone). Further,
the jury found that Counts Two and Five were committed in the vicinity of a school,
thereby elevating those offenses to a third-degree and fourth-degree felony,
respectively. See R.C. 2925.03(C)(1)(b). The Ohio Revised Code defines
“knowingly” as follows:
A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
R.C. 2901.22(B).
Trial Testimony
{¶10} At trial, the confidential informant testified to a series of controlled
drug buys from Upkins that took place in August and September of 2021. The
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confidential informant testified he approached law enforcement to inquire about
working as an informant because he “was in a bad spot [and] needed money.” (Feb.
27-28, 2024 Tr. at 102). According to the confidential informant, he received about
$70 for each controlled buy.
{¶11} The confidential informant stated that he purchased drugs from Upkins
on five separate occasions: August 30, 2021; September 16, 2021; twice on
September 17, 2021; and again on September 22, 2021. During those encounters,
the confidential informant recalled that he purchased methamphetamine, crack
cocaine, marijuana, and suboxone (buprenorphine) from Upkins.
{¶12} The confidential informant admitted that he has previously been
convicted of several felonies, but stated that he was being honest in his trial
testimony. The confidential informant specifically denied “setting up” Upkins.
{¶13} The law-enforcement officers involved in the controlled buys,
Sergeant Ethan Brown (“Sergeant Brown”) and Detective Mark Brunson
(“Detective Brunson”), testified regarding the series of controlled buys involving
Upkins and the confidential informant. The officers outlined the procedure involved
in the confidential buys including briefing the confidential informant, searching the
informant and his vehicle before the buys, outfitting the informant with a recording
device, observing the buys as closely as was practical under the circumstances,
debriefing with the confidential informant after the buys, searching the informant
and his vehicle a second time, and processing the suspected drugs as evidence.
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{¶14} The officers detailed each of the five buys. With respect to the first
buy on August 30, 2021, Detective Brunson testified that the buy took place at
Upkins’s residence at 2315 Collins Drive, Apartment K, in Sidney, Shelby County,
Ohio. The officers listened to the transmission of the recording device in real time
and heard the confidential informant make contact with Upkins at his apartment
door. Detective Brunson observed “minimal talking” with much of the audio
inaudible. (Feb. 27-28, 2024 Tr. at 141-142). After the buy, the confidential
informant handed over suspected crack cocaine. Subsequent forensic testing
identified the substance as containing cocaine. (See State’s Ex. No. 2).
{¶15} The second buy occurred at 1525 Kenwood Drive in Sidney, Shelby
County, Ohio. Detective Brunson stated that, at this location, he and Sergeant
Brown were able to be close enough to observe the transaction taking place.
Furthermore, the officers recorded a phone conversation between Upkins and the
confidential informant arranging for the buy. After the purchase, the confidential
informant turned over suspected methamphetamine and marijuana. Due to the small
quantity of the suspected marijuana, it was not sent to the lab for identification.
However, the forensic laboratory identified the other substance as
methamphetamine. (See State’s Ex. No. 3). The video recording made by Detective
Brunson during the second buy was played for the jury. Detective Brunson
identified Upkins and the confidential informant talking. The video depicts Upkins
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pulling something out of his pocket and handing it to the confidential informant.
Detective Brunson identified that exchange as the drug purchase.
{¶16} The third and fourth buys both occurred on September 17, 2021.
During the third buy, Upkins got into the confidential informant’s vehicle at 1525
Kenwood Drive Apartments and the informant drove Upkins to the Collins Drive
apartments. In the recording of the third buy, the confidential informant and Upkins
discussed drugs. After that buy, the confidential informant provided the officers
with a substance that subsequent laboratory testing confirmed to be cocaine. (See
State’s Ex. No. 4).
{¶17} After debriefing from the third buy, officers recorded a phone call
between the confidential informant and Upkins setting up the fourth buy. Detective
Brunson testified that the fourth buy took place later that same day at 2315 Collins
Drive, Apartment J. In the video recording of that transaction, a hand-to-hand
transaction can be seen; however, Upkins’s face is not visible in the recording. The
substance provided to officers from the confidential informant was subsequently
sent to the laboratory and confirmed to be cocaine. (See State’s Ex. No. 5).
{¶18} Detective Brunson testified that the fifth buy occurred on September
22, 2021. Although the audio recordings of the transaction were poor quality, the
video recording was played for the jury and depicts the confidential informant
entering the 1525 Kenwood Drive apartments. A short time later, the confidential
informant provided the officers with buprenorphine. (See State’s Ex. No. 6).
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{¶19} After the State rested, Upkins took the stand in his own defense.
{¶20} According to Upkins, he was familiar with the confidential informant
because Upkins is the property manager of the Collins Drive apartments, and the
confidential informant would sell tools in the parking lot. Upkins admits to buying
tools from the confidential informant in the summer of 2021, but he denied selling
the confidential informant drugs. Upkins claimed that the confidential informant
was “setting [him] up.” (Feb. 27-28, 2024 Tr. at 257).
Analysis
{¶21} Upkins contends that his convictions are against the manifest weight
of the evidence on the grounds that the testimony of the confidential informant and
the audio and video recordings of the buys were unreliable.
{¶22} With respect to his argument that the confidential informant’s
testimony is unreliable, Upkins asserts that the confidential informant “presented a
pattern of confusion, contradiction, and self-interest.” (Appellant’s Brief at 17).
Specifically, Upkins alleges that the confidential informant was unable to
distinguish the facts in the instant case with other controlled buys he conducted with
another target.
{¶23} In support of his allegations that the confidential informant struggled
to distinguish the facts in the instant case with other controlled buys he was involved
with, Upkins points to his counsel’s cross-examination of Detective Brunson. In
that cross-examination, Detective Brunson read from a transcript of a recent trial
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involving the confidential informant and another target. Upkins contends that the
testimony from that transcript3 supports a finding that the apartment number that the
confidential informant referenced in his testimony4 actually belonged to the target
in the other case.
{¶24} Upkins further challenges the confidential informant’s credibility on
the grounds that the confidential informant had numerous prior felony convictions
and that he gave inconsistent statements regarding his motive for participating in
the controlled buys. Specifically, the informant testified at the trial in the instant
case that he was compensated monetarily by the police for participating in the
controlled buys. However, he was confronted with testimony from a previous trial
involving an unrelated defendant in which the informant apparently testified that he
did not receive rewards for conducting controlled buys.
{¶25} “A verdict is not against the manifest weight of the evidence because
the finder of fact chose to believe the State’s [evidence] rather than the defendant’s
version of the events.” State v. Martinez, 2013-Ohio-3189, ¶ 16 (9th Dist.).
“‘Although we review credibility when considering the manifest weight of the
evidence, the credibility of witnesses is primarily a determination for the trier of
3 Portions of the transcript of the recent trial involving another target of controlled buys conducted by the confidential informant were read into the record in an attempt to impeach several witnesses. However, the transcript from the unidentified trial was not entered into the record. Accordingly, it is not part of the record on appeal. 4 The record indicates that the target of another series of drug buys involving the same confidential informant lived in another apartment in the same building as Upkins.
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fact.’” State v. Cox, 2022-Ohio-571, ¶ 20 (3d Dist.), quoting State v. Banks, 2011-
Ohio-5671, ¶ 13 (8th Dist.), citing DeHass, 10 Ohio St.2d at paragraph one of the
syllabus. “‘The trier of fact 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 proffered testimony.”’” State v. Brentley, 2023-Ohio-2530, ¶
33 (3d Dist.), quoting Banks at ¶ 13, quoting State v. Wilson, 113 Ohio St. 3d 382,
2007-Ohio-2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d
77, 80-81 (1984).
{¶26} Notably, the jury had the opportunity to observe the confidential
informant at trial. Furthermore, the jury was confronted with the purported minor
inconsistencies in the confidential informant’s testimony as well as his felony
convictions. Through cross examination, the alleged inconsistencies in the
testimony, such as inconsistencies in the apartment number, total number of
controlled buys executed by the confidential informant, and motive were brought to
the attention of the jury. Yet, based on our review of the record, it is clear that the
jury found the confidential informant to be credible. Furthermore, although Upkins
suggests that the confidential informant “set him up” in some way, the jury would
have also heard the testimony of Sergeant Brown and Detective Brunson outlining
the procedures they undertake in cases involving confidential informants, such as
searching the informants and their vehicles prior to and after controlled buys, fitting
the informant with recording equipment, and observing the buys as best they can.
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“[I]t is within the province of the jury to parse out the credible portions of the
witnesses’ testimonies[.]” State v. Waller, 2023-Ohio-493, ¶ 20 (3d Dist.). The
record sufficiently supports the jury’s credibility assessments, and we find no basis
to alter its analysis.
{¶27} Finally, Upkins challenges the weight of the evidence on the grounds
that the audio and video recordings of the controlled buys were not always clear.
Indeed, some portions of the audio and video recordings were difficult to see and
hear. However, there were portions of the audio and video recordings that
corroborated the testimony of the confidential informant and the law enforcement
testimony. Most notably, in the second controlled buy, the detectives were able to
observe the transaction take place, and at trial, were able to denote where in the
video recording the transaction took place.
{¶28} Upkins’s second assignment of error is overruled.
First Assignment of Error
Prosecutorial misconduct denied Mr. Upkins a fair trial and due process of law. U.S. Const., Amends. V, VI, and XIV; Ohio Const., art. I, § 10 and 16.
{¶29} In his first assignment of error, Upkins argues that he was denied a fair
trial and due process of law as a result of alleged prosecutorial misconduct.
Specifically, Upkins contends that the trial court committed plain error by allowing
allegedly improper statements during the State’s opening statement and closing
argument.
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Applicable Law
{¶30} The test regarding prosecutorial misconduct in opening statements or
closing arguments is whether the conduct or remarks were improper and, if so,
whether they prejudicially affected substantial rights of the defendant. State v.
Smith, 14 Ohio St.3d 13, 14 (1984) (involving closing argument); State v. Nicholson,
2024-Ohio-604, ¶ 266, 281-282 (involving opening statement). “[I]t is not enough
that there be sufficient other evidence to sustain a conviction in order to excuse the
prosecution’s improper remarks.” Smith at 15. “Instead, it must be clear beyond a
reasonable doubt that, absent the prosecutor’s comments, the jury would have found
[the] defendant guilty.” Id.; State v. Knuff, 2024-Ohio-902, ¶ 238 (a conviction may
be upheld in the face of a prosecutor’s improper remarks when it is clear beyond a
reasonable doubt that the jury would have returned a guilty verdict regardless of the
comment); In re J.G., 2025-Ohio-1933, ¶ 48 (8th Dist.) (acknowledging that “the
test for plain error and prosecutorial misconduct are essentially the same”). “‘[T]he
focus of an inquiry into allegations of prosecutorial misconduct is upon the fairness
of the trial, not upon culpability of the prosecutor.’” State v. McKelton, 2015-Ohio-
4228, ¶ 13 (12th Dist.), quoting State v. Gray, 2012-Ohio-4769, ¶ 56 (12th Dist.).
{¶31} When there is no objection at trial to the alleged prosecutorial
misconduct, we review the issue for plain error. Nicholson at ¶ 281 (opening
statements); State v. Ballew, 76 Ohio St.3d 244, 254-255 (1996) (closing
arguments); Crim.R. 52(B). See State v. White, 82 Ohio St.3d 16, 22 (1998) (“Since
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defense counsel failed to object to the alleged instances of prosecutorial misconduct,
the alleged improprieties are waived, absent plain error.”). “To qualify for plain-
error relief, the appellant must establish: (1) occurrence of an error, i.e., a deviation
from a legal rule; (2) the error was plain, i.e., it was an obvious defect in the trial
proceedings; and (3) the error affected the appellant’s substantial rights, meaning
the error ‘must have affected the outcome of the trial.’” State v. Cass, 2024-Ohio-
2614, ¶ 57 (3d Dist.), quoting State v. Morgan, 2017-Ohio-7565, ¶ 35. In other
words, “a reversal for prosecutorial misconduct will not occur unless it is clear that
the outcome of the trial would have been different but for the misconduct.” State v.
Boles, 2010-Ohio-5503, ¶ 50 (6th Dist.), citing State v. Smith, 14 Ohio St.3d 13, 15
(1984). Additionally, the decision to correct a plain error is discretionary and should
be made with the utmost caution, under exceptional circumstances, and only to
prevent a manifest miscarriage of justice. State v. Noling, 98 Ohio St.3d 44, 2002-
Ohio-7044, ¶ 62.
{¶32} “Opening statements serve to inform the jury about that nature of the
case and to outline the facts that each party intends to prove.” (Emphasis deleted.)
Nicholson at ¶ 282. “And unless it appears that counsel ‘deliberately attempt[ed] to
influence and sway the jury by a recital of matters foreign to the case,’ remarks
made during opening statements cannot form the basis of a misconduct claim.” Id.,
quoting Maggio v. Cleveland, 151 Ohio St. 136 (1949), paragraph two of the
syllabus.
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{¶33} In closing statements, “[t]he prosecution is normally entitled to a
certain degree of latitude.” Smith, 14 Ohio St.3d at 13-14 (identifying types of
remarks to be avoided). A prosecutor may comment upon the evidence and suggest
the conclusion to be drawn from it. State v. Stevens, 2016-Ohio-446, ¶ 71 (3d Dist.).
However, “[a] closing argument that goes beyond the record may constitute
prejudicial error,” “particularly where the remarks call for the jury to convict to meet
a public demand.” State v. Moritz, 63 Ohio St.2d 150, 157 (1980). “‘A prosecutor’s
isolated comments are not to be taken out of context and given their most damaging
meaning.’” State v. Rasawehr, 2020-Ohio-429, ¶ 13 (3d Dist.), quoting State v.
Encarnacion, 2017-Ohio-5530, ¶ 10 (10th Dist.). “‘Instead, an appellate court must
review a closing argument in its entirety to determine whether prejudicial error
occurred.’” Id., quoting Encarnacion at ¶ 10.
{¶34} “‘Important considerations are whether the misconduct was an
isolated incident or a protracted series of improper arguments, whether the
defendant objected, whether curative instructions were given, and whether the
evidence of guilt was overwhelming.’” State v. Norales-Martinez, 2018-Ohio-
4356, ¶ 32 (6th Dist.), quoting State v. Oviedo, 6th Dist. Lucas No. L-95-287, 1997
Ohio App. LEXIS 3607, *4 (Aug. 15, 1997), citing State v. Keenan, 66 Ohio St.3d
402, 410 (1993).
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{¶35} Upkins contends that he was denied a fair trial because the prosecutor,
during opening and closing arguments made several improper statements. He
argues that the alleged statements deprived him of his right to a fair trial and violated
his right to due process.
The State began its opening statement with the following:
Bet you I can tell you something you didn’t know when you walked in here today. You’re a victim, you’re a victim, you’re a victim, he’s a victim, so am I. You know why? Because that man brought and trafficked drugs in our community.
Drug trafficking is not a victimless crime. It’s one that can impact not only an individual but an entire community. And it’s your job to determine the guilt or innocence of the Defendant, and I submit to you that this case is actually pretty simple when you get down to it.
(Feb. 27-28, 2024 Tr. at 84).
{¶36} From there, the prosecutor reviewed the elements of the offenses and
outlined for the jury the evidence it expected to present relating to each of the
elements. Then, the prosecutor made the following comment:
[Defense counsel] is a skilled attorney. She’s – this is not her first rodeo, or mine; and she’s gonna try – her job is gonna be to throw red herrings at you is what she’s gonna try to do. Okay? But don’t lose sight of – of the facts. Don’t lose sight of what you see, what you hear, and what’s presented to you.
Cause what is evidence is testimony of the witnesses, the lab reports showing that these substances are cocaine, methamphetamine, and buprenorphine, and the audio and video recordings you’re gonna see.
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Don’t lose sight of the fact that the Defendant has made us all, our community, made us all victims in this case. And that’s why I implore you to protect our community and to find the Defendant guilty. Thank you.
(Feb. 27-28, 2024 Tr. at 87-88).
{¶37} During his closing statement, the prosecutor reviewed the evidence
introduced at trial in relation to each of the statutory elements. Then, the prosecutor
attacked the plausibility and credibility of Upkins’s testimony and his version of
events. At the conclusion of his closing statement, the prosecutor remarked as
follows:
He’s trafficked drugs before, and he’s done it again, and he’s done it in our community, and it’s my job to prosecute that. And I would suggest to you, it’s your job to look at each of those elements that we just talked about. Use your common sense and find this man guilty as charged. Thank you.
(Feb. 27-28, 2024 Tr. at 268).
{¶38} Specifically, Upkins challenges the prosecutor’s statements referring
to members of the jury as “victims” of Upkins’ criminal activity. Upkins also
contests the prosecutor’s statements references to his attorney as a “skilled attorney”
who is going to “try to throw red herrings” at the jury. Upkins argues that the
prosecutor’s statements could be taken to imply that his defense counsel’s job was
to mislead the jury and that she was experienced and skilled at doing so.
{¶39} Upkins also takes issue with the prosecutor’s statements that Upkins
has “trafficked drugs before” and has “done it again.” Upkins claims that the
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prosecutor’s statement references an improper propensity argument. Accordingly,
Upkins reasons that the statements constituted prosecutorial misconduct and, as a
result, he was deprived of his due-process rights and his right to a fair trial.
{¶40} As Upkins concedes, the defense did not object to the opening or
closing statement at trial. Thus, we review the issue only for plain error.
{¶41} Although the statements of the prosecutor are troubling, we need not
embark upon an analysis of their impropriety. After reviewing the several
statements in the context of the trial, we find that Upkins has not established that he
qualifies for plain-error relief. Here, even assuming that the prosecutor’s comments
were inappropriate, Upkins has not shown that a reasonable probability exists that,
but for those comments, the trial result would have been different. See State v.
Caudill, 2025-Ohio-787, ¶ 44 (3d Dist.); Stevens, 2016-Ohio-446, at ¶ 75; Knuff,
2024-Ohio-902, at ¶ 238, 250. The audio and video recordings relating to the
controlled buys, the officers’ testimony, and the confidential informant’s testimony
provided more than ample evidence in support of the jury’s verdicts. Thus, even if
we assume there was error in allowing the prosecutor’s statements, we find beyond
a reasonable doubt that, absent the prosecutor’s comments, the jury would still have
found Upkins guilty. See Caudill at ¶ 44; State v. Yelton, 2025-Ohio-2391, ¶ 48 (3d
Dist.).
{¶42} Upkins’s first assignment of error is overruled.
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Third Assignment of Error
Mr. Upkins received ineffective assistance of counsel when trial counsel failed to object to the prosecutor’s misconduct. U.S. Const., Amends. VI and XIV; Ohio Const., Art I, § 1 and 10; Strickland v. Washington, 466 U.S. 668 (1984).
{¶43} In his third assignment of error, Upkins argues that his trial counsel
was ineffective for failing to object to alleged prosecutorial misconduct. Upkins
contends that had his counsel objected to the statements referenced in his first
assignment of error, “it is probable that the court would have given limiting
instructions asking the jury to disregard the comments.” (Appellant’s Brief at 21).
Upkins contends that “because the jury was allowed to consider an array of improper
comments when reaching its verdict” he was prejudiced.
{¶44} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State
v. Evick, 2020-Ohio-3072, ¶ 45 (12th Dist.). A defendant asserting a claim of
ineffective assistance of counsel must establish: (1) counsel’s performance was
deficient or unreasonable under the circumstances; and (2) the deficient
performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001),
citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order
to show counsel’s conduct was deficient or unreasonable, the defendant must
overcome the presumption that counsel provided competent representation and must
show that counsel’s actions were not trial strategies prompted by reasonable
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professional judgment. Strickland at 689. Counsel is entitled to a strong
presumption that all decisions fall within the wide range of reasonable professional
assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic
decisions, even if unsuccessful, do not generally constitute ineffective assistance of
counsel. State v. Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the errors
complained of must amount to a substantial violation of counsel’s essential duties
to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).
{¶45} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
{¶46} Upkins argues that his trial counsel was ineffective for failing to object
to certain statements during the opening statement and closing argument.
Specifically, he argued that the remarks constituted prosecutorial misconduct.
However, we find that that Upkins has not demonstrated that he was denied the right
to effective counsel.
{¶47} “The failure to make either the deficiency or prejudice showing
defeats a claim of ineffective assistance of counsel.” State v. Artis 2019-Ohio-2070,
¶ 33 (3d Dist.), citing State v. Frye, 2015-Ohio-3012, ¶ 11 (10th Dist.), citing
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Strickland, 466 U.S. 668, at 697. “Thus, ‘a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed.’” Id., quoting Strickland at 697.
{¶48} Although Upkins identifies several problematic remarks by the
prosecutor, he fails to demonstrate how he was prejudiced by his counsel’s failure
to object other than to claim that without an objection, the trial court did not
recognize the need to issue a limiting instruction to the jury. Notably, Upkins fails
to argue how, but for his trial counsel’s alleged error, the outcome of his trial would
have been different. Furthermore, in our discussion of Upkins’s first assignment of
error, we found that, in light of the strength of the State’s case, Upkins failed to
demonstrate that without the prosecutor’s inappropriate statements, the outcome of
the trial would have been different. Furthermore, although the trial court did not
give a limiting instruction in direct response to the prosecutor’s statements, the trial
court did inform the jury that statements made in opening statements and closing
arguments are not evidence. Furthermore, the decision of Upkins’s trial counsel not
to object to statements relating to Upkins’s prior conviction for drug trafficking
could have been a strategic decision to avoid drawing attention to the statement. See
State v. Stinebaugh, 2024-Ohio-2677, ¶ 65 (3d Dist.) (“[T]he decision not to object
falls within the realm of trial strategy and does not generally constitute deficient
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performance.” Thus, we do not find that Upkins has established that he was
prejudiced by his counsel’s decision not to object to the prosecutor’s statements.
{¶49} Upkins’s third assignment of error is overruled.
Conclusion
{¶50} For the foregoing reasons, Upkins’s assignments of error are
overruled. Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Shelby County Court
of Common Pleas.
WILLAMOWSKI, and WALDICK, J. J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
Mark C. Miller, Judge
John R. Willamowski, Judge
Juergen A. Waldick, Judge
DATED: /jlm
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