[Cite as State v. Lawless, 2018-Ohio-444.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                         C.A. No.       16AP0025

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RICHARD LAWLESS                                       COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   2015 CRC-I 000206

                                  DECISION AND JOURNAL ENTRY

Dated: February 5, 2018



        CALLAHAN, Judge.

        {¶1}     Richard Lawless appeals from his convictions in the Wayne County Common

Pleas Court. This Court affirms.

                                                 I.

        {¶2}     The two victims in this case, S.D. and R.K., are recovering heroin addicts. At the

time of the events giving rise to Mr. Lawless’s convictions, S.D. and R.K. were both active users

of heroin and Mr. Lawless was their supplier. Around that same time, Gary Hubbard, Jr.,

Director of the Medina County Drug Task Force, was the head of an organized crime

investigation that was investigating Mr. Lawless’s drug dealing activities in Ashland, Medina,

and Wayne Counties. Pursuant to that investigation, search warrants were executed at multiple

properties. Mr. Lawless suspected that S.D. and R.K. had “snitched” on him.

        {¶3}     Mr. Lawless’s co-defendant, Michael Kouns, and S.D. lived at one of the

properties that was searched. A couple of days after the searches, Mr. Kouns asked S.D. to go
                                                  2


with him to a vacant unit in the building to talk “about everything that was going on.” Mr.

Lawless was waiting in that unit and threatened S.D with a gun. Mr. Kouns then used S.D.’s

phone to text R.K., asking him to come over. When R.K. arrived, Mr. Lawless punched him and

had Mr. Kouns bind him with duct tape. Mr. Lawless threatened R.K. with the gun and struck

him multiple times with a bat.

          {¶4}   After Mr. Lawless ended his interrogation of S.D. and R.K., he threatened that he

would kill them if they reported the incident to police. Initially, neither S.D. nor R.K. went to

the police. But, about ten days after the incident, they did report it to law enforcement.

          {¶5}   Mr. Lawless was indicted for two counts of kidnapping, one count of felonious

assault, and two counts of abduction. Mr. Lawless pleaded not guilty and the matter proceeded

to a jury trial. The jury found him guilty on all counts. The trial court merged the abduction

counts into the kidnapping counts and sentenced Mr. Lawless to total of seventeen years in

prison.

          {¶6}   Mr. Lawless appeals, raising three assignments of error.

                                                  II.

                                 ASSIGNMENT OF ERROR NO. 1

          THE TRIAL COURT ERRED IN UNDULY RESTRICTING THE
          APPELLANT’S CROSS-EXAMINATION OF A KEY PROSECUTION
          WITNESS, THEREBY DENYING HIS RIGHT OF CONFRONTATION.

          {¶7}   In his first assignment of error, Mr. Lawless argues that the trial court improperly

limited his cross-examination of Mr. Kouns concerning a pending case in Ashland County.1 This

Court disagrees.


1
  In his appellate brief, Mr. Lawless states that the questioning concerned an indictment in
Medina County. The trial transcript, however, shows that this questioning concerned an
indictment in Ashland County.
                                                 3


       {¶8}    While a criminal defendant has the right to cross-examine witnesses, the trial

court has discretion regarding the scope of cross-examination. State v. Price, 9th Dist. Summit

No. 28291, 2017-Ohio-4167, ¶ 5. Thus, “[t]his Court reviews a trial court’s decision to limit the

scope of cross-examination for an abuse of discretion.” Id. A trial court abuses its discretion

when it acts in a manner that is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶9}    “[O]rdinarily the credibility of a witness may be attacked by proof of conviction

of [a] crime, but not by proof of indictment.” State v. Hector, 19 Ohio St.2d 167, 178 (1969).

There is an exception, however, if the fact of the indictment “would reasonably tend to show that

[the witness’s] testimony might be influenced by interest, bias, or a motive to testify falsely.” Id.

The exception applies when “criminal charges are then pending in the same court against [the]

witness” because the witness “may be influenced by the expectation or hope that, by aiding in

the conviction of the defendant, he might be granted immunity or rewarded by leniency in the

disposition of his own case.” (Emphasis added.) Id. at 178-179.

       {¶10} In the present case, Mr. Kouns was initially charged with the same five counts as

Mr. Lawless. Mr. Kouns pleaded guilty to felonious assault and the four other charges were

dismissed. He received a two-year sentence, which he was serving at the time of the trial. On

cross-examination, he admitted that he thought he might get a thirty-year sentence if he was

convicted of all five charges.

       {¶11} Mr. Kouns was also indicted and pleaded guilty in an Ashland County case, but

he had not been sentenced in that case at the time of the trial in the present case. During his

direct-examination, the prosecutor showed Mr. Kouns an exhibit which he identified as his

indictment in Ashland County. The prosecutor then inquired, “so, you’ve been indicted out of
                                                4


Ashland County for a case involving activity in which you participated in with Richard

Lawless?” Mr. Kouns responded, “I’d rather not say, because of the pending case.” Later, the

prosecutor inquired if Mr. Kouns had been offered a plea deal or any assistance in his Ashland

County case in consideration of his testimony in the Wayne County case. Mr. Kouns answered

that he had not.

       {¶12} On cross-examination, defense counsel asked Mr. Kouns if he had pleaded guilty

in Ashland County. Mr. Kouns responded, “[a]t this point in time, yes.” Defense counsel

attempted to inquire further into the details of the Ashland County case.          The trial court

disallowed it noting, “he hasn’t been convicted yet [and] he could withdraw his plea.” Defense

counsel proffered, “the purpose of these questions is to produce testimony from this witness that

he was indicted on twenty[-]one counts of various drug offenses in Ashland County and he has

plead[ed] guilty to five of those counts and no matter which way you slice it, that’s some kind of

a deal, he got five from twenty[-]one.” The prosecutor did not object to having the exhibit,

which had a copy of Mr. Kouns’s plea attached, submitted to the jury.

       {¶13} In his brief on appeal, Mr. Lawless speculates that the fact that Mr. Kouns had not

yet been sentenced in Ashland County was “not a mere coincidence.” He continues, “[t]he

sentence was ‘incentive’ for [Mr.] Kouns to testify for the [S]tate.” It is possible that Mr. Kouns

agreed to testify for the State against Mr. Lawless in an Ashland County case. In the present

case, however, he testified on direct that he had not been offered a plea deal or assistance with

his Ashland County case in consideration of his testimony in Wayne County. This Court cannot

say that the trial court abused its discretion in disallowing any further questioning about the

Ashland County case.

       {¶14} Mr. Lawless’s first assignment of error is overruled.
                                                  5


                                   ASSIGNMENT OF ERROR NO. 2

       THE FAILURE OF DEFENSE COUNSEL TO OBJECT TO FAIRLY
       PREJUDICIAL EVIDENCE AND REQUEST APPROPRIATE JURY
       INSTRUCTIONS DENIED THE APPELLANT HIS RIGHT TO EFFECTIVE
       ASSISTANCE OF COUNSEL.

       {¶15} In his second assignment of error, Mr. Lawless contends that his trial counsel was

ineffective because he failed to object to several items and failed to request a limiting instruction

concerning certain testimony. This Court disagrees.

       {¶16} To succeed on an ineffective assistance of counsel claim, the defendant must

show both that counsel’s performance was deficient and that the deficiency prejudiced him.

Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficiency exists only if counsel’s

performance fell below an objective standard of reasonable representation. See State v. Bradley,

42 Ohio St.3d 136 (1989), paragraph two of the syllabus. To demonstrate prejudice, “the

defendant must prove that there exists a reasonable probability that, were it not for counsel’s

errors, the result of the trial would have been different.” Id. at paragraph three of syllabus. An

appellate court need not analyze both prongs of the Strickland test if it finds that the defendant

failed to prove either prong. State v. Ray, 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10.

       {¶17} Concerning the deficiency prong, the defendant bears the burden to overcome the

strong presumption that counsel’s performance was adequate or that counsel’s actions were

sound trial strategy. State v. Edwards, 9th Dist. Summit No. 24546, 2009-Ohio-3558, ¶ 6. “[A]s

a matter of law, the failure to object to an error at trial may be justified as a trial tactic and thus

does not sustain a claim of ineffective assistance of counsel.” State v. Miller, 9th Dist. Summit

No. 23240, 2007-Ohio-370, ¶ 10. Counsel might make this tactical decision, for instance, if

“objecting would only serve to highlight negative testimony or run counter to defense counsel’s

theory of the case.” State v. Bradford, 9th Dist. Summit No. 22441, 2005-Ohio-5804, ¶ 27.
                                                 6


       {¶18} On appeal, Mr. Lawless contends that his trial counsel should have objected to the

prosecutor’s reference in her opening statement to an “ongoing epidemic in our community”

involving heroin. “During opening statement, counsel is accorded latitude and allowed fair

comment on the facts to be presented at trial.” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-

6235, ¶ 157. Reviewing the State’s entire opening statement, the comment appears to have been

directed at explaining the context and the players in the case. For instance, the prosecutor

explained how S.D., R.K., and Mr. Kouns each became addicted to heroin.

       {¶19} Defense counsel similarly portrayed these witnesses as heroin addicts in his

opening statement. After noting that they were addicts, defense counsel went so far as to refer to

them as “junkies.” Objecting to the prosecutor’s remark, therefore, would have “run counter to

defense counsel’s theory of the case.” See Bradford at ¶ 27. In addition, both at the beginning

and at the conclusion of the trial, the court instructed the jury that counsel’s statements were not

evidence. This Court “presume[s] that the jury followed the court’s instructions.” See Leonard

at ¶ 157.

       {¶20} Mr. Lawless next contends that his trial counsel should have objected to two

comments made by S.D. during her testimony. After S.D. testified that she was afraid that Mr.

Lawless was going to shoot her, she was asked whether she believed that he was capable of

doing so. She responded that she believed he was “[b]ecause that’s the type of person he is.” At

another point, S.D. stated that Mr. Lawless asked her what they should do with his girlfriend,

who she characterized as “another victim like I was.” On appeal, Mr. Lawless argues that these

statements were “prejudicially irrelevant” under Evid.R. 403. Each of these comments was

isolated, and S.D. was not asked to expound on either of them. Therefore, trial counsel may have
                                                 7


made the strategic decision not to object because doing so would “only serve to highlight

negative testimony.” See Bradford at ¶ 27.

        {¶21} Mr. Lawless further contends that his trial counsel should have objected when Mr.

Kouns was asked whether he had been indicted in Ashland County “for a case involving activity

in which [he] participated with Richard Lawless[.]” Here again, trial counsel may have made the

strategic decision not to object because objecting would draw attention to the fact that Mr.

Lawless was alleged to be involved in criminal activity in Ashland County. In addition, Mr.

Lawless acknowledges that trial counsel’s strategy may have been to discredit Mr. Kouns by

bringing out a possible incentive for Mr. Kouns to testify favorably for the State. But, he argues,

if this was so, trial counsel should have requested a limiting instruction. As with the decision not

to object, the decision not to request a limiting instruction is a matter of trial strategy. Bradford

at ¶ 28 (decision not to request limiting instruction does not amount to ineffective assistance of

counsel).

        {¶22} Finally, Mr. Lawless contends that his trial counsel should have objected to

testimony from Medina County Drug Task Force Agent J. Tadd Davis. Agent Davis testified,

“[b]ased on [his] experience with dealing with victims, it is not unusual for victims to delay

reporting” a crime.     According to Mr. Lawless, Agent Davis “in effect, provided expert

testimony.” Earlier, Agent Davis had testified that he had over twenty-six years of experience as

a law enforcement officer, and defense counsel stipulated to his qualifications. Trial counsel

may have strategically agreed to the stipulation in order not to have Agent Davis expound upon

his qualifications.
                                                 8


       {¶23} This Court will not second-guess counsel’s strategic trial decisions merely

because that strategy ultimately was unsuccessful. See, e.g., Miller, 2007-Ohio-370, at ¶ 10;

Edwards, 2009-Ohio-3558, at ¶ 9. Mr. Lawless’s second assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 3

       THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE.

       {¶24} In his third assignment of error, Mr. Lawless argues that his convictions were

against the manifest weight of the evidence because the State’s primary witnesses were “not

sufficiently credible,” their testimony was inconsistent, and there was a lack of physical

evidence. This Court disagrees.

       {¶25} A manifest weight challenge addresses whether the greater amount of credible

evidence supports one side over the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

When reviewing a manifest weight challenge,

       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 factfinder’s resolution of the

conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982).

       {¶26} An appellate court “must always be mindful of the presumption in favor of the

finder of fact.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21. The weight of

the evidence and the credibility of the witnesses remain primarily issues for the trier of fact.

State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The trier of fact
                                                 9


observed the witnesses’ demeanor, gestures, and voice inflections and was able to use those

observations in weighing the credibility of their testimony. Truax v. Regal, 9th Dist. Summit No.

20902, 2002-Ohio-4867, ¶ 26. “The discretionary power to grant a new trial should be exercised

only in exceptional cases where the evidence weighs heavily against the conviction.” Otten at

340.

       {¶27} Mr. Lawless argues that S.D., R.K., and Mr. Kouns were not credible because

they were “admittedly addicted to heroin,” R.K. and Mr. Kouns were alleged to have been

dealing heroin, and “[a]ll three were facing charges.”

       {¶28} Initially, this Court notes that there is no evidence in the record that S.D. was

“facing charges.” She was asked if she had been indicted for any case in Wayne, Ashland, or

Medina County. She responded, “No.” She was, however, unsure if she had received a deal for

her cooperation. Director Hubbard testified that a plea deal was not made with S.D. S.D.

testified that she had been addicted to heroin previously, but that she had not used any in the past

nine months.

       {¶29} R.K. testified that he had been addicted to heroin, but had not used any for about

seven months. R.K. testified that he also sold heroin. R.K. further testified that he had been

indicted for drug offenses in Ashland County. On cross-examination, he admitted that he

received a plea deal in Ashland County, but stated that one case had “no bearing” on the other.

Director Hubbard indicated that while R.K. may have received a deal, he was not involved with

it.

       {¶30} Mr. Kouns testified that he was a heroin addict at the time of the incident. When

he was asked if he was also selling drugs, he stated that he was not going to answer because he

had been indicted in Ashland County. Although Mr. Lawless argues that Mr. Kouns’s “degree of
                                               10


freedom” could have been “greatly altered if he testified unfavorably for the [S]tate,” the record

reflects that Mr. Kouns had already been sentenced for his involvement in this case prior to Mr.

Lawless’s trial. In addition, he testified that he had not been offered a plea deal in his Ashland

County case in consideration of his testimony in this Wayne County case.

       {¶31} Mr. Lawless further questions the interactions and relationships of the witnesses.

For instance, S.D. wrote letters to Mr. Kouns while he was in jail. R.K. indicated that, prior to

this incident, he did not have much of a “beef” with Mr. Kouns, but he admitted that there was

some animosity between him and Mr. Lawless.

       {¶32} Mr. Lawless also points out some inconsistencies in the witnesses’ testimony.

While S.D., R.K., and Mr. Kouns each indicated that Mr. Lawless had hit R.K. multiple times

with a bat, there were discrepancies as to whether he “swung” or “jabbed” the bat. S.D. initially

reported that the incident happened on June 1, 2015, but later stated that it occurred on May 29,

2015. She explained, “I may have not exactly known the date when the incident happened

because of my emotions and being upset.” She testified, however, that she was able to determine

the date by looking at some pictures on her phone of Mr. Lawless with his dog. The display on

the phone indicated that the pictures were “[c]reated [on] May 29, 2015” and “[m]odified [on]

Jun[e] 5, 2015.” According to S.D., she took the pictures on the day of the incident at the

building where it occurred, but they may have been modified by a Google app.

       {¶33} Mr. Lawless notes that R.K. testified that there were no pictures taken when he

was at the building. In addition, R.K. testified on direct that Mr. Lawless instructed him to take

his dog to a friend’s house and he drove straight there. On cross-examination, he conceded that

he previously told law enforcement that he got the dog from a farm and then took it to the

friend’s house.
                                                11


       {¶34}    Mr. Lawless further contends that “corroborating physical evidence was not

obtained” to substantiate the witnesses’ testimony. Lack of corroborating evidence, by itself,

does not undermine a witness’s credibility. State v. Schell, 9th Dist. Summit No. 28255, 2017-

Ohio-2641, ¶ 32. Moreover, while some physical evidence was not recovered, other physical

evidence was found. For instance, the weapons were not found, but ammunition for the caliber

of the gun that the State’s witnesses alleged Mr. Lawless had at the time of the incident was

found in a search of the building.

       {¶35} Similarly, with respect to the duct tape, while no residue was found on R.K.’s

jeans, a roll of duct tape was found in the search of the building. Agent Davis explained that

R.K. had washed his jeans, therefore, they were not submitted for further testing. Director

Hubbard testified that a roll of duct tape was found on top of a refrigerator during a search of the

building.

       {¶36} The defense offered an alternative explanation for the presence of the duct tape in

the building. A former girlfriend of Mr. Lawless testified that she was in the process of moving

into an apartment at the property when the search occurred. She further testified that the duct

tape that was found in the search was hers. However, when she was shown a picture of the

kitchen where the duct tape was found, she stated, “that’s not the side I was moving into.” Later,

when shown a picture of the same kitchen from an angle including the refrigerator with the roll

of duct tape on top, she stated that it was “[t]he same side [she] was moving into.”

       {¶37} Mr. Lawless asserts that, despite the testimony that Mr. Kouns offered to set off

fireworks to muffle any gunshots, “no fireworks were found.” This assertion is belied by the

record. Director Hubbard testified that they found a plastic tote containing fireworks during the
                                                12


search of the building. He further testified that mail or pay stubs belonging to Mr. Kouns was

located in the container with the fireworks.

       {¶38} Finally, Mr. Lawless challenges whether R.K. was injured. R.K. testified that he

was bruised on his sternum and back and his cheek was swollen. Similarly, S.D. testified that

R.K. had a “huge welt” on his face. Pictures of R.K.’s faded injuries were also shown to the

jury. By contrast, Mr. Lawless’s ex-wife testified that she saw R.K. and S.D. on May 31, 2015,

and had a conversation with them. She did not observe any bruises, red marks, or swelling on

R.K.’s face and he did not appear to be in any discomfort.

       {¶39} “In reaching its verdict, the jury was in the best position to evaluate the credibility

of the witnesses and was entitled to believe all, part, or none of the testimony of each witness.”

State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29. This Court cannot

say that this is the exceptional case where the jury clearly lost its way in convicting Mr. Lawless.

See Otten, 33 Ohio App.3d at 340.

       {¶40} Mr. Lawless’s third assignment of error is overruled.

                                                III.

       {¶41} Mr. Lawless’s assignments of error are overruled. The judgment of the Wayne

County Common Pleas Court 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 Wayne, 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.
                                                13


       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.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

DAVID L. DOUGHTEN, Attorney at Law, for Appellant.

DAVID R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
