         [Cite as State v. Barrow, 2018-Ohio-1703.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NO. C-160378
                                                      TRIAL NO. B-1400664-B
        Plaintiff-Appellee,                       :

  vs.                                             :      O P I N I O N.

ANTHONY BARROW,                                   :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 2, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Jeffrey Brandt, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



D ETERS , Judge.

       {¶1}    Defendant-appellant       Anthony Barrow       appeals his kidnapping

conviction. He assigns as error the trial court’s admission of evidence, its failure to

grant his motion for a mistrial for an alleged Brady violation, the sufficiency and

weight of the evidence supporting his conviction, and the trial court’s and his

counsel’s handling of a claimed conflict of interest near the end of the trial. Finding

none of his assigned errors meritorious, we affirm the trial court’s judgment.

                           Evidence Adduced at the Jury Trial

       {¶2}    Barrow and codefendants Andre Buck, Lonnie Rucker, and Timothy

Watson were indicted for multiple offenses in connection with the kidnapping of Tyrell

George.   Barrow was charged with one count of kidnapping in violation of R.C.

2905.01(A)(1), and two counts of having a weapon while under a disability in violation of

R.C. 2923.13(A)(2) and (3). The kidnapping count carried one- and three-year firearm

specifications and a repeat-violent-offender (“RVO”) specification. Barrow and Buck

were tried together before a jury. The evidence adduced at their trial was summarized in

State v. Buck, Hamilton App. No. C-160320, 2017-Ohio-8242, ¶ 29-33:

               At the jury trial, the state presented the testimony of Tyrell

       George, his brother, Timothy Kellam, codefendant Lonnie Rucker, a

       telephone-records    custodian,    forensic   specialists,   and   multiple

       investigators, including Detective [William] Hilbert and Officer

       [Timothy] Bley, in addition to numerous exhibits.

               Telephone records revealed that on the morning of February 6,

       2014, Buck and his codefendant Anthony Barrow communicated about

       20 times and in one text, Buck had asked Barrow, “Babysitter still on

       dek?”    The term babysitter referred to a person who watched over a



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          kidnapped victim to make sure he would not escape, while other

          kidnappers secured ransom money.

                  Later that day, Barrow called George on the pretense of wanting

          to buy marijuana. George did not know Barrow, but Barrow convinced

          him that he had bought marijuana from George before.            The two

          exchanged calls and agreed to meet. When George met up with Barrow,

          he got into Barrow’s van, where he was assaulted by Barrow and a second

          man. The men bound George with duct tape, wiped his clothing and neck

          with bleach, and then drove away.

                  George was moved into a second van where two more

          kidnappers, Timothy Watson and Lonnie Rucker, “babysat” him through

          the night and into the next day.

                  Rucker testified that Watson had contacted him on February 6th

          about being a babysitter. That night, Rucker picked up Watson and drove

          to a spot where a person was tied up in the back of a van. Watson said

          they had to sit and watch the victim until the other kidnappers came back

          with the money.

          {¶3}    During this same time, George’s mother, after learning from Kellam that

George had been kidnapped for ransom, had contacted the police. Uniformed officers

escorted Kellam to the police station where he worked with the police, particularly

Detective Hilbert, by communicating with the kidnappers and arranging two ransom

drops in an effort to locate and secure George’s safe return.   When these ransom drops

proved unsuccessful, Detective Hilbert became more and more concerned for George’s

safety.




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         {¶4}    As we stated in Buck, Hamilton App. No. C-160320, 2017-Ohio-8242, ¶

35-47:

                 * * * [T]he police were ultimately able to locate Buck and a phone

         that had been used to make ransom calls. At trial, Officer Bley clarified

         that Buck’s phone was recovered from Buck’s pocket.

                Buck was arrested at about 9:30 a.m., on the 7th, but the police

         still had no idea where George was.

                Within hours of Buck’s arrest, Watson and Rucker were frustrated

         that the ransom had not been paid and were concerned that Kellam had

         gone to the police. So they left the area, leaving George alone in the van.

                 At about 2:00 p.m., George escaped from the van and ran to a

         nearby home. The occupant called the police who responded, and the

         police brought George to the homicide unit. The police recovered pieces

         of duct tape from George’s socks, noted bleach stains on his clothing, and

         photographed abrasions on his wrists, caused by the duct tape.

                 Police recovered the van that George had escaped from. In the

         van, they found duct tape, pieces of mail addressed to Barrow, and

         Barrow’s and Watson’s fingerprints.

                 Telephone records revealed that Kellam had received about 45

         ransom calls from two different telephone numbers, (513) 498-2051 and

         a second number that Barrow admitted was his.

                 A Cincinnati Bell representative, Paula Papke, testified that the

         “IMEI, which is basically the serial number for the phone, which would be

         contained within the phone itself” for Buck’s cell phone matched the

         IMEI listed in the subscriber record for (513) 498-2051, a prepaid



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account. She said that subscribers who use prepaid accounts usually

provide fictitious personal information when setting up the account.

Prepaid-account subscribers have to provide a date of birth as the

password for the account, and, without the password, a subscriber cannot

access the account. Papke said that many pre-paid account subscribers

provide a date of birth that is a single digit off from their actual birthdate.

She said that the number (513) 498-2051 was subscribed in the name

“Tone Montrell,” and that the account password was “11/2/76.” Buck’s

date of birth is November 2, 1977.

        Telephone      records    confirmed     that   Buck    and     Barrow

communicated with each other and with Kellam and Watson through the

evening of the 6th and the morning of the 7th. In addition, the records

confirmed that Buck’s cell phone “pinged” off cell towers at times and

locations that corresponded to those of George’s abduction, the

kidnappers’ movements, and the officer’s arrival at his apartment.

        In recorded telephone calls from the jail, Buck complained to his

mother that his live-in girlfriend had been talking to people about the

case, specifically about his cell phone, an important part of the case

against him, according to Buck.           Buck also angrily confronted his

girlfriend about her disclosing the fact that he had purchased his cell

phone from her son when she was well aware that “this whole case [is]

surrounded by a cell phone.”

        Barrow testified in his defense that George was a friend of his.

According to Barrow, George’s brothers were known to be “[i]nto the

high-end drug trade.” George hatched an extortion plan with Barrow,



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       Watson, and [others] to get $100,000 from George’s brother. George was

       to receive $40,000.

               Barrow said that George got into his van voluntarily and that they

       drove around. At one point, Barrow said, they sat at the Shell station to

       see if George’s brother would come with the money. At that point, they

       realized that the police might be involved, so Barrow left the group. He

       did not know where George went.

               Barrow testified that he knew Buck, but that Buck was not

       involved in the kidnapping. He said that he had spoken to several people

       “through that Buck phone,” one of them being Buck.

               Buck did not testify at trial.

                                   Verdict and Sentence

       {¶5}    The jury found Barrow guilty of kidnapping, but it acquitted him of the

accompanying firearm specifications and the two counts of having a weapon under a

disability. Barrow elected to have the trial court determine the RVO specification, and

the court found Barrow guilty of that specification. It sentenced Barrow to 11 years in

prison for the kidnapping offense and six years for the RVO specification. It ordered the

terms be served consecutively to each other and to a four-year prison term in the case

numbered B-0803674, for an aggregate sentence of 21 years in prison.

                                    Other-Acts Evidence

       {¶6}    In his first assignment of error, Barrow argues that the trial court

erred by admitting evidence of two police investigations of Barrow for kidnapping

and Barrow’s prior kidnapping conviction, because the evidence was inadmissible

evidence of his bad character to show action in conformity therewith. Further,




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Barrow argues that even if the evidence was admissible, the unfair prejudice

substantially outweighed any probative value and it should have been excluded.

       {¶7}    The trial court’s decision to admit evidence rests within its broad

discretion and is reviewed under an abuse-of-discretion standard. State v. Morris,

132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. Evid.R. 404(B) provides

that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action 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.” R.C.

2945.59 contains a similar provision. The evidence, even though offered for an

admissible purpose, must be excluded “if its probative value is substantially

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

misleading the jury.” Evid.R. 403(A).

       {¶8}    Prior to trial, the state filed a notice that it intended, pursuant to

Evid.R. 404(B), to use evidence of Barrow’s involvement in and conviction for

another kidnapping. At trial, the state sought to introduce this evidence through

testimony by Sergeant Howard Grant.        Just prior to Grant’s testimony, defense

counsel asked for a sidebar conference. He requested that the trial court provide a

limiting instruction. The trial court stated that it would give a limiting instruction

that the state was offering the testimony to show modus operandi and identity, to

show that Barrow’s actions were purposeful, and that Barrow’s involvement was not

part of a scheme with George.

       {¶9}    Grant then testified that he became aware that police were

investigating an ongoing kidnapping and were concerned for the victim’s safety. He

informed Detective Hilbert, the investigating officer, that six to seven months earlier



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he had investigated two kidnappings that were similar to the one Detective Hilbert

was investigating. At that point, the trial court, at the state’s request, gave the jury

the following limiting instruction:

       Evidence is about to be received about the commission of crimes or

       other acts other than the offense with which the defendant, Mr.

       Barrow, is charged in this trial. That evidence is being received only

       for a limited purpose. It is not received and you may not consider it to

       prove the character of the defendant in order to show that he acted in

       conformity with that character. If you find that the evidence of other

       crimes or acts is true and that the defendant, Mr. Barrow, committed

       them you may consider that evidence only for the purposes of deciding

       whether it proves the defendant’s motive, intent, or purpose,

       preparation or plan to commit the offenses charged in this trial and

       also the identity of Mr. Barrow as well as the fact that he was not part

       of a plan or scheme involving -- with Mr. George.

       {¶10}   Sergeant Grant testified that in 2013 and 2014, he had investigated

two kidnappings two weeks apart where an individual had been kidnapped and held

for a large ransom. Barrow’s counsel then asked to approach the bench. Defense

counsel objected, arguing that Barrow had been investigated for two kidnapping

incidents, but charged for only one of them. The court stated that the limiting

instruction sufficiently covered these acts as well as any conviction, that the assistant

prosecuting attorney would clarify that Barrow had been charged in connection with

only one investigation, and that the defense counsel would have the opportunity to

clarify that on cross-examination.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11}     Following the sidebar conference, Sergeant Grant testified that he had

been investigating two kidnappings where the kidnapped individuals had relatives

who were known participants in the drug trade and carried large sums of money.

The kidnappers would make phone contact with the victim, lure the victim to a

location, throw the victim into a van, and then drive to another location to bind the

victim. The kidnappers would then contact the victim’s family, threatening to kill the

victim or his or her family members if they did not pay the ransom. Sergeant Grant

testified that Barrow had been a suspect in both kidnapping investigations. He had

been charged in connection with one of these kidnappings and he had pleaded guilty

to kidnapping.

       {¶12}     Here, evidence of the first police investigation of Barrow and his prior

kidnapping conviction was relevant and was admitted for proper purposes under

Evid.R. 404(B). Barrow’s defense at trial was that he did not lure George into his van

and hold him for ransom, but that George had solicited Barrow to stage his own

kidnapping to extort money from his family. Thus, Barrow placed his motive, plan,

and intent at issue in the trial.

       {¶13}     Sergeant Grant’s testimony was admissible to prove Barrow’s motive

and intent when he lured George into the van and held him for ransom. See State v.

Johnson, 2d Dist. Montgomery No. 23508, 2011-Ohio-1133, ¶ 55. Evidence that

Barrow had engaged in an identical kidnapping scheme six to seven months earlier

tended to disprove Barrow’s assertion that the kidnapping was a ruse. Thus, the trial

court did not err by admitting the evidence.

       {¶14}     While Barrow claims that the trial court’s limiting instruction to the jury

was not effective to correct any prejudice stemming from Sergeant Grant’s testimony, he

points to no specific instance of prejudice.       The jury is presumed to follow the



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instructions, including curative instructions, given to it by the trial court judge. State v.

Loza, 71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994). The trial court, erred, however, in

permitting Sergeant Grant to testify about the second kidnapping investigation where

Barrow had been a suspect, but had not been charged with a crime. But error, if any,

was harmless on this record. The state’s evidence against Barrow was overwhelming.

We, therefore, overrule the first assignment of error.

                   Motion for New Trial - Alleged Brady Violation

       {¶15} In his second assignment of error, Barrow argues that “the trial court

erred [by] denying his motion for a mistrial as a result of the state’s Brady violation

— its failure to notify Barrow before trial of the existence of a second interview of

George.”

       {¶16} The grant or denial of a mistrial is within the sound discretion of the

trial court. State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). A mistrial

is warranted only when a fair trial is no longer possible. State v. Treesh, 90 Ohio

St.3d 460, 480, 739 N.E.2d 749 (2001).

       {¶17} Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963), the state has a duty to disclose to a criminal accused evidence material to the

accused’s guilt or innocence under the fair-trial guarantee of the Due Process Clause

of the Fourteenth Amendment to the United States Constitution. State v. Hunter, 1st

Dist. Hamilton No. C-090569, 2012-Ohio-2859, ¶ 12. Undisclosed evidence is

“material” only if there is a “reasonable probability” that its disclosure would have

changed the outcome of the trial. United States v. Bagley, 473 U.S. 667, 682, 105

S.Ct. 3375, 87 L.Ed.2d 481 (1985). The probability-determination entails an inquiry

not into whether a trial with the undisclosed evidence would have yielded a different

verdict, but whether the evidence “considered collectively” could reasonably be taken



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to put the whole case in such a different light as to undermine confidence in the

verdict.” Kyles v. Whitley, 514 U.S. 419, 434-436, 115 S.Ct. 1555, 131 L.Ed.2d 490

(1995). The Brady requirements apply to both exculpatory evidence and to evidence

used to impeach a witness’s credibility. Bagley at 676; State v. Cook, 1st Dist.

Hamilton No. C-140118, 2014-Ohio-4900, ¶ 11.

       {¶18} During codefendant Buck’s cross-examination of Detective Hilbert,

Buck’s counsel asked Detective Hilbert if he was surprised that George had testified

at trial that he had met Barrow to sell him marijuana when he had not mentioned the

marijuana sale during his February 7, 2014 interview. Detective Hilbert testified that

he was not surprised, because he had learned of the marijuana sale when he had

interviewed George ten-15 days after the February 7, 2014 interview. Detective

Hilbert further testified that he had noticed that Barrow’s phone records had some

calls and text messages between Barrow and George prior to the kidnapping.

Detective Hilbert had then met with George to ask him about these contacts. George

had then told him that he had met with Barrow to sell him marijuana. Hilbert

further testified that George’s second statement had been consistent with his trial

testimony.

       {¶19} At that point, Barrow’s counsel interrupted and asked to approach the

bench. Barrow’s counsel told the court that he was unaware Detective Hilbert had

interviewed George a second time, or if he had been made aware, he did not recall it.

He told the court he had spoken with Detective Hilbert and he could not remember a

subsequent interview. Barrow’s counsel expressed concern that the interview may

have changed his approach.

       {¶20} The assistant prosecuting attorney stated that he had given this

information to Buck’s and Barrow’s counsel, but that they had been represented by



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several attorneys. The assistant prosecutor stated that his case file was voluminous

and he could not recall if he had specifically relayed this information to Buck’s or

Barrow’s current counsel, but he had asked Detective Hilbert to give them as much

information as they needed.

       {¶21} The trial court stated that there was no evidence that the prosecutor

had withheld this information from defense counsel.        It suggested that Buck’s

counsel finish his cross-examination of Detective Hilbert. The court would then give

Buck’s and Barrow’s counsel an opportunity to talk to Detective Hilbert outside the

presence of the jury to discover if there was any new material related to Detective

Hilbert’s second interview of George.

       {¶22}   Buck’s counsel stated that he had no issue with Detective Hilbert or

the prosecuting attorney. Instead, his issue was with George who had testified that

he had told Detective Hilbert in his February 7, 2014 interview that he had met

Barrow to sell him marijuana, when this information was not in his original

statement. Buck’s counsel told the court that he had covered this inconsistency

during his cross-examination of Detective Hilbert.

       {¶23} The next day, following defense counsels’ off-the-record discussion

with Detective Hilbert, the trial court stated on the record that Detective Hilbert’s

second interview with George had covered only the discrepancies between George’s

February 7, 2014 statement and his and Barrow’s phone records and had not

addressed any additional information. George had acknowledged during this second

interview that he had met Barrow to sell him marijuana.

       {¶24} Buck’s counsel resumed his cross-examination of Detective Hilbert.

Barrow’s counsel then cross-examined Detective Hilbert extensively about his second

interview with George, the inconsistencies between George’s first and second



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statements, and his failure to testify at trial consistently with his first statement.

Barrow’s counsel additionally questioned Detective Hilbert about his disclosure of

this second statement to counsel, and Hilbert’s failure to mention the second

interview in his testimony at the hearing on codefendant Buck’s motion to suppress.

       {¶25} At the close of the state’s case, Barrow’s counsel moved for a mistrial

on the basis that he had believed that the police had interviewed George only one

time, and that Barrow had been prejudiced as a result of the state’s failure to turn

over the information to him about a second interview. The trial court denied the

motion for a mistrial on the basis that it had given defense counsel an opportunity to

question Detective Hilbert about the content of the second interview and to

extensively cross-examine Detective Hilbert about his disclosure of the statement

and its impact on George’s trial testimony.

       {¶26} Here, there is no reasonable probability that the outcome of the trial

would have been different had George’s second statement been disclosed to Barrow’s

counsel prior to trial. While George’s second statement differed from his original

statement to police, it was consistent with his trial testimony. At trial, Barrow’s counsel

attacked George’s credibility by pointing out that in his statement to police he had failed

to mention Barrow had contacted him to purchase marijuana. While defense counsel

may have been able to further attack George’s credibility by pointing out the difference

between his first and second statements, any alleged failure by the state to provide

Barrow’s counsel this evidence was not material. Barrow’s counsel additionally had the

opportunity to question Detective Hilbert about the content of the second interview

and to extensively cross-examine Detective Hilbert about his disclosure of George’s

second statement and its impact on George’s trial testimony.




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       {¶27} The state, moreover, had other evidence besides George’s testimony that

directly linked Barrow to the kidnapping. The state presented Rucker’s testimony as the

“babysitter,” Detective Hilbert’s testimony about the phone calls he overhead, and the

physical evidence, which included the telephone records, that all supported the

kidnapping charge. See Harris v. Lafler, 553 F.3d 1028, 1034 (6th Cir.2009) (noting

that “considerable authority * * * indicates that a defendant suffers prejudice from the

withholding of favorable impeachment evidence when the prosecution’s case hinges on

the testimony of one witness”). As a result, the trial court did not abuse its discretion by

overruling his motion for mistrial. We, therefore, overrule Barrow’s second

assignment of error.

                 Sufficiency and Manifest Weight of the Evidence

       {¶28} In his third and fourth assignments of error, Barrow argues his

kidnapping conviction was based on insufficient evidence and was against the

manifest weight of the evidence.

       {¶29} To reverse a conviction for insufficient evidence, the reviewing court

must be persuaded, after viewing the evidence in the light most favorable to the state,

that no rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). To reverse a conviction as against the manifest weight of the

evidence, the reviewing court must weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and conclude that in resolving conflicts in

the evidence, the trier of fact clearly lost its way and created a manifest miscarriage

of justice. Id. at 387.

       {¶30} The state argued that Barrow was guilty as either a principal in or a

complicitor to George’s kidnapping. Complicity is where a person “acting with the



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kind of culpability required for the commission of an offense * * * aid[s] or abets

another in committing the offense.” R.C. 2923.03(A)(2). To support a conviction for

complicity by aiding and abetting, the state must show that the defendant assisted,

encouraged, cooperated with, advised, or incited the principal in the commission of

the crime and that the defendant shared in the criminal intent of the principal. State

v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. Aiding and abetting

can be inferred by presence, companionship, and conduct before and after the

offense is committed. Id. at 245.

       {¶31} Barrow was convicted of kidnapping pursuant to R.C. 2905.01(A)(1),

which provides that “[n]o person, by force, threat, or deception * * * shall remove

another from the place where the other person is found or restrain the liberty of the

other person” for the purpose of holding him “for ransom or as a shield or hostage.”

Barrow contends the state failed to present any evidence that he had “purposely by

force, threat or deception, removed” George. We disagree.

       {¶32} George testified that Barrow had contacted him the day of the

kidnapping under the pretense of purchasing marijuana from him and they had

arranged a meeting. After some coaxing from Barrow, George got into Barrow’s van

to sell Barrow marijuana. Barrow and another man immediately began assaulting

George from behind. As George struggled to escape, Barrow threatened to shoot

him. Afraid for his life, George stopped struggling. The two men then bound George

with duct tape and rope, wiped his neck and clothing with bleach, and drove away.

George was then held for ransom until the following afternoon when he was able to

escape.

       {¶33} Telephone records and testimony from Kellam, Detective Hilbert, and

Rucker established that shortly thereafter Buck and other unidentified men called



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Kellam demanding money and threatening to kill George if Kellam did not pay.

Ransom drops were attempted at two separate locations. Telephone records and text

messages detailed communications between Barrow, Buck, Watson, and Rucker.

Rucker testified that he and Watson had “babysat” George, that George had been

scared for his life, and that George had kept asking Rucker if he was going to let him

go. When viewed in the light most favorable to the prosecution, this evidence could

have convinced a rational trier of fact that Barrow had acted as a principal or in

concert with codefendants Buck, Watson, and Rucker to purposely by force, threat,

or deception remove George from the place where he was found or restrain him of

his liberty for the purpose of holding him for ransom. See Buck, Hamilton App. No.

C-160320, 2017-Ohio-8242, at ¶ 28-49; Thompkins, 78 Ohio St.3d at 386, 678

N.E.2d 541.

       {¶34} Barrow next argues that his conviction is against the manifest weight

of the evidence. He argues the jury lost its way in concluding that he had kidnapped

George for ransom. While Barrow testified at trial that he and George had devised a

plan with Watson and others to extort $100,000 from Kellam and that George was to

receive $40,000 of the ransom money, the jury, as the trier of fact, was in the best

position to judge the credibility of the witnesses. See State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; State v. Antill, 176 Ohio

St. 61, 67, 197 N.E.2d 548 (1964). After reviewing the record, we cannot conclude the

jury lost its way and created a manifest miscarriage of justice by choosing to accord

more weight to the testimony of the state’s witnesses than to Barrow’s and convicting

Barrow of kidnapping George. See Thompkins at 386. We, therefore, overrule the

third and fourth assignments of error.




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                                     Conflict of Interest

       {¶35} In his fifth assignment of error, Barrow contends “the trial court erred

by failing to hold a hearing as a result of news of a possible conflict of interest, and

trial counsel was ineffective in failing to object.”

       {¶36} A criminal defendant’s Sixth Amendment right to the effective

assistance of counsel encompasses both the right to competent representation and

the right to representation that is free from conflicts of interest. Wood v. Georgia,

450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Glasser v. United States,

315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Conflicts of interest can arise from

defense counsel’s joint or successive representation. Jalowiec v. Bradshaw, 657

F.3d 293, 315 (6th Cir.2011). “Successive representation occurs where defense

counsel has previously represented a co-defendant or trial witness.” Moss v. United

States, 323 F.3d 445, 459 (6th Cir.2003).

       {¶37} A defendant who claims he was denied the right to conflict-free

counsel must demonstrate that “an actual conflict of interest” adversely affected his

lawyer’s performance.      Wood at 273; Moss at 459-460.        “A possible conflict is

insufficient.” State v. Getsy, 84 Ohio St.3d 180, 187, 702 N.E.2d 866 (1998).

       {¶38} An “actual conflict of interest,” for purposes of the Sixth Amendment,

is “a conflict of interest that adversely affects counsel’s performance.” Mickens v.

Taylor, 535 U.S. 162, 172, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), fn. 5. To prove an

“actual conflict of interest,” the defendant must show that his counsel “actively

represented conflicting interests,” and that the conflict “actually affected the

adequacy of his representation.” Id., quoting Cuyler v. Sullivan, 446 U.S. 335, 349-

350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).




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       {¶39} Before closing arguments on the tenth day of trial, Buck’s counsel

informed the court that Buck had just told him that Barrow’s counsel had

represented him in 2007. Barrow’s counsel told the court that he had researched the

2007 matter and found another attorney’s name listed. Given his heavy case load,

however, he could not specifically recall if he had represented Buck.

       {¶40} The trial court expressed its skepticism of any conflict by stating that

the trial was in its second week, Barrow’s counsel had been representing him for

some time, and there had been earlier court settings where Buck could have raised

the claimed conflict. The court pointed out that Barrow had testified that Buck had

nothing to do with the charged offenses, and that Barrow’s counsel had done nothing

to try to incriminate Buck. Buck responded by stating that he had not realized earlier

that there was a potential conflict. Barrow did not object or express any concern.

       {¶41} Barrow argues on appeal that the trial court erred by failing to inquire

further into this alleged conflict of interest. He argues that once the trial court

learned that Barrow’s counsel had represented Buck in the prior unrelated criminal

matter, the court should have questioned Barrow’s counsel about whether he had

given Barrow advice or had questioned certain witnesses in order to favor Buck

rather than to assist Barrow. Barrow further asserts that because his testimony

exonerated Buck, the trial court was required to investigate whether his counsel had

urged him to testify because this advice would have reflected an actual conflict of

interest.

       {¶42} Prior to Barrow’s testimony, Barrow’s counsel had informed the trial

court outside of the presence of the jury that Barrow had decided to testify against

counsel’s advice. Absent evidence that Barrow’s counsel’s basic strategic decisions

were influenced by his representation of Buck nine years earlier in an unrelated



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matter, the trial court had no duty to make further inquiries into the existence of a

conflict of interest. State v. Tucker, 1st Dist. Hamilton No. C-020821, 2003-Ohio-

6056, ¶ 30; State v. Dillon, 74 Ohio St.3d 166, 169, 657 N.E.2d 273 (1995) (holding

the trial court had no duty to inquire into a conflict of interest where no possibility of

conflict existed given the facts known to the trial court). Nor can we conclude that

Barrow’s counsel was ineffective for failing to object or make further argument

relating to the alleged conflict of interest. We, therefore, overrule Barrow’s fifth

assignment of error and affirm the judgment of the trial court.

                                                                    Judgment affirmed.

MYERS, P.J., and MILLER, J., concur.


Please note:
       The court has recorded its own entry this date.




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