[Cite as State v. Shaw, 2016-Ohio-7699.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-15-1165

        Appellee                                  Trial Court No. CR0201402968

v.

Cletissia Shaw                                    DECISION AND JUDGMENT

        Appellant                                 Decided: November 10, 2016

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Rebecca A. Facey, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                           *****

        JENSEN, P.J.

        {¶ 1} Following a jury trial, defendant-appellant, Cletissia Shaw, appeals the

May 18, 2015 judgment of the Lucas County Court of Common Pleas, convicting her of

obstructing justice. For the reasons that follow, we affirm.
                                     A. Background

       {¶ 2} On September 25, 2014, Dennis Davis was charged in a 24-count indictment

with rape, unlawful sexual conduct with a minor, and the sexual battery of numerous

children. A warrant was issued for his arrest. Because of the nature of his crimes, Davis’

apprehension quickly became a priority of the Northwest Ohio Violent Fugitive Task

Force. It gathered information to locate Davis and learned that he was engaged to

Cletissia Shaw.

       {¶ 3} Two deputy U.S. marshals went to Shaw’s home to speak with her. They

knocked on her door and after about five minutes, she answered. Shaw confirmed that

Davis was her fiancé and that she was aware of the charges against him, but she claimed

she had not seen or heard from him since learning that the indictment and arrest warrant

had been issued. The deputy marshals asked if they could look around her house, and she

consented. They did not find Davis. Before leaving, they warned Shaw that if she was

being untruthful or did anything to inhibit their investigation, she would be charged with

obstructing justice. She responded “well, you got to do what you got to do.”

       {¶ 4} On December 9, 2014, the full task force—consisting of deputy marshals,

Lucas County deputy sheriffs, officers from the Department of Homeland Security, and

Toledo police officers—went to Shaw’s home. Again, they knocked, and again it took

approximately five minutes for her to answer. She asked what they were doing there and

insisted that Davis was not there. She consented to another search of her home.




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       {¶ 5} With the full task team present, a more thorough search was conducted. The

task force team split up and searched the entire house. Two members of the team

searched a bedroom filled with trash bags, piles of clothing, and storage containers. They

came across a blue storage container with a box on top of it. One of the task force

members set aside the box and pried the lid off the container. He found Davis inside,

naked, holding a gun to his head. The situation became chaotic, but Davis ultimately was

apprehended. Shaw was charged with obstructing justice, a violation of R.C.

2921.32(A)(1) and (C)(4).

       {¶ 6} Following a jury trial, Shaw was convicted. She was sentenced to three

years’ community control. She appealed and assigns the following errors for our review:

              I. Appellant received ineffective assistance of counsel in violation

       of her rights under the Sixth and Fourteenth Amendments to the United

       States Constitution and Article I, Section 10 of the Constitution of the State

       of Ohio.

              II. The jury’s verdict was against the manifest weight of the

       evidence introduced by the state at trial.

                                   B. Law and Analysis

       {¶ 7} In her first assignment of error, Shaw argues that her trial counsel was

ineffective because he failed to object to the state’s opening statement and to various

witnesses’ testimony about the details of the charges against Davis. In her second




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assignment of error, she contends that the jury’s verdict was against the manifest weight

of the evidence. We address Shaw’s assignments of error out of order.

                           1. Manifest Weight of the Evidence

       {¶ 8} In her second assignment of error, Shaw argues that there was no credible

evidence that she assisted Davis in hiding in her home or that she obstructed his

apprehension. She claims that the jury did not consider all of the evidence. In support of

this argument, she points out that she consented to two separate searches of her home.

       {¶ 9} When reviewing a claim that a verdict is against the manifest weight of the

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

consider the credibility of witnesses, and determine whether the jury clearly lost its way

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We do not view the evidence in a light

most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the

factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas

No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 388. Reversal on manifest

weight grounds is reserved for “the exceptional case in which the evidence weighs

heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 10} Although under a manifest-weight standard we consider the credibility of

witnesses, we must nonetheless extend special deference to the jury’s credibility




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determinations given that it is the jury who has the benefit of seeing the witnesses testify,

observing their facial expressions and body language, hearing their voice inflections, and

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.

Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.

       {¶ 11} R.C. 2921.32(A)(1) provides that “No person, with purpose to hinder the

discovery, apprehension, prosecution, conviction, or punishment of another for crime

* * *, with purpose to hinder the discovery, apprehension, [or] prosecution, * * * shall

* * * [h]arbor or conceal the other person * * *.” R.C. 2921.32(C)(4) further provides

that “if the crime committed by the person aided is aggravated murder, murder, or a

felony of the first or second degree * * * and if the offender knows or has reason to

believe that the crime committed by the person aided is one of those offenses * * *,

obstructing justice is a felony of the third degree.”

       {¶ 12} Here, Davis was charged with rape, a first-degree felony, and Shaw was

aware of this. She falsely denied that Davis was in her home, and Davis was found

hiding in a storage container that had a lid that snapped shut. The lid did not have a

mechanism to close it from the inside, and a box was stacked on top of it. Deportation

Officer Michael Dietz described:

              And when I tried to pull it the bin was snapped on so you couldn’t

       just pull it in the middle. * * * There was a small box also on top of the

       tote, so I had to knock the box off, but it was one of those totes where it

       kind of snaps on the ends, you know. And so I reached to the front with my




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       left hand, and as I was popping it up, pulling it back my way, Officer

       Korsog shouts out, he’s got a gun.

       {¶ 13} Sergeant Kevin Korsog, of the Toledo police department, confirmed this.

He testified that Officer Dietz “actually had to shift and then actually pull up to unseal it.

And, again, there was an item on top of it * * *.” He confirmed, “there wasn’t, like, a

handle underneath the lid that he could have popped it himself.”

       {¶ 14} While Davis and Shaw both denied that Shaw helped to conceal Davis in

the storage bin, Shaw confirmed that she and Davis were alone in the house. We find

that the jury had before it strong evidence that Shaw falsely denied that Davis was with

her and that Shaw helped Davis hide from law enforcement for the purpose of hindering

his apprehension. We, therefore, conclude that the jury’s verdict is supported by the

evidence, and we find Shaw’s second assignment of error not well-taken.

                           2. Ineffective Assistance of Counsel

       {¶ 15} In her first assignment of error, Shaw argues that trial counsel was

ineffective because he failed to object to the state’s opening statement and to portions of

the witnesses’ testimony describing the nature of the offenses committed by Davis.

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

appellant must show that counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial court cannot be relied on as having produced a just

result. State v. Shuttlesworth, 104 Ohio App.3d 281, 287, 661 N.E.2d 817 (7th

Dist.1995). To establish ineffective assistance of counsel, an appellant must show




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“(1) deficient performance of counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability

that, but for counsel’s errors, the proceeding’s result would have been different.” State v.

Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v.

Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).

       {¶ 17} Properly licensed Ohio lawyers are presumed competent. State v. Banks,

9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. To establish ineffective

assistance of counsel, the defendant must show that counsel’s performance fell below an

objective standard of reasonableness and that the deficient performance prejudiced the

defendant so as to deprive him of a fair trial. Strickland at 688-692. As recognized in

Strickland, there are “countless ways to provide effective assistance in any given case.”

Id. at 689. “Judicial scrutiny of counsel’s performance must be highly deferential.” State

v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689.

       {¶ 18} Shaw explains that the state, in its opening statement, told the jury that

Davis had raped his biological daughter, the friends of his daughter, and the daughters of

his ex-girlfriends. It also informed the jury that the victims were between five and 14

years old, and that Davis was indicted on 24 counts. Shaw points out that before the state

began questioning its first witness, counsel approached the bench and argued that the

details of the underlying charges against Davis were not relevant and were prejudicial.




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The trial court agreed with him, but declined to rule on the objection until it heard

evidence. The state began its questioning and elicited from its witness, and from

subsequent witnesses, that Davis had been indicted on 24 counts of sexually-related

offenses. The indictment and judgment entry were admitted into evidence without

objection by defense counsel.    Shaw contends that the details of Davis’ crimes were not

relevant and were highly prejudicial. She insists that the trial court conveyed its

willingness to sustain objections to such evidence, but counsel failed to object.

       {¶ 19} “The failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel. To prevail on such a claim, a defendant must first show

that there was a substantial violation of any of defense counsel’s essential duties to his

client and, second, that he was materially prejudiced by counsel’s ineffectiveness.” State

v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988).

       {¶ 20} Here, while an objection may have been warranted during the state’s

opening statement, the jury was properly instructed that the opening statement is not

evidence. With respect to the witnesses testifying as to the number of counts contained in

the indictment and the failure to object to the admission into evidence of the indictment

and judgment entry, we find that any purported error did not materially prejudice Shaw or

affect the outcome of the trial given the strength of the state’s case against Shaw. As we

observed in the previous section, Davis was found in Shaw’s home hiding in a storage

container that could only be snapped shut from the outside and on which a box had been

placed. We find that it is not reasonably probable that the jury would have reached a




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different result if counsel had succeeded in preventing all mention of the circumstances

underlying the task force’s search for Davis.

       {¶ 21} We find Shaw’s first assignment of error not well-taken.

                                     C. Conclusion

       {¶ 22} We find Shaw’s two assignments of error not well-taken and affirm the

May 18, 2015 judgment of the Lucas County Court of Common Pleas. Shaw is ordered

to pay the costs of this appeal under App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Stephen A. Yarbrough, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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