[Cite as State v. Ralston, 2017-Ohio-7057.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             HIGHLAND COUNTY

STATE OF OHIO,                 :
                               :    Case No. 16CA9
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
JOHN RALSTON,                  :
                               :
    Defendant-Appellant.       :    Released: 07/25/17
_____________________________________________________________
                         APPEARANCES:

Timothy Young, Ohio State Public Defender, and Patrick T. Clark, Assistant
Ohio State Public Defender, Columbus, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} John Ralston appeals the judgment entry of conviction entered

October 19, 2015 in the Highland County Court of Common Pleas. A

Highland County jury returned a guilty verdict on five counts: possession of

heroin, possession of methamphetamine, and three counts of receiving stolen

property. On appeal, Ralston asserts: (1) the trial court erred in overruling

Ralston’s motion to suppress the first of four search warrants; (2) he was

rendered the ineffective assistance of counsel as to his motion to suppress;

and (3) the prosecutor’s statements rose to the level of misconduct. Upon
Highland App. No. 16CA9                                                       2

review, we find no merit to Ralston’s arguments. Accordingly, we overrule

his assignments of error and affirm the judgment of the trial court.

                                   FACTS

      {¶2} On July 7, 2015, John Ralston was indicted by the Highland

County Grand Jury for: (1) possession of heroin, R.C. 2925.11, a felony of

the first degree; (2) aggravated possession of methamphetamine, R.C.

2925.11, a felony of the fifth degree; (3) receiving stolen property, R.C.

2913.51 a felony of the fifth degree; (4) receiving stolen property, R.C.

2913.51, a felony of the fifth degree; and, (5) receiving stolen property, R.C.

2913. 51, a felony of the fourth degree. It was also alleged Appellant’s

vehicle was property subject to forfeiture specification, R.C. 2941.1417.

The indictment arose after officers of the Greenfield Police Department

executed warrants on or about April 21, 2015 at Appellant’s home and

business in Greenfield, Ohio. The officers located property reported stolen

from three victims: James Stuckey, Rick Priest, and Weastec, a plant located

in Highland County.

      {¶3} At arraignment, Appellant entered pleas of not guilty. His

counsel subsequently filed a motion to suppress evidence directed to the

sufficiency of the first three search warrants. At the suppression hearing, the

parties stipulated that if the first warrant was found to be based upon
Highland App. No. 16CA9                                                      3

sufficient probable cause, then the second two warrants would be deemed to

also be valid. The trial court ultimately overruled Appellant’s motion to

suppress.

      {¶4} On October 15, 2015, Appellant proceeded to a jury trial. The

State of Ohio called three witnesses from the Ohio Bureau of Criminal

Identification and Investigation (BCI); James Stuckey and Rick Priest; Doug

Ernst on behalf of Weastec; and officers of the Greenfield Police

Department and Highland County Sheriff’s Department. Appellant called

Richard Wright and Ronnie Wright, his associates, Alicia Ralston and

Jonathon Ralston, Appellant’s two adult children, and one law enforcement

officer. At the conclusion of trial, Appellant was found guilty on all counts.

Appellant was sentenced to a ten-year prison sentence. He was also ordered

to pay a fine, given a license suspension, and forfeited his pickup truck used

in the commission of the crimes.

      {¶5} On March 9, 2016, Appellant filed a motion for leave to file a

delayed appeal, which was subsequently granted by this Court. Where

relevant, additional facts will be set forth below.

                        ASSIGNMENTS OF ERROR

      “I. THE TRIAL COURT ERRED WHEN IT OVERRULED
      MR. RALSTON’S MOTION TO SUPPRESS AS THE
      AFFIDAVIT IN SUPPORT OF THE FIRST SEARCH
Highland App. No. 16CA9                                                           4

      WARRANT DID NOT PROVIDE SUFFICIENT PROBABLE
      CAUSE.

      II. MR. RALSTON WAS DENIED THE EFFECTIVE
      ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL
      FAILED TO CHALLENGE THE DEFICIENCIES IN THE
      SECOND SEARCH WARRANT WHEN IT CONTAINED
      THE SAME DEFICIENCIES CHALLENGED BY TRIAL
      COUNSEL IN THE FIRST SEARCH WARRANT.

      III. MR. RALSTON’S RIGHT TO A FAIR TRIAL WAS
      VIOLATED BY REPEATED INSTANCES OF
      PROSECUTORIAL MISCONDUCT.”

                         ASSIGNMENT OF ERROR ONE

                           A. STANDARD OF REVIEW

      {¶6} “The review of a motion to suppress is a mixed question of law

and fact.” State v. Kerns, 4th Dist. Highland No. 15CA6, 2016-Ohio-63,

¶15, quoting State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46

N.E.3d 638, ¶ 32, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71. Because the trial court acts as the trier of fact in

suppression hearings and is in the best position to resolve factual issues and

evaluate the credibility of witnesses, an appellate court must accept the trial

court's findings of fact if they are supported by competent, credible

evidence. Burnside at ¶ 8. Accepting these facts as true, we must then

“independently determine, without deference to the conclusion of the trial

court, whether the facts satisfy the applicable legal standard.” State v.
Highland App. No. 16CA9                                                       5

Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, 975 N.E.2d 965, ¶ 8, citing

Burnside at ¶ 8; State v. Crocker, 4th Dist. Scioto No. 14CA3640, 2015-

Ohio-2528, ¶ 60.

                            B. LEGAL ANALYSIS

      {¶7} Between April 21 and April 23, 2015, the Greenfield County

Court judge issued four search warrants. Appellant asserts the facts

contained in the affidavit in support of the first search warrant are

insufficient to support a finding or probable cause necessary to issue the

warrant. The first, issued on April 21, 2015 at 12:05 p.m. upon application

by Patrolman Jennifer Lowe of the Greenfield Police Department,

authorized the search of Appellant’s residence at 760 Jefferson Street in

Greenfield for:

             1. Copper (sic) 1-29 (sic) pipe approximately 20 ft
                length.
             2. Coated copper auto wire .47 mm diameter
             3. Copper wire .045 mm diameter
             4. Large 3-strand copper 480V cable electric wire.
             5. Tennis shoes.
             6. Any other items previously reported stolen to law
                enforcement.

      {¶8} Patrolman Lowe executed the first search warrant, seizing:

             1.   7 spoils of .47 mm copper wire.
             2.   Large 3-strand copper 480V cable electric wire.
             3.   ½ inch copper piping.
             4.   Miscellaneous rolls of wire.
             5.   Bolt cutters, wire strippers, and wire cutters.
Highland App. No. 16CA9                                                         6

      {¶9} “The Fourth Amendment to the United States Constitution and

the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches

and seizures.” State v. Kerns, 4th Dist. Highland No. 15CA6, 2016-Ohio-63,

at ¶ 16, quoting State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981

N.E.2d 787, ¶ 15. This constitutional guarantee is protected by the

exclusionary rule, which mandates exclusion from trial of the evidence

obtained from the unreasonable search and seizure. Id.

      {¶10} “The Supreme Court of the United States has provided that in

determining whether a search warrant was issued upon a proper showing of

probable cause, reviewing courts must examine the totality of the

circumstances.” State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37

N.E.3d 123, ¶ 13, citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317,

(1983). Kerns, supra, at ¶ 17. To determine whether the affidavit submitted

in support of a search warrant established probable cause, a magistrate must

make a practical, commonsense decision based upon all the circumstances

set forth in the affidavit, including the “veracity” and “basis of knowledge”

of persons supplying hearsay information, that there is a fair probability that

contraband or evidence of a crime will be found in a particular place. Kerns,

supra, at ¶ 18. See State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640

(1989), paragraph one of the syllabus, quoting Gates at 238-239.
Highland App. No. 16CA9                                                           7

      {¶11} A magistrate must make a practical determination, upon all

circumstances set forth in the warrant, whether there is a fair probability that

evidence of a crime will be found in a particular place. State v. Vaughters,

4th Dist. Scioto No. 2086, 1993 WL 63464, (Mar. 2, 1993), citing Gates,

supra; United States v. Berisford (C.A.10, 1984), 750 F.2d 57. To establish

probable cause to search a residence, the facts must be sufficient to justify a

conclusion that the property which is the object of the search is probably on

the premises to be searched at the time the warrant is issued. United States v.

Hendricks (C.A.9, 1984), 743 F.2d 653; Travisano, supra, citing United

States v. Harris, 403 U.S. 573, 91 S.Ct. 2075 (1971). In United States v.

Lucarz (C.A.9, 1970), 430 F.2d 1051, 1055, the court wrote:

      “To establish the nexus between the place and objects sought,
      the court may look to the type of crime, the nature of the
      missing items, the extent of the suspect's opportunity for
      concealment, and normal inferences as to where a criminal
      would be likely to hide stolen property.” See also Hendricks,
      supra; United States v. Freeman (C.A.5, 1982), 685 F.2d 942.

      {¶12} The duty of a reviewing court is more limited–neither the trial

court nor an appellate court should substitute its judgment for that of the

magistrate by conducting a de novo determination. Kerns, supra, at ¶ 19;

George at paragraph two of the syllabus. The duty of the reviewing court is

simply to ensure that the magistrate had a substantial basis for concluding

that probable cause existed, after according great deference to the
Highland App. No. 16CA9                                                                                      8

magistrate's determination and resolving doubtful or marginal cases in favor

of upholding the warrant. Id., following Gates; see also Jones at ¶ 13-14.

         {¶13} In this case, we must review Patrolman Lowe’s affidavit to

determine whether the magistrate had “a substantial basis to conclude there

was a fair probability the items mentioned in the affidavit would be found at

Appellant’s residence. The affidavit provides that Patrolman Lowe took a

report that on April 21, 2015, Weastec, a business located in Greenfield, had

been broken into after the alarm system and electrical supply to the building

were disabled.

         {¶14} The affidavit also contained information that copper piping,

spools of copper “moto wire,” and a large spoil of 480V cable electric wire

were removed from the business. Shoe prints inside and outside Weastec

resembled a tennis shoe type print. After taking the report and attempting to

check local scrap yards without success, Lowe checked a residence in town

where previous information had been received of Appellant dealing in scrap

metal items and stolen goods.1

         {¶15} In particular, Appellant argues:

         1. Patrolman Lowe’s affidavit in support of the first search
         warrant indicated that “previous information had been
         received” that Appellant dealt in stolen goods. Since the trial
1
  In overruling the motion to suppress, the trial court stated: “The Court finds that the information regarding
the Defendant dealing in stolen goods was not supported by any evidence and therefore considers it to be
irrelevant in the determination of probable cause.”
Highland App. No. 16CA9                                                     9

      court did not consider this information, the court was left to
      consider whether the observation of copper pipes and 480V
      cable electric wire located outside of a scrapping business
      constituted sufficient probable cause.

      2. Patrolman Lowe’s affidavit also stated the items in the bed of
      Appellant’s truck appeared “to be in connection with items
      damaged or missing from Weastec.” The affidavit, however,
      did not identify the items seen in the back of his truck and only
      stated what items had been stolen from Weastec. Patrolman
      Lowe did not state that the items matched until the fourth
      search warrant, issued two days later.

      3. Nothing in Patrolman Lowe’s affidavit showed the basis of
      her knowledge that unnamed and unidentified items seen in the
      bed of Appellant’s truck by Lowe, from her vantage point in the
      alley behind Appellant’s residence, “appear to be in connection
      with” the stolen items from Weastec.

      4. Appellant concludes that given the trial court’s finding that it
      would not have issued a warrant without additional information
      from Patrolman Lowe demonstrates that a substantial basis for
      probable cause had not been established. Without identifying
      the items in the bed of Appellant’s truck and their connection to
      Weastec, or information showing that the wire and copper
      outside Appellant’s residence were the wire and copper taken
      from Weastec or in any way related to criminal activity,
      sufficient probable cause to grant the first search warrant did
      not exist.

      {¶16} In response, the Appellee argues that Patrolman Lowe

observed specific property reported stolen from Weastec on Appellant’s

property, copper pipes and 480V cable electric wire. Lowe took photos of

the items. The basis of knowledge was from an officer who actually
Highland App. No. 16CA9                                                                                10

observed suspected stolen property at Appellant’s property only hours after

the break-in at Weastec.

        {¶17} In our own district in Vaughters, supra, the appellant was

convicted of receiving stolen property. On appeal, he challenged the denial

of his motion to suppress, arguing the facts in the affidavit were insufficient

to support a finding of probable cause necessary to issue the warrant. Facts

revealed that in November 1991, a Scioto County Sheriff’s Deputy executed

a search warrant authorized by a judge of the Portsmouth Municipal Court at

Vaughters’ residence, also in the same location as his pest control business.

The warrant authorized the search for two specific chemicals used in making

pesticides.2 Upon execution of the warrant, the deputy seized several drums

of various chemicals and firearms.

        {¶18} Vaughters contended that the affidavit did not include specific

information as to the alleged dates of sale. Vaughters argued the absence of

the information militated against a finding of probable cause that the stolen

chemicals would be on the premises. This court did not agree. We found

the information in the affidavit sufficiently recent to allow the magistrate to

reasonably believe the chemicals were located on the premises described in

the search warrant at the time of the execution of the warrant.

2
 It was alleged that Vaughters enlisted another person to steal chemicals from his workplace and then to
sell them to Vaughters multiple times and at multiple locations during a six-month period.
Highland App. No. 16CA9                                                       11

      {¶19} Vaughters also contended the affidavit did not include any

factual observations that supported the belief that the chemicals could be

found at his residence. Vaughters noted that because the alleged sales of the

chemicals occurred in parking lots, neither the informant nor the

investigating officers had information regarding the location of the

chemicals. Again, we disagreed.

      {¶20} In Vaughters, we found the information listed in the affidavit

was sufficient to permit the inference concerning the probable location of the

chemicals. The informant sold large quantities of the hazardous chemicals

to Vaughters, apparently for use in Appellant's pest control business. The

issuing magistrate could have reasonably inferred the chemicals were

located at Appellant's place of business (which also served as Appellant's

residence). After our review of the affidavit, we concluded, after affording

the appropriate deference to the determination of the issuing magistrate and

to the court below, there was a “substantial basis” for the municipal court

judge’s conclusion that there was a “fair probability” the stolen chemicals

might be stored at appellant's business.

      {¶21} Upon review of the foregoing principles, reviewing the totality

of the circumstances, and reviewing the affidavit at issue herein, we find the

facts submitted in support of the affidavit were sufficient to establish
Highland App. No. 16CA9                                                        12

probable cause necessary to issue the first search warrant. Appellant

challenges the specificity of the description of the items seen in his truck

which “appeared to be in connection with” the items stolen from Weastec,

and the basis of Patrolman Lowe’s knowledge. In overruling Appellant’s

motion to suppress, the trial court stated in pertinent part:

      “Lowe stated that she and another officer drove down a public
      alley at the rear of the Defendant’s residence at 760 Jefferson
      St., Greenfield, Ohio and observed copper pipes and 480V
      cable electric wire lying in a small pile behind the residence.
      They took photos and observed other items in the back of the
      Defendant’s truck that appeared to be in connection with items
      damaged or missing from Weastec. There was no further
      description of these items.

      ***

      [T]he Court finds that the affidavit, however ‘bare bones’ in
      content, did contain the minimum information needed to
      support the issuance of the search warrant by the county court
      judge. The precise time of the break-in was not necessary.
      April 21st was a Tuesday. The search warrant was issued by
      the county court judge at 12:05 p.m., shortly after noon. It is
      reasonable to assume that Weastec employees found the break-
      in when they came to work that morning and contacted police.

      This Court is not concerned with whether officers got out of the
      car to view the items. The veracity of the affiant’s information
      is not in issue. The affidavit need not set forth that the items
      viewed were in fact stolen only whether there is a fair
      probability that they are not the items stolen. That is the
      purpose of obtaining the warrant, to establish whether they are
      the same items.

      The fact that the items seen in the truck matched those reported
      stolen the same day as the report of the break-in was sufficient
Highland App. No. 16CA9                                                      13

      given the nature of the items to support a determination of
      probable cause.”

      {¶22} Mindful of the instruction to give great deference to the issuing

magistrate’s determination, we find the items Patrolman Lowe saw in the

back of Appellant’s truck were identified with sufficient particularity. In its

ruling, the trial court noted Patrolman Lowe took photos of the items in the

back of Appellant’s truck. At trial, Patrolman Lowe testified about her

investigation of Appellant’s case, as follows:

      “Q: And on [April 21, 2015] did you have occasion to,
      uh…did you receive a report regarding Weastec?

      A:     Yes.

      Q:     And what was the basis of that report?

      A:    That Weastec had been broken into, uh, and items of
      copper, copper piping, copper wire, electric wire, had been
      removed.

      Q:     In response to that, what did you do?

      A:     Uh, responded there, took photographs of Weastec,
      photographs of items that had been left behind. Some of the
      items, when they talked about copper wire I wasn’t exactly
      familiar with, I wasn’t exactly for sure what I was looking for.
      So, some of the wire that had been left behind we took
      photographs of that so if we came across it I would be able to
      identify it.”

      {¶23} While we have the benefit of Appellant’s trial testimony after

the fact, it supports the conclusion that given the nature of the items, copper
Highland App. No. 16CA9                                                        14

pipe and cable electric wire, and Patrolman Lowe’s admitted unfamiliarity

with such items, her description of the items did not allow for greater

specificity and detail. We have reviewed, in particular, State’s exhibits 72,

73, and 76. State’s exhibit 72 depicts what appears to be a type of cable

intermixed with a type of wiring. It also depicts a spool of what appears to

be an orange-colored wire. Items 2, 3, and 4 in the first search warrant are

for three types of copper wire.

      {¶24} Exhibit 73 is the only photograph of any item in the back of

Appellant’s white pickup truck. It appears to be a type of wire in good and

readily usable condition. Exhibit 76 depicts what appears to be a type of

cable and copper pipes, which also appear to be in good and readily usable

condition. Item one listed in the first search warrant is copper pipe. Again,

given the nature of the items and our cursory review, we find Patrolman

Lowe’s description of the items was sufficiently reasonable under the

circumstances. The trial court remarked upon the close proximity of time

between the break-in at Weastec and the matching items in the back of

Appellant’s truck on the same day. And, the fact that some of the items

depicted in the photographs appear to be in good and readily usable

condition distinguishes them as possibly stolen goods as opposed to scrap

materials.
Highland App. No. 16CA9                                                           15

      {¶25} In State v. Overholt, 9th Dist. Medina No. 02CA0108-M,

2003-Ohio-3500, the appellate court reiterated the requirement that items to

be located and seized must be identified with sufficient particularity.

Overholt, supra, at ¶ 13. See State v. McGettrick, 40 Ohio App.3d 25, 29,

531 N.E.2d 755 (8th Dist.1988). The Overholt opinion noted that the

specificity required varies with the nature of the items to be seized. See id.

In determining whether a warrant is specific enough, the key inquiry is

whether the warrant could reasonably have described the items more

precisely. Id. at ¶ 14; State v. Benner, 40 Ohio St.3d 301, 307, 533 N.E.2d

701 (1988). It is important to note that the prohibition against general

warrants will not prevent the issuance of a broad or generic listing of items

to be seized if the circumstances do not allow for greater specificity and

detail. State v. Dalpiaz, 151 Ohio App.3d 257, 2002-Ohio-7346, 783 N.E.2d

926, (11th Dist.), ¶ 27, citing United States v. Wicks (C.A.10, 1993), 995

F.2d 964, 973.

      {¶26} In Overholt, which involved the defendant’s appeal of a

conviction for receiving stolen property, the warrant at issue authorized the

seizure of “All-Terrain vehicles, any parts thereof, contraband, any and all

all-terrain vehicle parts identified as stolen, [and] any and all vehicle parts

identified as stolen.” Thus, the appellate court found: “[T]he warrant limited
Highland App. No. 16CA9                                                                                    16

the search relative to the particular circumstances of the case and the nature

of the alleged stolen items. All the items identified were connected to the

investigation of the receipt of the stolen all-terrain vehicle (“ATV”) and

various parts associated with the vehicle. Therefore, the evidence was

sufficiently identified.” Id. at 15.

         {¶27} For the foregoing reasons, while we concur with the trial

court’s comment that the affidavit supporting the search warrant was “bare

bones,” we conclude that the issuing magistrate had a substantial basis for

concluding that probable cause existed.3 As such, we find no merit to

Appellant’s argument that the trial court erred by overruling his motion to

suppress.

         {¶28} In Appellee’s brief, it is argued that even if this court

concludes that no substantial basis exists for the issuing magistrate to find

that the affidavit established probable cause, the search must be upheld upon

the “good faith exception” to the exclusionary rule. In George, supra, at

paragraph three of the syllabus, the Supreme Court of Ohio stated:

         “The Fourth Amendment exclusionary rule should not be
         applied so as to bar the use in the prosecution's case-in-chief of
         evidence obtained by officers acting in objectively reasonable
         reliance on a search warrant issued by a detached and neutral
         magistrate but ultimately found to be unsupported by probable
3
  In the decision overruling Appellant’s motion, the trial court also commented that the affidavit was very
brief, could have been drafted in more detail, and that the trial court judge would have required the officer
to take more time to add details.
Highland App. No. 16CA9                                                                                       17

           cause. (United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405
           (1983) followed.)”4

           {¶29} In our view, if the first search warrant issued in this case was

found deficient, Patrolman Lowe acted in objectively reasonable, good-faith

reliance on it so that the exclusionary rule would not apply. See George, 45

Ohio St.3d 325, 544 N.E.2d 640, at paragraph three of the syllabus. See

Kerns, supra, at ¶ 26. There is no evidence that the issuing magistrate was

misled by information in an affidavit that the affiant knew was false, or

would have known was false except for reckless disregard of the truth.

Further, there is no evidence the issuing magistrate abandoned his judicial

role.

           {¶30} For the foregoing reasons, we find no merit to Appellant’s first

assignment of error. As such, it is hereby overruled.


4
    In Leon, the United States Supreme Court described reasonable reliance as follows:
           “Suppression therefore remains an appropriate remedy if the magistrate or judge in
           issuing a warrant was misled by information in an affidavit that the affiant knew was
           false or would have known was false except for his reckless disregard of the truth. Franks
           v. Delaware, 438 U.S. 154, (1978). The exception we recognize today will also not apply
           in cases where the issuing magistrate wholly abandoned his judicial role in the manner
           condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, (1979); in such circumstances,
           no reasonably well trained officer should rely on the warrant. Nor would an officer
           manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in
           indicia of probable cause as to render official belief in its existence entirely
           unreasonable.’ Brown v. Illinois, 422 U.S., at 610-611, (POWELL, J., concurring in part);
           see Illinois v. Gates, supra, at 263-264 (WHITE, J., concurring in judgment). Finally,
           depending on the circumstances of the particular case, a warrant may be so facially
           deficient-i.e., in failing to particularize the place to be searched or the things to be seized-
           that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v.
           Sheppard, at 988-991.”Leon, 468 U.S. at 923, 82 L.Ed.2d at 698-99, 104 S.Ct. at 3421.
           See also State v. Wilmoth, 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986), paragraph one of
           the syllabus.
Highland App. No. 16CA9                                                         18

                      ASSIGNMENT OF ERROR TWO

      {¶31} In this case, defense counsel stipulated that if the first search

warrant was found to be lawful, that the motion as to the other two search

warrants should be overruled as the probable cause in the affidavits in

support of those warrants was based upon observations of the officers while

on the premises executing the first warrant. Appellant argues there was no

strategic reason not to raise the fact that the second search warrant was also

not supported by sufficient probable cause and was overbroad. He contends

the trial court’s ruling and case law point to the deficiencies in the affidavit

submitted in support of the second search warrant. In Appellant’s view, a

successful challenge would have resulted in suppression of evidence from

the second search warrant, as well as evidence from the third and fourth

search warrants. As such, Appellant concludes that trial counsel was

deficient for failing to move to suppress evidence obtained as a result of the

second search warrant.

      {¶32} Appellee responds that Appellant cannot show that a second

motion would have been granted because the initial affidavit was found to

have sufficient probable cause. The subsequent affidavits, based upon the

first affidavit and with more detail added, would also be upheld by the trial

court. Appellee concludes that argument regarding the subsequent search
Highland App. No. 16CA9                                                       19

warrants would have been frivolous, wasteful of the court’s time, and

Appellant did not suffer ineffective assistance based on counsel’s decision

not to argue frivolous motions.

                       A. STANDARD OF REVIEW

      {¶33} Criminal defendants have a right to counsel, including a right

to the effective assistance from counsel. State v. Bailey, 4th Dist. Ross No.

2015-Ohio-5483, ¶ 8; McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct.

1441, (1970), fn.14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008-Ohio-

1366, ¶ 21; State v. Barfield, 4th Dist. Ross No. 13CA3387, 2015-Ohio-891,

¶ 8. To establish constitutionally ineffective assistance of counsel, a

criminal defendant must show (1) that his counsel's performance was

deficient and (2) that the deficient performance prejudiced the defense and

deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904

(2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “[A]

defendant bears the burden to show ineffectiveness by demonstrating that

counsel's errors were so serious that he or she failed to function as the

counsel guaranteed by the Sixth Amendment.” State v. Walters, 4th Dist.

Washington Nos. 13CA33 & 13CA36, 2014-Ohio-4966, ¶ 23, quoting State
Highland App. No. 16CA9                                                          20

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

State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).

      {¶34} “In order to show deficient performance, the defendant must

prove that counsel's performance fell below an objective level of reasonable

representation. To show prejudice, the defendant must show a reasonable

probability that, but for counsel's errors, the result of the proceeding would

have been different.” Bailey, supra, at ¶ 39, quoting State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure to

establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto

No. 06CA3116, 2008-Ohio-968, ¶ 14. “Furthermore, courts may not simply

assume the existence of prejudice, but must require that prejudice be

affirmatively demonstrated.” Walters at ¶ 24. “There are countless ways to

provide effective assistance in any given case; therefore, judicial scrutiny of

counsel's performance must be highly deferential.” Id. (Citations omitted).

                           B. LEGAL ANALYSIS

      {¶35} The trial court’s decision overruling the motion to suppress

observed that the parties stipulated that the ruling as to the second warrant

would depend upon the ruling on the first warrant, as the second warrant was

issued based upon observations of the affiant police officer after entry into

the house pursuant to the first warrant. The trial court further noted that if
Highland App. No. 16CA9                                                      21

the search warrant was found to be lawful, the motion as to the second

search warrant would also be overruled as the probable cause in the affidavit

in support of the second warrant was based upon the observations of the

officers.

       {¶36} During execution of the first warrant, Officer Shawn Shanks,

who testified at trial, observed a pair of pliers with brown residue on a white

household plate in Appellant’s basement. Officer Shanks believed the

residue could be heroin so he collected the plate and pliers as evidence.

Based upon the collection of the suspected heroin residue and observation of

other items, Patrolman Lowe applied for a second search warrant.

       {¶37} Patrolman Lowe’s affidavit, submitted in support of the second

search warrant, stated in pertinent part:

       “* * * [O]n April 21, 2015 at 12:25 p.m., I, along with other
       officers and deputy sheriffs, executed a search warrant at 760
       Jefferson Street to search for evidence and property taken from
       a breaking and entering at Weastec, Industrial Parkway,
       Greenfield overnight. Upon arriving and while securing
       everyone in the home, officers observed a substance I believe to
       be heroin and other drug paraphernalia in the basement. Also
       inside the home, garage, crawlspace, and inside parked vehicles
       outside, are piles of tools, equipment, household items, and
       other items that based on my training and experience and
       intelligence information are likely stolen from various places
       and construction sites.”

       {¶38} “A properly licensed attorney is presumed to execute his duties

in an ethical and competent manner.” State v. Taylor, 4th Dist. Washington
Highland App. No. 16CA9                                                        22

No. 07CA11, 2008-Ohio-482, ¶ 10; citing State v. Smith, 17 Ohio St.3d 98,

100, 477 N.E.2d 1128 (1985). As such, a defendant bears the burden to

show ineffectiveness by demonstrating that counsel's errors were so serious

that he or she failed to function as the counsel guaranteed by the Sixth

Amendment. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476

(1988). When considering whether trial counsel's representation amounts to

deficient performance, “a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance.” Canterbury, supra, at 67; Strickland, 466 U.S. at 689. Thus,

“the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial

strategy.” Id.

      {¶39} Trial counsel's “ ‘failure to file a suppression motion does not

constitute per se ineffective assistance of counsel.’ ” State v. Lawson, 4th

Dist. Pickaway No. 14CA20, 2015-Ohio-4394, ¶15, quoting Madrigal, 87

Ohio St.3d at 389, quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106

S.Ct. 2574, (1986); accord State v. Neyland, 139 Ohio St.3d 353, 2014-

Ohio-1914, 12 N.E.3d 1112, ¶ 126. “To establish ineffective assistance of

counsel for failure to file a motion to suppress, a defendant must prove that
Highland App. No. 16CA9                                                          23

there was a basis to suppress the evidence in question.” State v. Brown, 115

Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65, citing State v.

Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35.

“ ‘Where the record contains no evidence which would justify the filing of a

motion to suppress, the appellant has not met his burden of proving that his

attorney violated an essential duty by failing to file the motion.’ ” State v.

Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 208,

quoting State v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th

Dist.1980); accord Neyland at ¶ 126. “We must presume that trial counsel

was effective if counsel ‘could have reasonably decided that filing a

suppression motion would be a futile act, even if there is some evidence to

support a motion.’ ” State v. Novak, 4th Dist. Gallia No. 16CA4, 2017-Ohio-

455, ¶ 24, quoting State v. Siggers, 4th Dist. Ross No. 13CA3368, 2014-

Ohio-506, ¶ 10, quoting State v. Walters, 4th Dist. Scioto No. 12CA949,

2013-Ohio-772, ¶ 20.

      {¶40} Having found the affidavit supporting the first application for a

search warrant was supported by probable cause, we further find it was

reasonable trial strategy to make the stipulation regarding the second

warrant. Appellant’s trial counsel could have reasonably determined that

pursuing suppression as to the second search warrant would be a futile act.
Highland App. No. 16CA9                                                     24

However, Appellant contends that: (1) the list of items in the second warrant

was overly broad; and, (2) support for issuance of the second warrant was

based on an unsupported anonymous tip.

      {¶41} The second warrant alleges that the offenses of possession of

drugs and receiving stolen property had occurred in Greenfield. Patrolman

Lowe’s affidavit describes her observation of the substance she suspected to

be heroin. The need for the second warrant arose during the initial search at

12:25 p.m. and the second warrant was issued at 2:42 p.m. Given the type of

crimes Patrolman Lowe and others were investigating, we find the list of

items in the second warrant to be sufficiently specific. And, while Appellant

argues support for the second warrant was based on a vague anonymous tip,

we note it was also supported by Patrolman Lowe’s training and experience.

Had defense counsel pursued these arguments, we find it doubtful that he

would have prevailed.

      {¶42} For the foregoing reasons, we find Appellant cannot show that

pursuit of suppression as to the second warrant would have been anything

but futile. As such, he is unable to show prejudice for his counsel’s strategic

choice not to pursue a futile act. We find no merit to Appellant’s second

assignment of error that he was rendered ineffective assistance. Therefore,

we hereby overrule the second assignment of error.
Highland App. No. 16CA9                                                      25

                    ASSIGNMENT OF ERROR THREE

      {¶43} Appellant argues his right to a fair trial was violated by

repeated instances of prosecutorial misconduct. Appellant contends the

prosecutor expressed an improper personal opinion about his guilt and

further, elicited testimony and made closing statements that were improper

and should be considered cumulatively. Appellee asserts that the facts and

statements, when read in the context of the entire trial, are far from

improper. Because Appellant failed to lodge objections to the prosecutor’s

comments, we review the alleged errors under the plain-error standard.

                       A. STANDARD OF REVIEW

       {¶44} Failure to object to an alleged error waives all but plain error.

State v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, ¶ 15;

State v. Keeley, 4th Dist. Washington No. 11CA5, 2012-Ohio-3564, ¶ 28.

Notice of Crim.R. 52(B) plain error must be taken with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage

of justice. State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934

N.E.2d 920, ¶ 6; State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus. To find plain error, the outcome of trial

must clearly have been otherwise. State v. McCausland, 124 Ohio St.3d 8,
Highland App. No. 16CA9                                                       26

2009-Ohio-5933, 918 N.E.2d 507, ¶ 15; State v. Braden, 98 Ohio St.3d 354,

2003-Ohio-1325, 785 N.E.2d 439, ¶ 50.

      {¶45} “The test for prosecutorial misconduct is whether the conduct

was improper and, if so, whether the rights of the accused were materially

prejudiced.” Canterbury, supra, at ¶ 16, quoting State v. Purdin, 4th Dist.

Adams No. 12CA944, 2013-Ohio-22, ¶ 31; quoting State v. Leonard, 4th

Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 36; citing State v. Smith, 97

Ohio St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45, in turn citing State

v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “The ‘conduct of a

prosecuting attorney during trial cannot be grounds for error unless the

conduct deprives the defendant of a fair trial.’ ” Purdin at ¶ 31; quoting State

v. Givens, 4th Dist. Washington No. 07CA19, 2008-Ohio-1202, ¶ 28;

quoting State v. Gest, 108 Ohio App.3d 248, 257, 670 N.E.2d 536 (8th

Dist.1995). Accord State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d

394 (1987). “Prosecutorial misconduct constitutes reversible error only in

rare instances.” Purdin, supra, quoting State v. Edgington, 4th Dist. Ross

No. 05CA2866, 2006-Ohio-3712, ¶ 18; citing State v. Keenan, 66 Ohio

St.3d 402, 406, 613 N.E.2d 203 (1993). The “touchstone analysis * * * is

the fairness of the trial, not the culpability of the prosecutor. * * * The

Constitution does not guarantee an ‘error free, perfect trial.’ ” Purdin at
Highland App. No. 16CA9                                                      27

¶ 31; quoting Leonard at ¶ 36; quoting Gest at 257.

                            B. LEGAL ANALYSIS

        1. Alleged improper remarks.

        {¶46} At trial, Detective Chris Bowen, on behalf of the State,

testified that Appellant told him he had purchased some of the allegedly

stolen items at Lucasville Swap Days, described as “a giant flea market.”

Richard Wright, Appellant’s associate, testified on behalf of the defense that

Appellant purchased “almost an entire trailer load” of items at Swap Days.

Appellant points to the prosecutor’s comment to the jury in closing argument

that she had been to Lucasville Trade Days. The prosecutor stated:

        “The Defendant wants you to believe that the tools, the house
        supplies, and the heater were all purchased at the Lucasville
        Trade Days. Now I tell you, I’ve been there, several times.
        And certainly these items, probably everything but the heater
        could be purchased there. But, let’s think about this: The idea
        that someone would have purchased all of these stolen items on
        the same weekend and brought them all back, and the next day
        served with a search warrant? That’s not reasonable.”

        {¶47} Appellant argues the statements made by the State in closing

provide a personal opinion about the veracity of both Mr. Ralston’s

statement and Richard Wright’s testimony and indicate that this is based on

information personally obtained by the prosecutor but not presented to the

jury.

        {¶48} As a general matter, “[i]t is improper for an attorney to express
Highland App. No. 16CA9                                                        28

his or her personal belief or opinion as to the credibility of a witness.”

Canterbury, supra, at ¶ 25, quoting State v. Thompson, 141 Ohio St.3d 254,

292, 2014-Ohio-4751, 23 N.E.3d 1096; quoting State v. Williams, 79 Ohio

St.3d 1, 12, 679 N.E.2d 646 (1997). Further, “the state may not ‘unfairly

suggest[ ] that the defense's case was untruthful and not honestly

presented.’ ” State v. Thompson at 291; quoting State v. LaMar, 95 Ohio

St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 167. And, prosecutors

“ ‘may not express their personal beliefs or opinions regarding the guilt of

the accused.’ ” Canterbury, supra, at ¶ 18, quoting State v. Marcum, 4th

Dist. Gallia No. 12CA6, 2013-Ohio-5333, ¶ 63; quoting State v. Topping,

4th Dist. Lawrence No. 11CA6, 2012-Ohio-5617, ¶ 85; in turn quoting State

v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990).

      {¶49} The prosecutor is permitted to fairly comment upon

the testimony and evidence. Canterbury, supra, at 31. Topping, supra; State

v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 119. Any

“‘[p]rosecutorial misconduct rises to plain error only if it is clear that a

defendant would not have been convicted in the absence of the improper

comments.’ ” Canterbury, supra, at ¶ 19, quoting Marcum, supra, at ¶ 38;

quoting State v. Purdin, supra, at ¶ 39; quoting State v. Keeley, supra, at

¶ 28; citing State v. Conley, 4th Dist. Pike No. 08CA784, 2009-Ohio-1848,
Highland App. No. 16CA9                                                         29

¶ 7; State v. Olvera–Guillen, 12th Dist. Butler No. CA2007–05–118, 2008-

Ohio-5416, ¶ 36. Yet, we must be mindful that when reviewing allegations

of prosecutorial misconduct, it is our duty to consider the complained of

conduct in the context of the entire trial. State v. Waters, 4th Dist. Vinton

No. 13CA693, 2014-Ohio-3109, ¶ 33; citing Sunbury v. Sullivan, 5th Dist.

Delaware No. 11CAC030025, 2012-Ohio-3699, ¶ 30; citing Darden v.

Wainright, 477 U.S. 168, 106 S.Ct. 2464 (1986).

      {¶50} Based upon a review of the record and considering the

prosecutor’s statement regarding her own familiarity with the “trade

days/swap meet,” within the context of the entire trial, we cannot conclude

that the statements by the prosecution, when reviewed under a plain error

standard, rose to the level of prosecutorial misconduct. In other words, we

cannot say Appellant would not have been convicted in the absence of the

statements.

      {¶51} Cody Gunning, Appellant’s neighbor, testified that on Monday

April 20th, approximately 2:30 or 3:00 a.m., he was awakened by the sound

of vehicle doors slamming shut. He got up to get a drink and noticed

Appellant in his white Chevy Silverado pickup truck with a spool of wire

and other miscellaneous items in the bed of the truck. Gunning went back to

bed. When he left around 5:00 or 5:30 a.m. for a work-related interview, he
Highland App. No. 16CA9                                                      30

noticed everything in the back of Appellant’s white truck was gone.

Gunning identified the white pickup truck in the State’s exhibits, and he

identified Appellant in the courtroom.

      {¶52} Doug Ernst, senior manager over operations at Weastec,

testified the Greenfield facility was not staffed on Monday, April 20th.

However, when Ernst went to the Weastec Greenfield facility on Tuesday,

April 21st, he found that somebody had cut security wires, broken strike

plates, and gained access to the building. Weastec items were in disarray,

out of place. He found various items, unique to Weastec, had been stolen,

such as spools of copper wire. He immediately reported the break-in to the

Greenfield Police Department.

      {¶53} Patrolman Lowe testified, as related above, that she responded

to the Weastec facility, took a report, and began looking at various local

scrap yards. When she saw items in the back of Appellant’s truck that she

thought could possibly be the stolen items, she applied for a search warrant,

and subsequently found various items of Weastec property.

      {¶54} James Stuckey, who was building a new home in Leesburg,

Ohio, testified that he was a victim of theft on November 26, 2014. Upon

learning of the Weastec incident, on April 22, 2015, Stuckey contacted the

Greenfield Police Department and Highland County Sheriff’s Office
Highland App. No. 16CA9                                                       31

regarding his stolen property. At both places he found items belonging to

him. He also accompanied officers to Appellant’s residence and found more

items belonging to him, including a rare heater, a spool of Romex wire, a

decorative outdoor light, and windows. Stuckey identified the stolen

property at trial.

       {¶55} Rick Priest, a building contractor, testified he was working at

the Stuckey job site. He had an enclosed tool trailer to store his

construction-related equipment. When he reported to the job site on October

2014, he found his trailer locks had been cut and his tools removed. He

reported the theft to the Sheriff’s Department. Another theft at the same job

site occurred on November 28, 2014. Priest again reported the theft to law

enforcement. On April 23, 2015, he received a call from the Greenfield

Police Department to report and identify his property at the police

department at Appellant’s home. Priest identified for the jury various

photographs of hand tools and power tools that he recovered.

       {¶56} Richard Wright testified on behalf of Appellant. He testified

he was self-employed and did odd jobs. Because he lives near Appellant’s

recycling center, he would sometimes open the business or close it for

Appellant. He had worked for Appellant intermittently for 20 years. He

testified Appellant took in all types of scrap metal, and sold it to larger
Highland App. No. 16CA9                                                      32

recycling centers. He testified Appellant hoarded miscellaneous scrap items

in his building.

      {¶57} Wright testified he went to a flea market in Lucasville with

Appellant who bought windows and lights. Wright identified light fixtures

and windows in the State’s exhibits and testified Appellant bought those at

Lucasville. He also testified Appellant bought “almost an entire trailer load”

of various items at the flea market.

      {¶58} On cross-examination, Wright testified Appellant paid him

approximately $40.00 a day. He did not report that to the IRS. Wright

testified his brother drove the white truck to Lucasville, and Wright

unloaded the items purchased at Lucasville late at night.

      {¶59} Appellant was unable to elicit many pertinent facts from his

final witnesses. Richard Wright’s brother, Ronnie Wright, testified he had

known Appellant for 5-6 years. He repaired items for Appellant’s business.

Appellant also called his son and daughter, both whom appeared in jail –

issued clothing before the jury. Due to their own legal difficulties, they

exercised their Fifth Amendment right not to incriminate themselves in

response to many questions.

      {¶60} Based on the testimony presented at trial, we cannot say

Appellant would not have been convicted in the absence of the prosecutor’s
Highland App. No. 16CA9                                                           33

statement regarding her familiarity with the Lucasville flea market. While

much of the evidence of Appellant’s guilt is circumstantial, “[D]irect

evidence of a fact is not required. Circumstantial evidence * * * may also be

more certain, satisfying, and persuasive than direct evidence.” State v. Dunn,

4th Dist. Jackson No. 15CA1,2017-Ohio-518,¶ 25, quoting State v. Grube,

2013-Ohio-692, 987 N.E.2d 287 (4th Dist.), ¶ 30, quoting State v. Lott, 51

Ohio St.3d 160, 555 N.E.2d 293 (1990), citing Michalic v. Cleveland

Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 10, (1960), citing Rogers v.

Missouri Pacific RR Co, 352 U.S. 500-508, fn.17, 77 S.Ct. 443, 449, fn.17,

(1957).

      {¶61} While Appellant did present his defense that the allegedly

stolen items were purchased at the flea market he visited, determination of

the credibility of all the witnesses was well within the province of the jury.

State v. Shifflet, 2015-Ohio-4250, 44 N.E.3d 966, at ¶ 99. A jury sitting as

the trier of fact is free to believe all, part, or none of the testimony of any

witness who appears before it. State v. Grube, 2013-Ohio-692, 987 N.E.2d

287, ¶ 31 (4th Dist.).

      {¶62} A jury is in the best position to view the witnesses and to

observe witness demeanor, gestures and voice inflections, and to use those

observations to weigh credibility. Grube, supra, citing Myers v. Garson, 66
Highland App. No. 16CA9                                                       34

Ohio St.3d 610, 615, 614 N.E.2d 742 (1993); Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Appellate courts

should not generally second guess juries on matters of weight and

credibility. Grube, supra. See State v. Vance, 4th Dist. Ross No. 03CA27,

2004-Ohio-5370, at ¶ 10.

       {¶63} We are also mindful prosecutors are granted wide latitude in

closing argument, and the effect of any conduct of the prosecutor during

closing argument must be considered in light of the entire case to determine

whether the accused was denied a fair trial.” State v. Hall, 4th Dist. Ross No.

14CA3391, 2014-Ohio-2959, ¶ 47. Furthermore, the trial court instructed

the jury that the closing arguments of counsel are not evidence, and we

presume that jurors follow the court's instructions. State v. Noling, 98 Ohio

St. 3d 44, 2002-Ohio-7044, 781 N.E. 2d 88, See, e.g., State v. Williams, 73

Ohio St.3d 153, 159, 652 N.E.2d 721 (1995).

      {¶64} For the foregoing reasons, we find the prosecutor’s comment

that she had been to the Lucasville Flea Market and that Appellant’s

explanation of how he came to possess the stolen items was not reasonable,

even if in error, cannot be said to have risen to the level of plain error.

      2. Alleged misrepresentation of evidence.

      {¶65} Appellant was not charged with breaking and entering
Highland App. No. 16CA9                                                                                35

Weastec. He argues that at trial, the State elicited testimony from Patrolman

Lowe which incorrectly implied Appellant was involved in the break-in at

Weastec.

        Q:     During the search, uh, what about the truck caught your
        attention?

        A:     The initial thing that caught my attention is there had
        been mud sprayed up the side. Uh, subjects out at Weastec, uh,
        whatever vehicle that was used had gotten stuck in the mud
        behind the back of the building because of rain the previous
        night. And the other thing that caught my eye about his truck
        was some items in the back that appeared to have possibly to
        have come from Weastec.

While not objecting to the testimony, defense counsel later tried to elicit

testimony from Lowe that Appellant had been ruled out as involved in the

break-in at Weastec. He was permitted to elicit testimony that the tire tracks

at Weastec did not match Appellant’s truck. However, he was not allowed

to question about Appellant’s exclusion from the DNA evidence from

Weastec and the recovery of fingerprints at Weastec that were not compared

to Appellant’s.5

        {¶66} Appellant argues Lowe’s testimony misrepresented the

evidence and when the State’s closing statement and elicited testimony are

considered cumulatively, Appellant’s right to a fair trial was prejudiced.


5
 At a bench conference on the State’s objections to defense counsel’s questions on the fingerprinting and
DNA testing, the State offered that it had elicited the testimony about the truck from Patrolman Lowe in
order to prove the truck was holding wire belonging to Weastec and therefore subject to forfeiture.
Highland App. No. 16CA9                                                        36

However, Appellee takes the position that it was Appellant who was trying

to misrepresent the evidence since the fingerprints and DNA were not even

sent for testing. Defense counsel’s questions on these topics, if not

overruled by the trial court, could have mislead the jury into thinking

scientific testing had in fact been done and Appellant’s fingerprints and

DNA had been excluded by the testing.

      {¶67} While Patrolman Lowe’s testimony may have had the effect of

suggesting Appellant was involved in the break-in, it does appear relevant to

explaining the steps of her investigation. Defense counsel, by strategically

not posing an objection, was able to utilize the testimony to emphasize that

the truck tracks at Weastec did not match Appellant’s truck. We do not find

the prosecutor’s action in eliciting the testimony to be misconduct.

      {¶68} Further, if the prosecutor’s action could be construed as

misconduct, we do not find it rose to the level of plain error. Similarly, we

do not find Appellant’s right to a fair trial was prejudiced by the elicited

testimony in and of itself, or cumulatively. As set forth above, we find there

was other circumstantial evidence of Appellant’s guilt which the jury found

credible. For the foregoing reasons, we find no merit to Appellant’s third

assignment of error and it is hereby overruled. Accordingly, we affirm the

judgment of the trial court.
Highland App. No. 16CA9                        37

                          JUDGMENT AFFIRMED.
Highland App. No. 16CA9                                                        38

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, J.: Concurs in Judgment and Opinion as to Assignment of Error II;
            Concurs in Judgment Only as to Assignments of Error I & III.
Abele, J.: Concurs in Judgment Only.

                                        For the Court,

                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

NOTICE TO COUNSEL:             Pursuant to Local Rule No. 14, this
document constitutes a final judgment entry and the time period for
further appeal commences from the date of filing with the clerk.
