[Cite as State v. Ranes, 2016-Ohio-448.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PUTNAM COUNTY




STATE OF OHIO,
                                                          CASE NO. 12-15-03
       PLAINTIFF-APPELLEE,

      v.
                                                          OPINION
DAVID RANES,

       DEFENDANT-APPELLANT.


                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 2014 CR 63

                                      Judgment Affirmed

                            Date of Decision: February 8, 2016



APPEARANCES:

        F. Stephen Chamberlain for Appellant

        Todd C. Schroeder for Appellee
Case No. 12-15-03


WILLAMOWSKI, J.

       {¶1} Defendant-appellant, David Ranes (“Ranes”), brings this appeal from

the judgment of the Common Pleas Court of Putnam County, Ohio, which entered

his conviction after a jury found him guilty of one count of engaging in a pattern

of corrupt activity, a felony of the first degree in violation of R.C. 2923.32(A)(1);

one count of illegal manufacture of methamphetamines, a felony of the second

degree in violation of R.C. 2925.04(A) & (C)(3)(a); and one count of illegal

assembly or possession of chemicals for the manufacture of drugs, a felony of the

third degree in violation of R.C. 2925.041(A) & (C). Ranes alleges that the trial

court erred in refusing to appoint new counsel for him on the morning of the trial

and in allowing the State to introduce evidence of his prior conviction. He further

contends that his trial counsel was ineffective. For the reasons that follow, we

affirm the trial court’s judgment.

                       Factual and Procedural Background

       {¶2} In the summer and fall of 2014, detectives of the Putnam County

Sheriff’s Office, Multi Area Narcotics Task Force, investigated a group of

individuals for their involvement in illegal manufacture of methamphetamine.

The investigation led to arrests of Ranes and multiple other individuals as co-

conspirators. A search of a residence where Ranes had previously resided resulted

in the discovery of precursors and other items used for the manufacture of

methamphetamine, all of which were linked to Ranes. Additionally, records from

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the national precursor log exchange (NPLEx) showed multiple purchases of

pseudoephedrine made by Ranes and the co-conspirators. Pseudoephedrine is a

precursor used in the manufacture of methamphetamine.

       {¶3} Ranes was indicted on November 20, 2014. He pled not guilty and

received appointed counsel, Attorney William Kluge (“Attorney Kluge”). Several

of the co-conspirators agreed to testify against Ranes. Prior to trial Ranes filed a

motion in limine, requesting an order “prohibiting the introduction of evidence of

any kind about the pattern of corrupt activity, unless it is directly related to the

conduct of [the] Defendant, David Ranes.” (R. at 31.)

       {¶4} On the morning of the trial, February 9, 2015, Ranes orally moved for

substitution of counsel, complaining that he was not satisfied with Attorney

Kluge’s preparation for trial. (Tr. of Proceedings at 7, Feb. 9, 2015 (“Tr.”).)

Attorney Kluge indicated that he was prepared to withdraw if the trial court

accepted Ranes’s request for new counsel. (Tr. at 6-7.) He attested, however, that

he was adequately prepared to try the case and to provide effective assistance of

counsel to Ranes. (Tr. at 8-9.) The trial court denied Ranes’s request for new

counsel and the case proceeded to trial with Attorney Kluge as trial counsel.

       {¶5} Before the presentation of the evidence, the trial court heard

arguments with respect to the motion in limine. As a result of the hearing, the trial

court excluded some of the evidence about Ranes’s other criminal activity, but

allowed the introduction of a 2009 conviction for illegal assembly or possession of

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chemicals for the manufacture of drugs, for the limited purpose allowed under

Evid.R. 404(B), with accompanying limiting instruction. (Tr. of Proceedings at

122, 124, Feb. 9, 2015 (“Tr.”).)

         {¶6} The jury found Ranes guilty on all three counts. (R. at 90.) After the

trial, Ranes filed a pro se motion to set aside the verdict and set a new trial date.

(R. at 93.) In his motion Ranes argued that his trial counsel was ineffective “[d]ue

to his lack of preparation and time spent with defendant, his lack of knowledge of

case and his lack of discretion in using key points brought up by defendant in

cross examination of key witnesses.” (Id.) The trial court overruled the motion.

(R. at 96.) Ranes was subsequently sentenced to eleven years on count one, eight

years on count two, and thirty-six months on count three, all to be served

consecutively. (R. at 99.)

         Ranes appeals raising three assignments of error for our review, as quoted

below.

                                Assignments of Error

         ASSIGNMENT OF ERROR ONE: THE TRIAL COURT
         COMMITTED AN ERROR IN NOT GRANTING THE
         DEFENDANT’S ORAL PRO SE MOTION TO REMOVE TRIAL
         COUNSEL AND APPOINT SUBSTITUTE COUNSEL THE
         MORNING OF THE COMMENCEMENT OF THE TRIAL

         ASSIGNMENT OF ERROR TWO: THE TRIAL COURT
         COMMITTED ERROR IN ALLOWING THE STATE TO
         INTRODUCE EVIDENCE OF A PRIOR CONVICTION TO BE
         USED IN THE STATE OF OHIO’S CASE IN CHIEF


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       ASSIGNMENT OF ERROR THREE: DEFENDANT’S TRIAL
       COUNSEL WAS INEFFECTIVE

                First Assignment of Error—Substitution of Counsel

       {¶7} Ranes alleges that the trial court erred when it denied his request for

new counsel on the morning of the trial. He relies on the criminal defendant’s

right to counsel guaranteed by the United States Constitution and the Ohio

Constitution.   See State v. Combs, 3d Dist. Hancock No. 5-96-15, 1996 WL

518112, *1 (Sept. 12, 1996).

       {¶8} We have previously recognized that although a criminal defendant has

an absolute right to counsel, there is no “absolute right” to counsel of one’s own

choosing. Id., citing United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990),

and State v. Marinchek, 9 Ohio App.3d 22, 23, 457 N.E.2d 1198 (9th Dist.1983).

Therefore, an indigent defendant does not have the right to choose his counsel.

Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 204 (1965). In situations

where an issue of substitution of appointed counsel arises, an indigent defendant

must demonstrate “good cause” to warrant the change.            Combs at *1.   We

recognized that good cause for substitution of counsel might be “a conflict of

interest, a complete breakdown in communication, or an irreconcilable conflict

which leads to an apparently unjust verdict.” Id. If the defendant demonstrates

good cause, the trial court has a duty to inquire whether the dissatisfaction with

counsel is justifiable and whether it requires substitution of counsel. Id.


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       An inquiry into whether the substitution of counsel is warranted
       serves several important goals. This procedural protection not only
       aids in determining whether “good cause” has been shown, but
       serves to ease the defendant’s distrust, to preserve the integrity of the
       trial process, and to foster confidence in the jury verdict.

Illes at 1131. In its inquiry the trial court must balance the defendant’s preference

as to his counsel’s choice against “the court’s interest in the integrity of the

proceedings and the public’s interest in the proper administration of justice.”

United States v. Mays, 69 F.3d 116, 121 (6th Cir.1995). “Attorneys cannot be

shed at every stage of the proceeding so as to impede that orderly administration.”

Marinchek at 23-24.

       {¶9} The decision on the defendant’s request for substitution of counsel

rests within the sound discretion of the trial court. Combs at *1; N. Eagle, Inc. v.

Kosas, 8th Dist. Cuyahoga No. 92358, 2009-Ohio-4042, ¶ 32; see also State v.

Keenan, 81 Ohio St.3d 133, 137, 1998-Ohio-459, 689 N.E.2d 929 (1998)

(applying the same standard to the trial court’s disqualification of counsel).

Because abuse of discretion connotes more than an error in judgment, we will not

substitute our judgment for that of the trial court. Keenan at 137, citing State v.

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Therefore, we will only

reverse the trial court’s decision if “the trial court’s attitude [was] unreasonable,

arbitrary, or unconscionable.” Id. “A decision is unreasonable if there is no sound

reasoning process that would support the decision.” State v. Britton, 3d Dist.

Marion No. 9-99-81, 2000-Ohio-1881, 2000 WL 765805, *4.

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       {¶10} In the instant case, Ranes complains that the trial court did not

sufficiently inquire into his dissatisfaction with Attorney Kluge. Our review of the

transcript does not support Ranes’s contention. The transcript indicates that the

trial court gave Ranes an opportunity to explain the reasons for his dissatisfaction

with his counsel. Ranes complained that Attorney Kluge only spent an hour with

him in the past three months and did not go over all the available evidence with

him. (Tr. at 7.) Ranes further complained that his attorney did not file any of the

motions or subpoenas that Ranes requested. (Id.) Ranes alleged that his attorney

had been too busy with other cases and his case was not getting sufficient

attention.   (Id.)   Based on these allegations, the trial court inquired further,

attempting to determine what motions Attorney Kluge failed to file on Ranes

behalf. Ranes responded that he had asked for a motion to suppress and one other

motion, which he could not remember at the time. (Tr. at 7-8.) The trial court

then directed its inquiry to Attorney Kluge, asking whether he could provide

effective assistance of counsel to Ranes and whether he had spent adequate time

with his client to prepare for trial. (Tr. at 8-9.) Attorney Kluge responded in the

affirmative to both questions. (Id.)

       {¶11} Ranes’s allegations during the colloquy failed to show “a conflict of

interest, a complete breakdown in communication, or an irreconcilable conflict

which leads to an apparently unjust verdict.” Combs, 3d Dist. Hancock No. 5-96-

15, 1996 WL 518112, at *1. Indeed, Ranes’s statements to the trial court indicated

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that he had confidence in Attorney Kluge, but was dissatisfied with the amount of

“face time” spent in preparation of trial. (Tr. at 8.) Ranes did not demonstrate,

however, that the amount of time Attorney Kluge spent with him was too short for

adequate trial preparation. He did not provide any evidence to show that Attorney

Kluge was not prepared to provide effective assistance during his trial.

Conversely, the record shows that Attorney Kluge engaged in discovery, filed and

argued motions, and zealously represented his client at trial. He evaluated the

issues for suppression and determined that Ranes made no statements to law

enforcement. (Tr. at 123.) He further determined that Ranes lacked standing to

raise many of the issues with respect to searches and seizures in the case and

therefore, filing the motions to suppress requested by Ranes would be futile. (Id.)

       {¶12} The inquiry conducted by the trial court was sufficient to satisfy the

goal of determining whether Ranes demonstrated good cause for substitution of

counsel. Due to Ranes’s failure to demonstrate good cause for substitution of

counsel on the day of the trial, the trial court’s denial of his request was not an

abuse of discretion. Accordingly, we overrule the first assignment of error.

         Third Assignment of Error—Ineffective Assistance of Counsel

       {¶13} We take the third assignment of error out of order due to the nature

of allegations being similar to those contained in the first assignment of error.

Ranes contends that his trial counsel was ineffective because he “had spent as little

as one hour prior to commencement of the trial with him.” (App’t Br. at 14.)

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Furthermore, Ranes complains that his counsel “failed to present any substantial

statement in mitigation of sentence.”      (Id.)   No prejudice is claimed in this

assignment of error.

       {¶14} In order to prevail on a claim of ineffective assistance of counsel, a

criminal defendant must first show that the counsel’s performance was deficient in

that it fell “below an objective standard of reasonable representation.” State v.

Keith, 79 Ohio St.3d 514, 534, 684 N.E.2d 47 (1997). Second, the defendant must

show “that the deficient performance prejudiced the defense so as to deprive the

defendant of a fair trial.” Id., citing Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to demonstrate prejudice, the

defendant must prove a reasonable probability that the result of the trial would

have been different but for his or her counsel’s errors. Id.

       {¶15} Because Ranes does not allege or demonstrate any prejudice, he fails

to sustain his burden of establishing a claim of ineffective assistance of counsel.

See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62;

State v. Robinson, 108 Ohio App.3d 428, 431, 670 N.E.2d 1077 (3d Dist.1996).

Accordingly, we overrule the third assignment of error.

               Second Assignment of Error—Other Acts Evidence

       {¶16} The second assignment of error challenges admissibility of the

evidence. In order for evidence to be admissible it must be relevant. Evid. R. 402.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence

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of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Evid. R. 401. Generally,

“[a]ll relevant evidence is admissible.” Evid. R. 402. This general principle has

several exceptions, which are encompassed in Evid.R. 402, 403, and 404. State v.

Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 11-12. As

applicable to this appeal, Evid.R. 404(B) provides, in pertinent part,

       Evidence of other crimes, wrongs, or acts is not admissible to prove
       the character of a person in order to show action in conformity
       therewith. It may, however, be admissible for other purposes, such
       as proof of motive, opportunity, intent, preparation, plan,
       knowledge, identity, or absence of mistake or accident.

Ohio Evid. R. 404. The Ohio Supreme Court explained this rule as follows:

       Evid.R. 404 codifies the common law with respect to evidence of
       other acts of wrongdoing. State v. Lowe, 69 Ohio St.3d 527, 530,
       634 N.E.2d 616 (1994). The rule contemplates acts that may or may
       not be similar to the crime at issue. State v. Broom, 40 Ohio St.3d
       277, 282, 533 N.E.2d 682 (1988). If the other act is offered for some
       relevant purpose other than to show character and propensity to
       commit crime, such as one of the purposes in the listing, the other
       act may be admissible. Id. Another consideration permitting the
       admission of certain other-acts evidence is whether the other acts
       “form part of the immediate background of the alleged act which
       forms the foundation of the crime charged in the indictment” and are
       “inextricably related” to the crime. State v. Curry, 43 Ohio St.2d 66,
       73, 330 N.E.2d 720 (1975). See also Broom at 282, 533 N.E.2d 682.

Morris at ¶ 13. Therefore, although Evid.R. 404(B) “precludes admission of

evidence of crimes, wrongs, or acts offered to prove the character of an accused to

demonstrate conforming conduct, * * * it affords the trial court discretion to admit

other acts evidence for any other purpose.” State v. Williams, 134 Ohio St.3d 521,


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2012-Ohio-5695, 983 N.E.2d 1278, ¶ 2 (2012). The Supreme Court noted that the

discretion afforded by Evid.R. 404(B) to the trial court is “broad.” Id. at ¶ 17.

       {¶17} The basis of this assignment of error is Ranes’s 2009 conviction

from Paulding County for illegal assembly or possession of chemicals for the

manufacture of drugs, a felony of the third degree in violation of R.C.

2925.041(A). (See State’s Ex. 19.) Through his motion in limine Ranes argued

that evidence of this prior conviction was highly prejudicial and that the State

should be precluded from introducing it at trial. (R. at 31; Tr. at 116-117, 119-

120.) At the hearing the State explained that it intended to show that certain

materials, such as pseudoephedrine and other common household items, were

purchased and assembled by Ranes. Although these materials could normally be

used for innocent purposes, they could be used for illegal manufacture of

methamphetamine. (Tr. at 118.) The State intended to use the evidence of prior

conviction to prove that Ranes engaged in purchases and assembly of the

commonly used and innocent supplies with an illegal intent of manufacturing

drugs. (Id.) The State additionally indicated that the evidence had the tendency to

establish opportunity, preparation, knowledge, “absence of mistake or accident in

the purchase of the various materials needed for the manufacture of meth,” and

modus operandi, because “the process used in the ‘09 case was the same process

used in this case.” (Tr. at 118-119.)




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      {¶18} On appeal Ranes asserts that allowing the evidence was prejudicial.

In particular, he argues that the evidence had little probative value and therefore,

its probative value was substantially outweighed by the danger of unfair prejudice,

and thus, it required exclusion under Evid.R. 403(A). We must emphasize that in

order to warrant exclusion of evidence, its probative value must be “substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.” (Emphasis added.) Evid. R. 403(A). As the Ohio Supreme

Court explained:

      “ ‘Exclusion on the basis of unfair prejudice involves more than a
      balance of mere prejudice. If unfair prejudice simply meant
      prejudice, anything adverse to a litigant’s case would be excludable
      under Rule 403. Emphasis must be placed on the word “unfair.”
      Unfair prejudice is that quality of evidence which might result in an
      improper basis for a jury decision. Consequently, if the evidence
      arouses the jury’s emotional sympathies, evokes a sense of horror, or
      appeals to an instinct to punish, the evidence may be unfairly
      prejudicial. Usually, although not always, unfairly prejudicial
      evidence appeals to the jury’s emotions rather than intellect.’ ”

State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 24

(2004), quoting Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 2001-

Ohio-248, 743 N.E.2d 890 (2001).

      {¶19} Nothing in the argument on appeal supports Ranes’s contention that

the probative value of the evidence at issue was substantially outweighed by the

danger of unfair prejudice. While Ranes complains about prejudice from the

admission of the evidence, he fails to point out how the evidence resulted in an


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improper basis for the jury’s decision in this case. Ranes does not demonstrate

that the limited evidence proffered by the State did anything to arouse the jury’s

emotional sympathies, evoke a sense of horror, or appeal to an instinct to punish,

as opposed to simply showing the fact that Ranes was previously convicted of

illegal assembly or     possession of     chemicals for the manufacture of

methamphetamine.

      {¶20} This evidence had a tendency to make more probable the fact that

Ranes had the criminal intent when purchasing and collecting items such as

pseudoephedrine, and that he had the knowledge, opportunity, or preparation to

manufacture methamphetamine. Thus, the testimony proffered by the State was

relevant and fell within the permissible purposes under Evid.R. 404(B).

Furthermore, its probative value was not substantially outweighed by the danger of

unfair prejudice.   Accordingly, the trial court did not abuse its discretion in

denying the motion in limine.

      {¶21} Ranes also complains about the method in which the State presented

the evidence of the 2009 conviction at trial. A review of the record shows that the

evidence of the 2009 conviction was introduced through the testimony of Ranes’s

probation officer, Mike Speice (“Officer Speice”). Officer Speice testified that in

December 2008, he conducted a home visit at Ranes’s residence and observed

“drug paraphernalia within open sight.”        (Tr. at 283.)    He testified that




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subsequently Ranes was convicted of illegal assembly or possession of chemicals

for the manufacture of methamphetamine. (Tr. at 283-284.)

       {¶22} Ranes complains that this testimony did not serve to show

knowledge, identity, or lack of mistake, but rather, it was “a clear attempt to show

a propensity on the part of the defendant to commit crimes of this type.” (App’t

Br. at 12.) Ranes, however, did not object during trial to this limited testimony by

the State and did not ask for an exclusion of the evidence on the basis that it failed

to serve the intended evidentiary purpose. Therefore, he forfeited this issue for the

purpose of the current appeal. See State v. Slagle, 65 Ohio St.3d 597, 604, 605

N.E.2d 916 (1992) (“As a general rule an appellate court will not consider an

alleged error that the complaining party did not bring to the trial court’s attention

at the time the alleged error is said to have occurred. This rule is a product of our

adversarial system of justice. ‘Its purpose is practical: to prevent the defensive trial

tactic of remaining silent on a fatal error during trial with the expectation of

demanding a reversal on appeal if the verdict is guilty.’ ”), quoting State v. Craft,

52 Ohio App.2d 1, 4, 367 N.E.2d 1221 (1st Dist.1977).

       {¶23} Furthermore, the trial court gave limiting instructions to the jury,

stating,

       Evidence was received about the commission of a past crime of the
       defendant of illegal assembly or possession of chemicals for the
       manufacture of drugs. That evidence was received only for a limited
       purpose. It was not received, and you may not consider it, to prove
       the character of the defendant in order to show that he acted in

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         conformity with that character. * * * you may consider that evidence
         only for the purpose of deciding whether it proves his intent or
         knowledge of circumstances surrounding the offense charged in
         Count Three in this trial. It may not be considered for any purpose
         relating to Count One and Two.

(Tr. at 566.) In Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278,

at ¶ 24, the Ohio Supreme Court held that where the trial court instructed the jury

that the evidence could not be used for impermissible propensity findings, the

defendant was not unduly prejudiced.

         {¶24} For the foregoing reasons, we overrule the second assignment of

error.

                                     Conclusion

         {¶25} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Common Pleas Court of Putnam County, Ohio is

therefore affirmed.

                                                               Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




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