[Cite as State v. Banks, 2012-Ohio-2495.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97084




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                            JUAN BANKS
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-546456

        BEFORE: Rocco, J., Stewart, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: June 7, 2012

                                                -i-
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113-1901

APPELLANT

Juan Banks
Inmate No. 603-214
Toledo Correctional Institution
P.O. Box 80033
Toledo, Ohio 43608

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Scott Zarzycki
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Juan Banks appeals from his conviction after a jury

found him guilty of murder with firearm specifications.

       {¶2} Banks presents seven assignments of error. He claims the trial court allowed

the prosecutor to introduce improper evidence, including hearsay testimony.         Banks

further claims the prosecutor engaged in misconduct during closing argument.

Additionally, Banks asserts his trial counsel provided ineffective assistance by failing to

object to the foregoing improprieties. Banks also asserts his conviction is not supported

by either sufficient evidence or by the manifest weight of the evidence. Finally, Banks

claims that cumulative error contributed to his conviction.

       {¶3} This court has reviewed the record in light of Banks’s arguments, but finds

none has merit.     Consequently, Banks’s assignments of error are overruled and his

conviction is affirmed.

       {¶4} Banks’s conviction results from a shooting incident that occurred in the early

morning of December 11, 2010. The state’s witnesses provided the following account of

the incident.

       {¶5}     Robert Filler awoke from sleep at about 3:15 a.m. in his second-floor

bedroom to hear an argument going on outside next to his house, which was located at the

corner of W. 44th Street and Hyde Avenue in Cleveland. Filler’s bedroom window faced
Hyde Avenue. Although the argument seemed to be intensifying, Filler thought that the

people involved would soon resolve it because of the cold and snow on the ground, so he

tried to return to sleep.

       {¶6} However, at approximately 3:30 a.m., Filler heard the sound of a small caliber

gun. He got out of bed and looked out his window to see three males. One was “laying

on the ground,” face up with his head toward the street; another stood over him,

“hollering, Come on, Pookie. Let’s go. Get up. Let’s go.”

       {¶7} The third man, whom the state alleged was Banks, “was headed east on Hyde”

as he walked quickly away from the curb lawn. When Banks reached Filler’s driveway,

he went onto W. 44th Street and cut into an alley; Filler lost sight of him.

       {¶8} Meanwhile, the second male who was later identified as 14-year-old K.J.,

pulled at the prone man’s legs, dragging him a short way closer to the sidewalk. Filler

was on the telephone calling 911.

       {¶9} K.J. left the fallen man to run to the nearby house of Daisy Rodriguez. Only

a few minutes previously, K.J. had been pounding on Rodriguez’s door asking for LaSalle

Hawthorne, who had left the house in K.J.’s company. Now, K.J. was pounding on the

door shouting that Hawthorne, whose nickname was “Pookie,” had been shot. Rodiguez

and Hawthorne’s other friend, Eric Jackson, ran outside to Hawthorne. The police also

arrived, followed by an EMS unit.

       {¶10} After ascertaining the victim’s name, the responders saw that he had

sustained a gunshot wound to his abdomen. The EMS technicians transported him to the
nearest hospital emergency room.       Efforts to treat Hawthorne were unsuccessful,

however; he died of the gunshot wound.

      {¶11} Police officers Edward Lentz and James Skernivitz secured the scene, at

which they saw several items laying on the snow, including a pair of gloves and two cell

phones. They also detained K.J. and summoned Second District Det. Elliott Landreau.

K.J. told Lentz that he and Hawthorne had come from Rodriguez’s house on their way to

the corner store, met a bearded man who first engaged Hawthorne in conversation, then

shot him and fled.

      {¶12} While Landreau was en route, Lentz continued to obtain the names of other

potential witnesses. He noticed Banks walking up to the crime scene from an easterly

direction because Banks seemed to be looking as if “he had some interest in what was

going on.”    When Lentz questioned Banks, however, Banks indicated he had no

knowledge of the people or the incident; Lentz soon released him.

      {¶13} When Landreau arrived, after perusing the scene, he took K.J. to the station

for a more extensive recorded interview. K.J. gave an account of the shooting that

differed somewhat from the account he provided to Lentz, but provided the same

description of the assailant, indicating that the shooter wore red pajama pants, a dark

“hoodie,” and a black “skully.” K.J. seemed very concerned to obtain the blue cell phone

found at the scene; he indicated it belonged to his girlfriend and he needed to return it.

The phone, however, was sent for forensic analysis.
       {¶14} Homicide Det. Michael Smith eventually was assigned to investigate the

case. Rodriguez and Jackson, who were close friends with Hawthorne, provided Smith

with similar accounts of the victim’s activities on the night of the murder. As Rodriguez

and Jackson described it, Hawthorne had arrived at Rodriguez’s home with Eric Jackson

at approximately 3:00 a.m., Hawthorne indicated that he had been receiving telephone

calls from K.J., K.J. came to the house looking for Hawthorne and the two of them left

together, and the gunshot occurred within minutes of their departure. Rodriguez thought

it “weird” that K.J. wanted Hawthorne to go somewhere with him because the two did not

associate with each other, while Jackson indicated he did not even know K.J.

       {¶15} A few days after the murder, Khoury Scales brought his “best friend” Banks

to the home of Scales’s older sister, Thomasina Clark. Without preamble, Banks asked

Clark if she “wanted to know how he did it.” Clark did not understand what Banks

meant, so Banks demonstrated by producing his gun and using her brother as a “dummy.”

       {¶16} With Scales laying on the floor under him, Banks “bent down over Khoury”

and indicated that the person Scales stood in for somehow “wrestled” Banks’s pistol from

him but Banks got it back. Banks then demonstrated that he shot the other person in the

stomach before he ran off.

       {¶17} A few days later, Clark was driving with her brother and Banks in her car in

the area where Hawthorne’s murder occurred. When they passed the “memorial” set up

for the victim, Banks stated, “I did that.”
         {¶18} Clark shared these revelations with her friend Toyja Davis. Davis, in turn,

asked a police officer with whom she was acquainted what to do with the information.

In this way, Det. Smith eventually focused on Banks as being involved in the murder.

Smith soon discovered that Banks had been dating K.J.’s cousin for some time. In

addition, DNA consistent with Banks’s was found to be on the black cell phone left at the

scene.

         {¶19} Banks was indicted in this case on three counts, charged with two counts of

aggravated murder and one count of aggravated robbery. Each count contained one- and

three-year firearm specifications. Two defense attorneys were assigned to represent him.

         {¶20} Banks’s case proceeded to a jury trial. After considering the evidence, the

jury found Banks not guilty of aggravated murder in count one, but guilty of the lesser

included offense of murder with both firearm specifications. The jury acquitted Banks of

the second and third counts. After the trial court imposed sentence, Banks filed the

instant appeal.

         {¶21} He challenges his conviction with seven assignments of error. His first and

second present similar issues and are addressed together as follows.

         “I. The trial court erred in permitting the state to impeach its own witness

with a prior inconsistent statement and in admitting that, as well as other hearsay

statements[,] as substantive evidence in violation of the Ohio Rules of Evidence and

in violation of Appellant’s due process rights under the Fourteenth Amendment to

the United States Constitution.
       “II.   The trial court erred in permitting introduction of impermissible

hearsay which denied the Appellant a fair trial in violation of the Ohio Rules of

Evidence and in violation of the Due Process Clause of the Fourteenth Amendment

and the Confrontation Clause of the Sixth Amendment to the United States

Constitution.”

       {¶22} In these assignments of error, Banks asserts the trial court allowed the

prosecutor to introduce improper evidence during the state’s case-in-chief. Banks claims

the evidence violated Evid.R. 607, 801, 802, and his right to confront his accusers.

       {¶23} This court remains mindful in reviewing Banks’s claim that the admission or

exclusion of relevant evidence rests within the trial court’s sound discretion. State v.

Robb, 88 Ohio St.3d 59, 68, 723 N.E.2d 1019 (2000). Thus, the record must reflect not

only that error occurred, but also the existence of an abuse of discretion, in order for an

appellate court to disturb the ruling of the trial court as to the admissibility of evidence.

See State v. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998).

       {¶24} Banks first asserts that the trial court permitted the prosecutor to impeach

K.J., who was a state’s witness, without first meeting the requirements of Evid.R. 607.

A review of the record reflects Banks objected to the prosecutor’s use of leading

questions with K.J. The trial court sustained Banks’s objection, but K.J.’s manner of

responding to the questions nevertheless caused the prosecutor to return to that method of

direct examination.

       {¶25} Evid.R. 607(A) provides in pertinent part:
                     The credibility of a witness may be attacked by any party except that
              the credibility of a witness may be attacked by the party calling the witness
              by means of a prior inconsistent statement only upon a showing of surprise
              and affirmative damage. * * * . (Emphasis added).

              {¶26} Evid.R. 611(C), however, states in pertinent part that, “[w]hen a party calls

       a hostile witness, an adverse party, or a witness identified with an adverse party,

       interrogation may be by leading questions.” (Emphasis added.) This rule provides the

       court with discretion to allow counsel to proceed in such a fashion.

              {¶27} In addressing the distinction between the applicability of the two rules, this

       court noted as follows in State v. Darkenwald, 8th Dist. No. 83440, 2004-Ohio-2693,

       ¶15-16:

              Traditionally, a “hostile witness” is one who surprises the calling party at trial by
       turning against him while testifying. The traditional “hostile witness” is addressed under
       Evid.R. 607. An “adverse witness” is one who identifies with the opposing party
       because of a relationship or a common interest in the outcome of the litigation. Many
       times, the terms “hostile” and “adverse” are used interchangeably without drawing a clear
       distinction between the meaning of the terms. The distinction in this case, however, is
       clear.
              Cross-examination is a term of art used to define the examination of a witness by
       the opposing party. During cross-examination, the rules allow leading questions.
       Typically, leading questions are not allowed on direct examination unless an exception
       applies. See Evid.R. 611. Again, the terms “cross-examination” and “leading questions”
       are used interchangeably without a clear distinction being drawn between the meaning of
       the terms. (Emphasis added.)

       {¶28} Darkenwald explained that, although Evid.R. 607 applies to attacking the credibility of a

“hostile” witness, that rule does not apply to an adverse witness, citing State v. Burroughs, 7th Dist. No.

93-CA-13, 1999 WL 1243136 (Dec. 16, 1999). In Burroughs, the defendant presented the same

argument as Banks does in his first assignment of error, but the court disagreed. Because the record in

Burroughs demonstrated the witness was uncooperative, evasive, and inaudible numerous times, and
because the witness’s “identification with the Appellant alone would permit the prosecution to ask

leading questions of her on direct examination pursuant to Evid.R. 611(C),” the witness was properly

determined to be adverse. Id.

             {¶29} Likewise, the record in this case shows K.J. was aligned with Banks but was

      reluctant to reveal his connection to him.      As in Burroughs, although K.J. recalled

      making a statement to police, when presented with his audiotaped statement, K.J.’s

      recollection at trial remained different from what he heard on it. Because K.J.s responses

      to the prosecutor’s questions were evasive, the prosecutor was unable to present anything

      material from them, and the trial court properly permitted the prosecutor to ask leading

      questions to develop K.J.’s testimony. Id.; see also In re: Wise, 7th Dist. No. 05 JE 40,

      2007-Ohio-1393, ¶ 66. Evid.R. 611 applied, therefore, rather than Evid.R. 607. Id.

             {¶30} Consequently, the trial court did not abuse its discretion.       Banks’s first

      assignment of error is overruled.

             {¶31} Banks argues in his second assignment of error that the trial court improperly

      permitted Det. Landreau and Officer Lentz to provide hearsay testimony. Because the

      record reflects his defense attorneys did not object to the evidence, Banks argues the trial

      court committed plain error.

             {¶32} Notice of plain error is to be taken with the utmost caution, under

      exceptional circumstances and only to prevent a manifest miscarriage of justice. State v.

      Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), at paragraph three of the syllabus. In

      order to find plain error under Crim.R. 52(B), it must be determined that, but for the error,
the outcome of the trial clearly would have been otherwise. Id. at paragraph two of the

syllabus. A review of the challenged testimony demonstrates the trial court’s decision to

admit it did not amount to error, let alone plain error.

       {¶33} Evid.R. 801(C) defines hearsay as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.”    Banks challenges testimony of two police officers concerning

separate interviews of K.J. that occurred shortly after the incident.

       {¶34}   “[W]here statements are offered to explain an officer’s conduct while

investigating a crime, such statements are not hearsay.” State v. Blevins, 36 Ohio App.3d

147, 149, 521 N.E.2d 1105 (10th Dist. 1987), citing State v. Thomas, 61 Ohio St.2d 223,

232, 400 N.E.2d 401 (1980) (emphasis added). Simply put, the statements are not

offered to prove the truth of the matter asserted. The court in Blevins went on to state:

              In order to admit out-of-court statements which explain an officer’s
       conduct during the course of a criminal investigation, the conduct to be
       explained must be relevant, equivocal and contemporaneous with the
       statements. In addition, the statements must meet the standard of Evid.R.
       403(A). Id. at paragraph one of the syllabus.

       {¶35} The disputed testimony in this case fits within the confines of permissible

evidence, because both Det. Landreau and Officer Lentz arrived at the scene shortly after

the incident, each described relevant information he gained during his questioning of K.J.,

and explained the actions he then took.           State v. Monroe, 8th Dist. No. 94768,

2011-Ohio-3045, ¶ 43. In describing the information gained, moreover, each was careful
to refrain from stating outright any of K.J.’s “declarations.”        At any event, K.J.

subsequently testified, thereby permitting Banks his right of confrontation.

        {¶36} Finally, because the probative value of the identified portions of the

testimony Banks challenges was not substantially outweighed by either the danger of

unfair prejudice, of confusion of the issues, or of misleading the jury, as proscribed by

Evid.R. 403(A), the trial court neither abused its discretion nor committed plain error.

Id., at ¶ 44.

        {¶37} Accordingly, Banks’s second assignment of error also is overruled.

        {¶38} Banks’s third assignment of error states:

        “III. The Appellant was denied a fair trial when the state committed prosecutorial

misconduct in his [sic] closing argument[,] depriving the Appellant of due process in

violation of the Fourteenth Amendment to the United States Constitution.”

        {¶39} Banks asserts that, during closing argument to the jury, the prosecutor

inferred K.J. was a liar and mischaracterized several witness’s testimony in an effort to

present facts that were not introduced into evidence. However, the record does not

support his assertion.

        {¶40} The test for prosecutorial misconduct is whether the prosecutor’s remarks

were improper and, if so, whether they prejudicially affected the substantial rights of the

accused. State v. Bey, 85 Ohio St.3d 487, 709 N.E.2d 484 (1999); State v. Lott, 51 Ohio

St.3d 160, 165, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 592, 112

L.Ed.2d 596. As to the second portion of the test, in order to determine whether a
prosecutor’s remarks are prejudicial to the accused, the entire closing argument must be

reviewed. State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993). Both the

prosecution and defense have wide latitude in closing arguments “as to what the evidence

has shown and what reasonable inferences may be drawn therefrom.” Lott.

      {¶41} In this case, a review of the challenged remarks demonstrates that the

prosecutor simply set forth what he thought the evidence showed.           Even if    the

prosecutor’s description of the witness’s testimony was inaccurate, the trial court

nevertheless instructed the jury to rely on its own recollection of the evidence. State v.

Durbin, 2d Dist. No. 2003 CA 53, 2004-Ohio-2201, ¶ 15.

      {¶42} The prosecutor also acted within permissible bounds when he reminded the

jury that K.J.’s credibility had to be carefully weighed in light of the other evidence

presented. State v. Ferko, 8 th Dist. No. 88182, 2007-Ohio-1588, ¶ 33.

      {¶43} Because the prosecutor did not engage in misconduct during closing

argument, Banks’s third assignment of error also is overruled.

      {¶44} Banks’s fourth assignment of error states:

      “IV.    Appellant was denied effective assistance of counsel in violation of

Amendments VI and XIV, United States Constitution and Article I, Section 10, Ohio

Constitution.”

      {¶45} In this assignment of error, Banks asserts his trial counsel rendered

ineffective assistance. Specifically, Banks points to his trial counsel’s failure to make

objections to the testimony he challenges in his second assignment of error, and counsel’s
misstatement of the current law in making a motion for acquittal at the close of the state’s

evidence.

       {¶46} An appellate court reviews a claim of ineffective assistance of counsel

under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). Thus, trial counsel’s performance will not be deemed

ineffective unless a defendant can show that his lawyer’s performance fell below an

objective standard of reasonable representation and that prejudice arose from the lawyer’s

deficient performance. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),

paragraph one of the syllabus. To show prejudice, a defendant must demonstrate that,

but for his lawyer’s errors, a reasonable probability exists that the trial result would have

been different. Id. at paragraph two of the syllabus.

       {¶47} Judicial scrutiny of a lawyer’s performance must be highly deferential.

State v. Sallie, 81 Ohio St.3d 673, 674, 693 N.E.2d 267 (1998). This court will not

second-guess what could be considered to be a matter of trial strategy. State v. Smith, 17

Ohio St.3d 98, 477 N.E.2d 1128 (1985).

       {¶48} This court previously has determined the trial court committed no error in

admitting the testimony of which Banks complained in his second assignment of error.

Moreover, decisions regarding when to raise objections fall within the realm of trial

strategy.   State v. Davis, 8th Dist. No. 91943, 2009-Ohio-3894.            Therefore, trial

counsel’s performance was not deficient on this ground.
       {¶49} As to trial counsel’s attempt to resurrect State v. Kulig, 37 Ohio St.2d 157,

309 N.E.2d 897 (1974), counsel’s effort can be taken two ways, neither of which supports

Banks’s argument.

       {¶50} First, counsel’s action can be assumed a matter of trial strategy. Because

the trial judge only recently had been elected to his position, trial counsel perhaps hoped

the judge could be persuaded to reinstate the analysis used in that case, which was

extremely favorable to defendants. The record reflects the trial court gave consideration

to counsel’s effort.

       {¶51} Second, because Kulig was extremely favorable to defendants, even if trial

counsel were unaware that the case had been overruled by State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), Banks cannot demonstrate he was prejudiced by counsel’s

deficiency in citing Kulig.     Indeed, trial counsel ultimately succeeded in securing

Banks’s acquittal on two of the charges, and in persuading the jury that Banks did not

commit the crime with prior calculation and design.

       {¶52} Because Banks cannot support his claim that trial counsel provided

ineffective assistance, his fourth assignment of error also is overruled.

       {¶53} Banks’s fifth and sixth assignments of error state:

       “V.    The trial court erred by denying Appellant’s motion for acquittal

pursuant to Crim.R. 29 when the evidence was insufficient to sustain a conviction

for Domestic Violence (sic).

       “VI. Appellant’s conviction is against the manifest weight of the evidence.”
      {¶54} In these assignments of error, Banks challenges both the sufficiency and the

weight of the evidence presented at trial to support his conviction for murder. He

contends the state’s theory that he committed the crime was mere “speculation” that was

unsupported by admissible, credible testimony.

             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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
      syllabus (1991).

      {¶55} The record reflects that the case against Banks was based, in part, on

circumstantial evidence. Nonetheless, circumstantial evidence has no less value than

direct or testimonial evidence. State v. Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236

(1988). The question is whether the state presented any evidence, that if believed, would

support a conviction of murder pursuant to R.C. 2903.02(A), that is, that Banks

“purposely cause[d] the death of” LaSalle Hawthorne.

      {¶56} Rodriguez and Jackson testified that Hawthorne left Rodriguez’s house in

K.J.’s company but K.J. was not someone with whom Hawthorne normally associated.

Rodriguez and Jackson heard a shot within minutes of Hawthorne’s departure; K.J. then

appeared at the house shouting that Hawthorne had been shot. The police found a cell

phone with DNA consistent with Banks’s on the ground near where the victim lay. K.J.,

whose cousin dated Banks, seemed anxious to retrieve that particular phone.
       {¶57} The police were unable to corroborate K.J.’s version of the incident.

However, on the night of the incident, Lentz noticed that Banks seemed to take an

unusual interest in viewing the scene; Lentz therefore questioned Banks before releasing

him.

       {¶58} According to Clark’s testimony, in reinacting his role in the incident, Banks

stood over the victim, gun in hand, and shot him in the stomach at close range. Banks

seemed willing to take responsibility for the crime and displayed no remorse.

       {¶59} When viewed in a light most favorable to the prosecution, a reasonable juror

could have found, based upon this evidence, that Banks purposefully killed Hawthorne.

State v. Rios, 8th Dist. No. 95464, 2011-Ohio-3063. Consequently, the trial court did not

err in denying Banks’s motion for acquittal.

       {¶60} In order to warrant reversal of a jury’s verdicts on a manifest weight of the

evidence claim, this 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 evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the judgment must be reversed and a new trial ordered. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). This court remains mindful

in its review, however, that the weight of the evidence and the credibility of the witnesses

are matters primarily for the jury to assess. State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212, paragraph one of the syllabus (1967).
      {¶61} Furthermore, the power to reverse a judgment of conviction as against the

manifest weight of the evidence must be exercised with caution and in only the rare case

in which the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1983). This case does not present that rare situation.

      {¶62} In this case, the state’s witnesses presented testimony that provided a

coherent version of the incident, provided a timeline that was consistent, and provided

evidence that tied Banks to the murder.         State v. Wilson, 8th Dist. No. 90267,

2008-Ohio-3354, ¶ 34. K.J.’s versions of his actions that night, especially prior to the

incident, and his explanations at trial, on the other hand, were inconsistent; simply put,

K.J. was not a credible reporter. Clark’s descriptions of Banks’s actions and demeanor

after the murder, however, were both straightforward and chilling.

      {¶63} The jury weighed credibility and it, as the fact finder, was free to believe all,

none, or some of what the witnesses said during trial. In addition, the jury became well

aware of the relationship between Banks and K.J. Based upon the record, this court

cannot find that the jury either lost its way or created a manifest miscarriage of justice

when it found Banks guilty of murder with firearm specifications. Thompkins, 78 Ohio

St.3d 360, 678 N.E.2d 541 (1997).

      {¶64} Accordingly, Banks’s fifth and sixth assignments of error also are overruled.

      {¶65} In his seventh assignment of error, Banks states:
       “VII. The combined effect of the trial court’s error and counsel’s [sic] errors

denied Appellant a fair trial under the Due Process clause of the Fourteenth

Amendment to the United States Constitution.”

       {¶66} Banks claims the cumulative effect of the errors he presents in his first

through sixth assignments of error deprived him of a fair trial. His claim lacks merit.

       {¶67} Pursuant to the doctrine of cumulative error, a judgment may be reversed

where the cumulative effect of errors deprives a defendant of his constitutional rights,

even though the errors individually do not rise to the level of prejudicial error. State v.

Garner, 74 Ohio St.3d 49, 64, 1995-Ohio-168, 656 N.E.2d 623, certiorari denied (1996),

517 U.S. 1147, 116 S.Ct. 1444, 134 L.Ed.2d 564; State v. DeMarco, 31 Ohio St.3d 191,

656 N.E.2d 623 (1987), paragraph two of the syllabus. However, because this court

found no instances of error in this case, the doctrine of cumulative error is inapplicable.

       {¶68} Accordingly, Banks’s seventh assignment of error is overruled.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
______________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
MARY J. BOYLE, J., CONCUR
