         [Cite as State v. Simmons, 2014-Ohio-3695.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-130126
                                                       TRIAL NO. B-1104759A
        Plaintiff-Appellee,                       :

  vs.                                             :
                                                           O P I N I O N.
LAMAR SIMMONS,                                    :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, Sentences Vacated,
                           and Cause Remanded

Date of Judgment Entry on Appeal: August 27, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

David Hoffmann, Josh Thompson and Christine Y. Jones, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}    Defendant-appellant Lamar Simmons appeals from the judgment of

the Hamilton County Court of Common Pleas convicting him, after a jury trial, of the

murder of Anthony Thompson and the offense of having weapons under a disability.

Simmons’s assertions that the trial court erred by overruling his motions for a

mistrial with prejudice and that he was denied a fair trial based on discovery

violations are not supported by the record, because the state’s delayed disclosure of

some evidence helpful to the defense was not willful and the evidence was disclosed

in sufficient time for Simmons to effectively use it at trial.

       {¶2}    Simmons has failed to demonstrate that he was entitled to a mistrial or

a new trial based on other alleged misconduct by the prosecutor, the admission of

other-act evidence, the denial of his right to the effective assistance of counsel, or the

trial court’s failure to record the sidebar conferences in accordance with Crim.R. 22.

Moreover, after our review of the evidence, we hold that Simmons’s convictions were

supported by sufficient evidence and were not against the manifest weight of the

evidence. But the trial court’s imposition of consecutive terms of imprisonment was

contrary to law where the trial court failed to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing. Therefore, we vacate Simmons’s sentences

and remand the cause for resentencing.

                                 Background Facts
       {¶3}    On March 8, 2011, at approximately 9:28 p.m., Thompson was shot to

death in the hallway of an apartment building located at 215 Mulberry Street in the

Mt. Auburn area of Cincinnati. At the time of the shooting, Thompson had been

arguing with his on-and-off girlfriend, Samirrah Kelsey, who lived in the building

with her five children, three of whom were fathered by Simmons.              Kelsey and

Simmons were no longer in an intimate relationship, but they occasionally had

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sexual encounters, and Simmons saw the children several times a week. James

Daniel, Kelsey’s brother and Simmons’s codefendant, sometimes stayed with Kelsey.

Daniel and Simmons had become friends over the years, having a mutual interest in

the well-being of Kelsey and her children.

       {¶4}    Less than a week before the shooting, Thompson had called 241-KIDS

to report that Kelsey had left the children alone without adult supervision. As a

result, on March 3, 2011, Kelsey was charged with child endangering. Her children

were removed and her job and housing assistance were “put on hold.”

       {¶5}    Kelsey soon learned that Thompson had not only called 241-KIDS, but

that he had also taken money and other items from her apartment. She was angry at

Thompson and distraught over losing her children and her voucher, and she shared

this information with Daniel, Simmons and her sister Simone Kelsey (“Simone”) in

the days leading up to the shooting.

       {¶6}    In response to one of her text messages about her situation, Simmons

wrote back, “That’s crazy he got to pay.” In the evening of March 7, 2011, the day

before the shooting, Simmons had texted to her, “You know I been thinking a lot[;]

this nigga fucked up everything you had going.” Kelsey replied that she knew that

and that she was thinking about “buy[ing] a gun [and] just doing the time” because

she “hurt” so much from not seeing her children.

       {¶7}    On the day of the shooting, at 6:34 p.m., Kelsey texted her brother

Daniel that she was going to call Simmons and tell him about Daniel’s plan, in which

Daniel would be there to “watch,” “because he [Simmons] ready rite knw.” Daniel

replied, “Its on.”

       {¶8}    Kelsey and Thompson then had dinner together at a restaurant.

During dinner, Kelsey became angry at Thompson and left, taking the bus home to

her apartment on Mulberry Street. A short time later, Thompson showed up at her

apartment. Thompson knocked on her window, and she eventually let him into her

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apartment. Thompson wanted to take back his DVD player and to talk, and they

ended up arguing in the first floor hallway of the apartment building.

       {¶9}   Meanwhile, Simmons and Daniel consistently communicated with

each other by the use of their cell phones to carry out their plan to ambush

Thompson. Daniel texted Simmons at 8:32 p.m. to let him know that he had arrived

at Kelsey’s apartment. Simmons asked if Kelsey was there.        At 8:35 p.m., Daniel

texted to Simmons that Kelsey was not answering her phone and had locked him out,

so he would just wait for her. Simmons immediately replied, “We cant do nothing

tonight.” The two then exchanged a series of phone calls. At 9:01 Daniel texted back,

“When you send this tex. We cant do nothing tonight.” Simmons replied, at 9:14

p.m., “Leaving the house.” The two men then had a short conversation using their

cell phones that ended at 9:16 p.m.

       {¶10} About 12 minutes later, Kelsey’s and Thompson’s argument in the
hallway of Kelsey’s apartment building was interrupted by someone banging on the

outside door to the building. Thompson opened the door, but the heated argument

resumed. A person dressed completely in black, including a black mask, came in

through the open door. Thompson moved aside to give the person access to the

stairwell. Kelsey then saw the person shoot Thompson. She immediately dropped to

the floor and covered her face.

       {¶11} Police communications received the first 911 call at 9:29 p.m. Three
minutes later, when the police arrived, they found Thompson dead from gunshot

wounds to his head, neck, torso, and arm, and Kelsey very upset. Detectives

attempted to take fingerprints from the scene, but they did not take DNA samples.

       {¶12} Kasey “Michelle” Coffey, who lived on Seitz Street, located one street
above and parallel to Mulberry Street on the Mt. Auburn hillside, reported to the lead

investigator on the case, Detective Jacob Wloszek, that she had heard gun shots and

a scream as she unloaded groceries from her car parked on Seitz Street. She then

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                     OHIO FIRST DISTRICT COURT OF APPEALS



had seen two “black” individuals run up the hillside steps that connected Mulberry

and Seitz Streets and drive away in separate cars that had been parked on Seitz.

Coffey reported that one car had contained a woman.

       {¶13} Simmons and Daniel were later co-indicted for Thompson’s murder.
The indictment included one count of murder in violation of R.C. 2903.02(A), with a

firearm specification, and separate counts charging the offense of having weapons

under a disability. Simmons and Daniel were tried separately.

                          The Case Against Simmons
       {¶14} Daniel testified for the state at Simmons’s trial, although the charges
related to Thompson’s shooting were still pending against him. Daniel stated that on

March 8, 2011, the night of the shooting, he and Simmons had carried out a plan to

confront and harm Thompson, as desired by Kelsey. To that end, after Kelsey had

left her dinner with Thompson, Daniel had gone to Kelsey’s apartment to check on

Kelsey and to see if Thompson would appear. When Thompson arrived, Daniel

observed him arguing with Kelsey in the common hallway of Kelsey’s apartment

complex. Daniel contacted Simmons by cell phone to advise him of what he had

seen. Simmons then drove to meet Daniel on the street above Mulberry Street,

where Daniel had moved his car. Daniel’s girlfriend, Latrice White, waited in his car.

       {¶15} From the vantage point, Daniel and Simmons viewed Kelsey and
Thompson arguing inside the apartment building. Simmons pulled out a semi-

automatic handgun, descended the hillside steps to Mulberry Street, and knocked on

the outside door of Kelsey’s apartment building. Daniel followed him, but Simmons

ordered him to wait outside the building. Daniel saw Simmons enter the building

when someone opened the door. Daniel then heard several shots and a scream.

After Simmons ran out of the building, Daniel and Simmons ran up the hillside steps

to their cars and drove off to separate places.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



          {¶16} The two communicated several more times during the next two days,
including the morning after the shooting, when Daniel sent Simmons a text that he

“love[d]” him “flatout.” Simmons responded, “Who you love.” Daniel responded, “U

nigga.”

          {¶17} Daniel was cross-examined on his statements given to Detective
Wloszek during a police interview. Daniel admitted that he had first denied being at

the scene of the crime and any involvement with the murder. He also acknowledged

that during the interview he had made a comment, later retracted, that suggested

Simone had been in the hallway with Kelsey and Thompson during the shooting.

          {¶18} Daniel’s trial testimony concerning the shooting was corroborated to
some extent by Coffey, who testified that she had seen two people run up the hillside

steps and drive off in two cars, one containing a female, after the shooting. At first

Coffey testified that the two people were black males dressed in black and wearing

skull caps or hoods and whose skin appeared dark in the evening light, but on cross-

examination she conceded that they could have been “good sized female[s].”

          {¶19} In addition to Daniel’s eyewitness testimony, Kelsey testified that
Simmons had told her “that he was sorry for the incident that happened in the

hallway.” Because of the way he said it, she understood his statement to be an

admission to shooting Thompson, and she immediately told Simmons to stop talking

to her.     She later shared Simmons’s “admission” with the police, but she was

reluctant to share it with the jury.

          {¶20} The state also presented circumstantial evidence establishing
Simmons’s guilt. This included cell-phone data for the day of the shooting and the

days around the shooting from accounts linked to Daniel, Kelsey and Simmons.

These records, authenticated by Cincinnati Bell employee Pamela Papke, contained

the text messages and the call log that validated the state’s theory that Simmons had

participated in a planned ambush of Thompson.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21} However, the records also reflected that Daniel had received a text on
the morning after the shooting from an unknown phone number indicating that the

person texting had had to throw away a gun.           Detective Wloszek testified that

during the investigation he had dismissed the message as unrelated to Thompson’s

murder and had not determined who had sent the message.

       {¶22} The main theme of Simmons’s defense, as first set forth in opening
statement, was that Kelsey and her siblings Simone and Daniel had taken revenge

against Thompson for calling 241-KIDS and that they were protecting each other at

Simmons’s expense. Defense counsel moved for a mistrial on several occasions due

to discovery issues and the admission of other-act evidence.           The trial court

overruled these motions.

                           The Verdict and Sentence
       {¶23} The jury found Simmons guilty of murder, but not guilty of an
accompanying firearm specification, and guilty of having weapons under a disability.

At trial, Simmons had stipulated that he was under a disability from a prior

conviction that prevented him from having a weapon. Simmons then moved for a

new trial and for a judgment of acquittal notwithstanding the verdict.

       {¶24} The trial court overruled Simmons’s post-trial motions, and sentenced
Simmons to an indefinite term of life in prison for the murder and three years in

prison for the weapons offense, to be served consecutively to the indefinite life term.

       {¶25} On appeal, Simmons assigns seven errors:                (1) prosecutorial

misconduct, including discovery violations, and the admission of other-act evidence,

denied him due process and a fair trial; (2) he was denied the effective assistance of

counsel; (3) the court’s imposition of consecutive prison terms was contrary to law;

(4) the court erred by failing to record sidebar conferences; (5) the court erred by

overruling his motions for a mistrial based on the prosecutor’s misconduct, including

discovery violations, and the admission of other-act evidence, (6) his convictions

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                     OHIO FIRST DISTRICT COURT OF APPEALS



were not supported by sufficient evidence; and (7) his convictions were against the

manifest weight of the evidence.

                    Discovery and Due-Process Violations
       {¶26} Simmons’s first and fifth assignments of error involve, in part, the
state’s failure to provide discovery.   To aid our analysis of the issues related to the

discovery violations, including any due-process violations, we set forth the facts of

the discovery violations in some detail.

       {¶27} The record demonstrates that Simmons requested discovery in the
case soon after his indictment and that the state had provided a response to that

request. Simmons later moved to compel the disclosure of several items, but he

withdrew his motion upon the state’s supplemental responses. The state

supplemented its response about a week before trial when it first named Daniel’s

girlfriend White as a potential witness. Neither party called White to testify at trial.

       {¶28} Kasey “Michelle” Coffey. On Wednesday, January 25, 2013, after
the conclusion of voir dire, the court learned that the state had violated the discovery

rules when it had failed to name Kasey “Michelle” Coffey as a witness and to provide

her statement to Simmons prior to trial.

       {¶29} The prosecutor explained to the court that the delayed disclosure of
the witness had resulted from Detective Wloszek’s confusion of Coffey with another

witness with the first name of Michelle, Michelle Evans, who had been timely

disclosed to the defense and who had been interviewed as a witness. Detective

Wloszek claimed that he had taken an oral statement from Coffey, who he had also

known as the confidential informant “Sammy,” several days after the murder, and

that he had summarized that statement in an investigative log. The prosecutor

claimed that he had just learned of the mistake.

       {¶30} Simmons first moved to exclude Coffey, characterizing the delayed
disclosure as suspicious because he claimed it coincided with the unavailability of

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                     OHIO FIRST DISTRICT COURT OF APPEALS



another state’s witness who the state had believed could provide similar testimony,

an allegation not substantiated by the record. After defense counsel was provided

with Detective Wloszek’s summary of Coffey’s statement and an opportunity to meet

with Coffey, the trial court held an evidentiary hearing, at which both Detective

Wloszek and Coffey testified. Their testimony conflicted with respect to the details of

Coffey’s statement and how and when it was made, but Coffey’s testimony

corroborated Detective Wloszek’s testimony with respect to his confusion of her with

another witness at court on the previous day. Upon hearing this testimony, defense

counsel moved for a mistrial with prejudice.

       {¶31} After concluding that the delayed disclosure was due to a mistake, and
not bad faith, the court overruled the motion to exclude Coffey and the motion for a

mistrial. The court offered Simmons any continuance that defense counsel would

need to prepare for Coffey’s testimony.

       {¶32} Defense counsel declined the court’s offer of a continuance and stated
that he would be ready to proceed the following morning. Consistent with this

statement, defense counsel appeared the following morning and the case proceeded

to opening statement without any indication from defense counsel that he was not

prepared to go forward. The state called Coffey as its fourth witness, and defense

counsel thoroughly cross-examined her.

       {¶33} May 2011 Cell-Phone Documents. Later, on Monday, January
28, defense counsel learned that the state had failed to disclose a search warrant,

accompanied by a supporting affidavit signed by Detective Wloszek, that ordered

Cincinnati Bell to disclose Simone’s cell-phone records for the dates of May 3

through May 6, 2011. In the affidavit, Detective Wloszek had indicated that Simone

was suspected of murdering Thompson.

       {¶34} Defense counsel learned of the nondisclosure when Detective Wloszek
was asked during cross-examination why he had not interviewed Simone and

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obtained her cell-phone records. Detective Wloszek testified that he had obtained

Simone’s cell-phone records from the phone company and that he had given the

resulting report to the prosecutor. Defense counsel then objected and informed the

court that the defense had not received that report or the warrant and affidavit. The

trial court continued the case until the next morning, and ordered the prosecutor to

investigate the allegation and to share the outstanding materials with defense

counsel.

       {¶35} The following morning, the prosecutor informed the court that he had
learned that the state also had not turned over the warrant for and the resulting

report related to the cell-phone records of Simmons or Daniel for the dates of May 3

through May 6, 2011. The prosecutor then explained that the former prosecutors

assigned to the case, after speaking with Detective Wloszek, had determined that

none of the May cell-phone documents contained any evidence for the state or any

Brady material to provide to defense counsel. Because of this, the prosecutors had

not requested these documents from Detective Wloszek and had not made copies to

give to defense counsel.

       {¶36} Defense counsel suggested that the court order a two-month
continuance, but after reminding the court of the other discovery issues in the case,

including the late disclosure of Coffey, he contended that the cumulative errors had

affected Simmons’s right to a fair trial and mandated the granting of Simmons’s

motion for a mistrial with prejudice. Defense counsel argued the violation involved

willful misconduct because the prosecution had earlier notice of the violation from

Detective Wloszek’s knowledge and had failed to cure the violation at the first

opportunity. Defense counsel explained that several days prior, when Papke was

testifying for the state, defense counsel had asked Papke if Cincinnati Bell had

received an order compelling the production of Simone’s cell-phone records. Papke

replied that she was not personally aware of such an order filed with her office.

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Detective Wloszek had remained in the courtroom during this testimony, but he did

not tell the prosecutor that he had actually obtained Simone’s cell-phone records

from Cincinnati Bell.

       {¶37} The trial court considered defense counsel’s arguments, and found that
it would have been “helpful” for the defense to have had the search warrant and the

affidavit listing Simone Kelsey as a suspect. Although the court did not find any

willful violation of the discovery rules or bad faith, the court did sharply criticize the

state for failing to characterize the warrant and affidavit as favorable evidence.

       {¶38} The court was aware that the final discovery violation had come to
light late in the state’s case, but the court declined to grant a mistrial with prejudice

at that time under the circumstances, believing that the sanction of “last resort” was

not appropriate. Instead, the court continued the case until the following day to

allow defense counsel to review the records that had not been provided in discovery

and to have the opportunity to interview Simone, who had been identified as a

potential state’s witness in earlier discovery.

       {¶39} The trial court continued the case an additional day because Simmons
was not available. Before resuming the trial on Thursday, January 31, the trial court

inquired as to whether defense counsel had received and reviewed all of the relevant

documents. Defense counsel indicated that he had reviewed the documents, that the

cell-phone reports did not contain anything of significance, and that he had also been

provided an opportunity to contact Simone but he had chosen not to do so. Defense

counsel indicated that he was ready to proceed, and he resumed the cross-

examination of Detective Wloszek, armed with the missing discovery to further

inculpate Simone.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



                   Claims based on Discovery Violations
       {¶40} Simmons argues that the trial court should have granted his motions
for mistrial after learning of the discovery violations by the state. We note that

Simmons sought not just a mistrial, but a “mistrial with prejudice” to the state,

meaning that the state could not retry him for the charged offenses. Simmons also

argues that the discovery violations denied him a fair trial and warrant the granting

of a new trial.

       {¶41} The Discovery Rules. Generally, discovery violations in criminal
cases are governed by Crim.R. 16. The Supreme Court has recently explained the

trial court’s duty with respect to discovery violations by the state in State v.

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971. When a discovery

violation occurs, the trial court has discretion to make any order that the court

“deems just under the circumstances.” Crim.R. 16(L)(1); Darmond at ¶ 33.

       {¶42} The trial court’s discretion includes ordering the most severe sanction,
a mistrial with prejudice, Darmond at ¶ 41, but only after inquiring into the

circumstances surrounding the violations and taking into consideration (1) whether

the failure to disclose was a willful violation of Crim.R. 16, (2) whether

foreknowledge of the undisclosed material would have benefited the accused in the

preparation of a defense, and (3) whether the accused was prejudiced. Darmond at ¶

35, citing State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983), syllabus. And,

when determining the appropriate sanction, the court “ ‘must impose the least severe

sanction that is consistent with the purpose of the discovery rules.’ ” Darmond at

syllabus, quoting Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987).

       {¶43} The Darmond court noted that the purpose of Crim.R. 16(A), as
amended in 2010, is “ ‘to provide for a just determination of criminal proceedings

and to secure the fair, impartial, and speedy administration of justice’ ” and that it

does so by “ ‘expand[ing] the reciprocal duties in the exchange of materials’ and [by]

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‘balanc[ing] a defendant’s constitutional rights with the community’s compelling

interest in a thorough, effective and just prosecution of criminal acts.’ ” Darmond at

¶ 29, quoting the Staff Notes to the 2010 amendment to Division (A) of Crim.R. 16.

       {¶44} Simmons sought the most severe sanction, a mistrial with prejudice.
But the trial court investigated the circumstances of the discovery violations and

found that the less restrictive sanction of a continuance was appropriate because it

would provide defense counsel with the opportunity to review and use the

undisclosed evidence. We find no abuse of the trial court’s discretion.

       {¶45} No willful violations. First, the trial court found no bad faith or
willful violations. While knowledge on the part of a law enforcement officer must be

imputed to the state in determining whether there was a violation of Crim.R. 16, a

determination of willfulness focuses only the acts of the prosecution. State v. Wiles,

59 Ohio St.3d 71, 78-79, 571 N.E.2d 97 (1991).

       {¶46} Notwithstanding the violation based on Detective Wloszek’s mistake
with respect to Coffey, the prosecutor explained that he was not aware Coffey was a

witness until her existence was brought to the attention of the court. With respect to

the violation related to the May 2011 cell-phone documents, the prosecutor admitted

that the former prosecutor had been aware of those items but that the former

prosecutor had believed, erroneously with respect to the subpoena and affidavit

naming Simone as a suspect, that the state did not have to provide any of them to the

defense. The trial court was satisfied that the representations of the prosecutor were

credible, and we have no basis to question this conclusion.           Moreover, it is

undisputed that the prosecutor provided the information as soon it became available

to him.

       {¶47} Benefit of earlier disclosure. The trial court found that an
earlier disclosure of Coffey’s identity and Detective Wloszek’s summary of her

statement could have benefitted the defense. The trial court came to the same

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conclusion with respect to the warrant and affidavit related to the May 2011 cell-

phone records that identified Simone as a suspect.

       {¶48} No Prejudice from Delayed Disclosure. With respect to the
violation involving Coffey and her statement, the court ensured that defense counsel

had access to Coffey for an interview and that defense counsel was provided

Detective Wloszek’s summary of her statement. This information was provided

before opening statement. The trial court offered the defense a continuance, an offer

that defense counsel declined after providing assurances that he was ready to

proceed.

       {¶49} With respect to the violation involving the May 2011 cell-phone
records and related documents, the court made sure that defense counsel was

provided with the materials, and the court granted a continuance so that defense

counsel could evaluate those documents and use them before the conclusion of the

trial. Defense counsel appeared two days later ready to proceed, and acknowledged

that the only helpful evidence from these documents was Detective Wloszek’s

characterization of Simone as a suspect in the warrant and supporting affidavit.

       {¶50} While the warrant and supporting affidavit were helpful to the defense
for that reason, the defense had received other discovery casting Simone as a suspect

and had used that other information at trial before learning of the warrant and

supporting affidavit. For instance, the state had produced Kelsey’s cellular phone

records that included a text message dated March 5, 2011, from Kelsey to Simmons

stating that “[her] other sister and brother wnt to bury [Thompson.]”        And, in

opening statement, defense counsel told the jurors the theme of the defense: that

Kelsey and her two siblings Simone and Daniel “were livid and upset” at Thompson

and “were highly motivated to cause harm” to him, and they were protecting “their

blood” at Simmons’s expense.        Further, the state had identified Simone as a



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potential witness before trial in early discovery, and therefore, Simmons had ample

notice to interview her.

       {¶51} Under these circumstances, we find no abuse of the trial court’s
discretion in overruling the motions for mistrial related to the discovery violations.

       {¶52} New Trial under Crim.R.16. Simmons also argues that he is
entitled to a new trial based on the discovery violations. The Ohio Supreme Court

has held that the state’s violations of Crim.R. 16 are reversible error “only when there

is a showing that (1) the prosecution’s failure to disclose was a willful violation of the

rule, (2) foreknowledge of the information would have benefited the accused in the

preparation of his defense, and (3) the accused suffered some prejudicial effect.”

State v. Joseph, 73 Ohio St.3d 450, 458, 653 N.E.2d 285 (1995), citing State v.

Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983).

       {¶53} We have already held that the prosecutor’s failures to disclose were not
willful violations of the rule. Therefore, Simmons cannot demonstrate reversible

error based on the state’s violations of Crim.R. 16.

       {¶54} New Trial under Due Process Clause. Simmons also argues
that this court should grant him a new trial because the discovery violations deprived

him of his constitutional right to a fair trial. Undoubtedly, the fair-trial guarantee of

the Due Process Clause of the United States and Ohio Constitutions imposes upon

the state the duty to disclose to the accused evidence material to his guilt or

punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963). This duty extends to “any favorable evidence known to the others acting on

the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S.

419, 437 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

       {¶55} But, “the Due Process Cause is not implicated when exculpatory
evidence is disclosed during trial, State v. Wickline, 50 Ohio St.3d 114, 116, 552

N.E.2d 913 (1990), as long as the evidence is disclosed ‘in time for its effective use at

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trial,’ United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th

Cir.1985), and the timing of the disclosure does not otherwise ‘significantly impair[]

the fairness of the trial.’ ” State v. Tucker, 1st Dist. Hamilton No. C-120446, 2013-

Ohio-2882, ¶ 26, quoting State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937

(2001).

         {¶56} Simmons essentially argues that discovery material favorable to his
defense was not disclosed in time for its effective use at trial. We review this claim,

which involves many of the same issues rejected by the trial court when it overruled

Simmons’s motion for a new trial, in the context of the entire trial.

         {¶57} Simmons complains that because of the late disclosure of Coffey, he
could not interview her pretrial. But the prosecution made Coffey available before

opening statements. Further, the trial court offered the defense a continuance and

defense counsel determined that it was not needed.              Moreover, the record

demonstrates that Coffey was thoroughly cross-examined, such that she admitted

that she could have seen females instead of males running up the Mulberry Street

steps.

         {¶58} Simmons also argues that he was prejudiced by the late disclosure of
Detective Wloszek’s “summary” of Coffey’s statement.             But defense counsel

effectively cross-examined Coffey and Detective Wloszek on the details of Coffey’s

statement to the detective concerning her observations at the time of the shooting.

Detective Wloszek admitted that Coffey, when testifying, had not adopted his

summary of her statement, which indicted that she had seen two males running up

the steps, but instead testified that she could have seen a male or female running up

the steps. Simmons then highlighted this testimony in closing argument.

         {¶59} Simmons also argues that his fair-trial rights were violated because he
did not learn until the cross-examination of Coffey that her roommate “was

interviewed by the police.” But Simmons mischaracterizes Coffey’s testimony, which

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provided only that her roommate “did speak with police officers outside” of the

apartment on the night of the shooting.             And he has failed to show that this

testimony was evidence material to his guilt or punishment. In summary, we are

unable to discern from this record how the timing of the disclosures related to Coffey

significantly impaired the fairness of the trial.

       {¶60} We arrive at the same conclusion with respect to late disclosure of the
search warrant and affidavit listing Simone as a suspect in Thompson’s murder.

Defense counsel was able to ask Detective Wloszek’s about his “probable cause” to

support the search warrant for Simone Kelsey’s phone records. He was successful in

obtaining Detective Wloszek’s admission that he had suspected that Simone had

been involved in the murder at one time, but that he had not exerted much effort to

investigate her. Further, defense counsel was able to use this evidence in closing

argument to bolster the theme of the defense that counsel had first presented in

opening statement based on other evidence.

       {¶61} Thus, the record does not demonstrate that the trial court abused its
discretion by denying Simmons’s motions for a mistrial based on the discovery

violations, or that Simmons is entitled to a new trial based on those violations.

                                Other-Act Evidence
       {¶62} Simmons argues that the trial court abused its discretion by denying
his motion for a mistrial based on Kelsey’s references to his incarceration, and that

Kelsey’s references, as well as a similar reference by Detective Wloszek, amounted to

prosecutorial misconduct that warranted a new trial.

       {¶63} At trial, Kelsey referred to Simmons’s incarceration twice during direct
examination. The first reference occurred after the prosecutor had asked her when

she and Simmons had last had sex.           She responded, “I guess right before Mr.

Simmons got locked up.” The next reference occurred when the prosecutor began to

question Kelsey about a statement that she had made to the detectives concerning a

                                                17
                    OHIO FIRST DISTRICT COURT OF APPEALS



conversation that she had had with Simmons and in which Simmons had implicated

himself. In response to the prosecutor’s question about her statement, Kelsey stated

that she had told the detectives “that Lamar had come to me one night before he, I

guess, got incarcerated.”

       {¶64} After both of Kesley’s improper references, Simmons objected. The
trial court provided a limiting instruction with respect to the testimony, and found

that Simmons could have a fair trial despite the comments.

       {¶65} Later in the trial, Detective Wloszek was asked about the course of the
investigation that allowed him to identify Simmons’s cell-phone number. Detective

Wloszek testified that after learning the names of Kelsey’s children and the names of

their fathers, the police “began to look in a little bit more to whom Mr. Simmons and

the other children’s fathers were including an RCIC background check, which is short

for Regional Crime Information Center. We entered Mr. Simmons’s name into the

computer--.” Defense counsel then objected. After a sidebar conference, which

resulted in an agreement that the prosecutor would reword his question, the

prosecutor asked Detective Wloszek whether he was able to associate a telephone

number found in Kelsey’s databank with Simmons. Detective Wloszek replied, “Yes.”

       {¶66} Mistrial. The granting or denial of a motion for a mistrial rests in the
sound discretion of the trial court. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-

4190, 813 N.E.2d 637, ¶ 92, citing Glover v. Ohio, 35 Ohio St.3d 18, 19, 517 N.E.2d

900 (1988). The trial court need not declare a mistrial “unless the ends of justice so

require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118,

127, 580 N.E.2d 1 (1991). The trial court is in the best position to determine whether

the circumstances warrant the declaration of a mistrial. Ahmed at ¶ 92.

       {¶67} Simmons moved for a mistrial with prejudice based on Kelsey’s
reference to his incarceration twice during direct examination. Defense counsel

moved for a mistrial in part based on the argument that these references did not

                                             18
                      OHIO FIRST DISTRICT COURT OF APPEALS



merely place improper and prejudicial evidence before the jury, but that the

prejudice from the remarks extended beyond the immediate effect on the jury and

undermined the defense. Defense counsel explained to the trial court his belief that

Kelsey’s multiple visits to the Hamilton County Justice Center to see Simmons and

Daniel demonstrated her complicity.         The defense could have mentioned these

repeated visits as evidence of Kelsey’s complicity, but instead the defense decided, as

part of a “trial strategy,” that the cost of revealing the incarceration to the jurors, and

invoking the stigma of incarceration, was not worth the benefit of establishing this

connection of Kelsey to the homicide.

       {¶68} Simmons maintains that the court’s instruction did not cure the
prejudice from Kelsey’s remarks, and that it was too late to effectively cross-examine

or impeach Kelsey on her remarks. We disagree. The record does not support

Simmons’s contention that the defense could not have chosen to change the trial

strategy during Kelsey’s testimony. And we presume that the jury followed the trial

court’s instruction with respect to the improper remarks.

       {¶69} In light of the trial court’s curative instruction, the trial court’s
decision to deny the mistrial motion based on Kelsey’s improper reference to

Simmons’s incarceration exhibited a sound reasoning process and will not be

disturbed. See Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, at ¶ 92.

       {¶70} New Trial.         We also reject Simmons’s claim that he should be

awarded a new trial based on the combined effect of Kelsey’s comments and

Detective Wloszek’s testimony implying that he had identified Simmons’s cell-phone

number through the “Regional Crime Information Center” database. The jury is

presumed to have followed the court’s instruction to disregard the part of Kelsey’s

response concerning Simmons’s incarceration. And although the trial court did not

issue a similar instruction regarding Detective Wloszek’s reference to the “Regional

Crime Information Center,” we cannot say that this comment prejudiced Simmons to

                                                19
                     OHIO FIRST DISTRICT COURT OF APPEALS



the extent that he was denied a fair trial.   We note that the comment was a vague

and fleeting reference to prior bad acts, and that the jury was made aware that

Simmons had prior convictions by his own stipulation to that fact, which established

his disability for the weapons offense.

                           Prosecutorial Misconduct
       {¶71} Simmons also argues that prosecutorial misconduct denied him his
constitutional right to due process and a fair trial, requiring a reversal of his

convictions. In support of his argument, Simmons cites the prosecution’s alleged

elicitation of prior-bad-act testimony and the prosecutor’s improper remarks in

closing argument.

       {¶72} Generally, prosecutorial misconduct will not provide a basis for
overturning a criminal conviction, unless, on the record as a whole, the misconduct

can be said to have deprived the appellant of a fair trial. State v. Lott, 51 Ohio St.3d

160, 166, 555 N.E.2d 293 (1990). “The touchtone of analysis ‘is the fairness of the

trial, not the culpability of the prosecutor.’ ” State v. Hanna, 95 Ohio St.3d 285,

2002-Ohio-2221, 767 N.E.2d 678, ¶ 61, quoting Smith v. Phillips, 455 U.S. 209, 219,

102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Applying this standard, we find no merit to

Simmons’s claim.

       {¶73} Although the record does reflect that Kelsey had twice referenced that
Simmons had been incarcerated and that Wloszek had disclosed that he had

performed a computer check on Simmons through the “Regional Crime Information

Center,” the record does not suggest in any way that the prosecutor had elicited this

testimony.   The prosecutor’s questions were not facially designed to elicit the

improper responses. Moreover, the record demonstrates that the prosecutor twice

prevented the jury’s further exposure to this information.         He interrupted an

additional response from Kelsey in which it appeared that she would again refer to

Simmons’s incarceration. Later, he interrupted himself from referring to Simmons’s

                                              20
                     OHIO FIRST DISTRICT COURT OF APPEALS



incarceration when reading back to Kelsey a statement that she had made to the

police that referenced Simmons’s incarceration.       And, the prosecutor agreed to

restate the question that he had asked of Detective Wloszek to avoid any reference to

the objectionable testimony and he did not return to that same line of questioning.

We conclude, therefore, that Simmons has failed to demonstrate that the prosecutor

acted improperly with respect to this testimony.

       {¶74} Simmons claims also that misconduct took place during closing
argument when the prosecutor repeatedly referred to him as the “offender.” The test

for prosecutorial misconduct in closing argument is whether the comments were

improper and prejudicial to the accused’s substantial rights. State v. Williams, 99

Ohio St.3d 439, 447, 2003-Ohio-4164, 793 N.E.2d 446, citing State v. Smith, 14 Ohio

St.3d 13, 14, 470 N.E.2d 883 (1984). In determining whether a prosecutor’s remarks

during closing argument were prejudicial, we must consider “the effect the

misconduct had on the jury in the context of the entire trial.” State v. Keenan, 66

Ohio St.3d 402, 410, 613 N.E.2d 203 (1993).

       {¶75} Simmons characterizes the prosecutor’s use of the word “offender” as a
repeated interjection of the prosecutor’s opinion about the defendant’s guilt. The

state argues that the prosecutor’s comments were not improper because Simmons,

who stipulated to his prior conviction, was properly characterized as a convicted

offender. The state also notes that Simmons failed to object to the prosecutor’s

reference to him as the offender, and therefore, a plain error standard of review

applies. Plain error is one in which but for the error, the outcome of the trial clearly

would have been different. See, e.g., State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph two of the syllabus.

       {¶76} We reject the state’s argument that the prosecutor’s repeated reference
to Simmons as the “offender” was proper and within the latitude allowed in

summation due to Simmons’s prior conviction.          The prosecutor used the term

                                              21
                     OHIO FIRST DISTRICT COURT OF APPEALS



multiple times during the initial portion of closing argument to indicate that

Simmons was one of the “offenders” who had participated in the murder of

Thompson. For instance, the prosecutor stated that “[t]he [telephone numbers] are

affiliated with different offenders” and that the “telephone records indicate * * * what

kind of text messages are going on between each of these offenders.”

       {¶77} A prosecutor should not invade the jury’s realm by rendering a
personal belief regarding guilt. Smith, 14 Ohio St.3d at 14, 470 N.E.2d 883; State v.

Stephens, 24 Ohio St.2d 76, 83, 263 N.E.2d 773 (1970). The prosecutor’s use of the

word “offender” may have insinuated his belief that Simmons was guilty and was not

proper. But after considering these remarks in the context of the lengthy trial, the

evidence presented at trial, and the trial court’s general instruction that the

arguments of counsel are not to be considered as evidence, we conclude that the

prosecutor’s remarks did not affect the outcome of the trial and rise to the level of

plain error.

       {¶78} In sum, because we hold that the trial court did not abuse its discretion
by overruling Simmons’s motions for a mistrial, and that Simmons received a fair

trial notwithstanding the discovery violations, the witnesses’ reference to other-act

evidence, and the prosecutor’s improper remarks in closing argument, we overrule

the first and fifth assignments of errors.

                   Failure to Record Sidebar Conferences
       {¶79} In his fourth assignment of error, which we address next, Simmons
contends that the trial court erred by failing to record sidebar conferences. As

Simmons indicates, there were at least 36 unrecorded sidebar conferences in this

case, which included the discussion of some of the motions for mistrial. During

recesses, the trial court paraphrased the contents of these sidebar conferences in a

“summary,” generally covering the contents of two or three sidebars at a time, but

sometimes as many as nine. After reciting this summary, the trial court allowed each

                                              22
                       OHIO FIRST DISTRICT COURT OF APPEALS



party to add or correct the summary.           Defense counsel did not object to this

procedure.

       {¶80} This court has recently reiterated that Crim.R. 22 requires the
recording of sidebar conferences in serious-offense cases, State v. Davis, 1st Dist.

Hamilton No. C-130198, 2014-Ohio-794, ¶ 13, citing State v. Brewer, 48 Ohio St.3d

50, 60-61, 549 N.E.2d 491 (1990), and State v. Keenan, 81 Ohio St.3d 133, 139, 689

N.E.2d 929 (1998), and that the trial court’s summary of the sidebar conferences in

lieu of a recording is error. Davis at ¶ 15.

       {¶81} We also reiterated, however, that a defendant must show prejudice
from the trial court’s failure to record the sidebar conferences, especially where the

defendant does not object to the procedure employed by the court. Id. To that end,

the defendant bears the burden of reconstructing the unrecorded sidebar

conferences, as provided in App.R. 9(C). Id. at ¶ 14.

       {¶82} In this case, Simmons accepts the trial court’s summaries as a
substitute for an App.R. 9(C) statement. But he then takes a contradictory position

and argues, without any support, that the summaries were not comprehensive and

that as a result he was prejudiced.

       {¶83} On this record, Simmons has demonstrated that the trial court erred
by failing to record the sidebar conferences. But he has failed to demonstrate any

prejudice from the trial court’s failure to record the sidebar conferences, because he

has not presented an App.R. 9(C) statement indicating information left out of the

court’s summaries that would benefit him in our review of the issues raised.

       {¶84} Accordingly, the error was harmless, and we overrule the fourth
assignment of error.

                   Ineffective Assistance of Trial Counsel
       {¶85} Simmons argues in his second assignment of error that he was
deprived of his right to the effective assistance of trial counsel. In support of his

                                                23
                     OHIO FIRST DISTRICT COURT OF APPEALS



claim, Simmons points to defense counsel’s failure (1) to object to Papke’s cell-tower

locator testimony, (2) to call a cell-site engineer as a witness, (3) to object to the

prosecutor’s references to Simmons as the “offender” during closing argument, (4) to

renew the Crim.R. 29 motion for acquittal at the close of all evidence, and (5) to

request that sidebars be recorded.

       {¶86} To prevail on his claim that trial counsel was ineffective, Simmons
must demonstrate that trial counsel’s performance was both deficient and

prejudicial.   Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373

(1989).

       {¶87} With respect to deficiency, Simmons must show that his counsel’s
performance “fell below an objective standard of reasonableness.” Strickland at 688.

Our scrutiny of defense counsel’s performance must be highly deferential, as

“counsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id. at 690.

       {¶88} Counsel’s failure to make objections is not, by itself, enough to sustain
a claim of ineffective assistance of counsel. State v. Conway, 108 Ohio St.3d 214,

2006-Ohio-791, 842 N.E.2d 996, ¶ 168; State v. Holloway, 38 Ohio St.3d 239, 244,

527 N.E.2d 831 (1988).

       {¶89} Paula Papke’s Testimony.             Simmons argues that trial counsel

was ineffective for failing to object to testimony from the state’s witness Paula Papke

on the grounds that she was improperly testifying to hearsay evidence and was

improperly testifying as an expert.

       {¶90} The state called Cincinnati Bell employee Papke as custodian of
Simmons’s cell-phone records to lay the appropriate foundation for the admission of

these records under the business-records exception to the hearsay rule.          These

records included for each subscriber a report detailing for each communication (1)

                                             24
                    OHIO FIRST DISTRICT COURT OF APPEALS



the originating number, (2) the receiving number, (3) the type of communication,

voice or text, and whether that communication connected, (4) the date and time of

the communication, (5) the cell tower used by the subscriber, (6) the duration of the

communication, (7) the serial number and international mobile subscriber identity

assigned to the device, and (8) roaming information. Simmons’s cell-phone records

also included a separate report containing the content of his text messages, the cell-

phone number of the originating and receiving parties, and the date and time of

those messages.

       {¶91} Simmons’s cell-phone records were admitted under the business-
record exception pursuant to Papke’s testimony authenticating them. See State v

Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057. Simmons does not

challenge the propriety of that determination on appeal.

       {¶92} But the state also elicited testimony from Papke regarding the
interpretation of those records in conjunction with cell-tower-location information.

Papke explained that the signal from a cell phone is transmitted from a cell tower

and that the “engineering office” at Cincinnati Bell had determined that the signal is

typically transmitted from the tower closest to the person placing the

communication.

       {¶93} Using the cell-tower-location data from Simmons’s communications
and a map of the cell-tower locations, Papke attempted to locate Simmons and

demonstrate that Simmons had travelled to Mt. Auburn during the time period

preceding the shooting. When Simmons last communicated with Daniel about 15

minutes before the shooting, his cell-phone signal had pinged off cell-phone towers

near Mulberry Street. Simmons then made and received communications from

another cell-phone user, again pinging off cell-phone towers near Mulberry Street.

Simmons’s cell phone was not used during a 15 minute window, approximately the

eight minutes before the shooting and the seven minutes after the shooting, and

                                             25
                     OHIO FIRST DISTRICT COURT OF APPEALS



therefore, did not ping off of any towers during this time. But when he used the cell

phone after the shooting had taken place, his cell-phone signal had pinged off

another cell-phone tower near Mulberry Street.

       {¶94} Papke conceded, however, that based on her records, the signal from
Simmons’s cell phone had never pinged off cell-tower 475, the one closest to the

scene of the shooting on Mulberry Street, and that she could not say that Simmons’s

cell phone had been on Mulberry Street that evening. And she admitted that in the

time near the shooting his cell-phone signal pinged off of the cell tower that usually

appeared in his cell-tower data records.

       {¶95} Defense counsel did not object to Papke’s cell-tower-locator testimony,
which Simmons argues was inadmissible hearsay and inadmissible expert testimony.

Defense counsel, however, did cross-examine Papke on this testimony as if she were

an expert. Simmons argues that defense counsel’s failure to object to this testimony

was prejudicial because the state used it to attempt to place Simmons at the scene of

the shooting.

       {¶96} Tactical Reasons to Not Object. Simmons argues that defense
counsel’s performance was deficient for failure to object to the testimony that the

cell-phone signal usually pings off of the closest cell tower, but we disagree. Even if

this testimony was inadmissible on hearsay grounds, a question that we do not need

to answer, defense counsel used Papke’s cell-tower-locator testimony to emphasize

that the state could not place Simmons on Mulberry Street before, during or after the

shooting, because his cell phone did not ping off of the closest tower to that street.

       {¶97} Moreover, the record demonstrates that defense counsel was familiar
with Papke as an “expert witness” from other cases and was able to effectively cross-

examine her. We conclude, therefore, that defense counsel did not object to Papke’s

testimony for tactical reasons.



                                               26
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶98} Failure to Call a Defense Expert. Simmons further attacks
defense counsel’s performance based on his failure to call a cell-site engineer as an

expert witness. He recognizes that the failure to call an expert could be considered

tactical, because an expert might uncover evidence that would further incriminate

the defendant. Simmons claims, however, that risk was not present in this case

because the cell-tower-locator evidence is “never reliable.” But nothing in the record

supports this bald assertion. “[P]ure[] speculation” is not sufficient to demonstrate

an ineffective assistance of counsel claim. See State v. Madrigal, 87 Ohio St.3d 378,

390-391, 721 N.E.2d 52 (2000).

       {¶99} Further, as we have already discussed, Papke’s testimony did not place
Simmons on Mulberry Street at the time of the shooting. Defense counsel effectively

cross-examined Papke as if she were an expert, exposing the weakness in her

testimony. On the state of this record, Simmons has failed to overcome the strong

presumption that counsel’s failure to call an expert witness was a strategic decision.

Thus, we conclude that defense counsel’s performance was not deficient based on his

failure to call an expert and to instead rely on the cross-examination of Papke. See

State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993), citing State v.

Thompson, 33 Ohio St.3d 1, 10-11, 514 N.E.2d 407 (1987).

       {¶100} Failure to Demonstrate Prejudice. Finally, even assuming that
the advocacy of defense counsel was deficient, Simmons cannot show that he was

prejudiced. We cannot say that but for this evidence, the result of the trial would

have been different. Strickland, 466 U.S. at 687, 104 S.Ct. 2051, 80 L.Ed.2d 674;

Bradley, 42 Ohio St.3d at 141-142, 538 N.E.2d 373. Even if the cell-tower-locator

evidence had been excluded, there was more than sufficient evidence from which the

jury could have concluded that Simmons had committed the crimes at issue,

including Daniel’s testimony, the content and timing of Simmons’s text messages to

and from Daniel and Kelsey, Kelsey’s testimony that Simmons had apologized for

                                             27
                       OHIO FIRST DISTRICT COURT OF APPEALS



shooting Thompson, and Coffey’s testimony, which provided some corroboration of

Daniel’s testimony.

       {¶101} Other Alleged Ineffectiveness of Counsel. Simmons also
contends that counsel was deficient for failing to object to the prosecutor’s six

references to him as the “offender” during closing argument. But Simmons cannot

demonstrate the requisite prejudice to establish his claim, because the record does

not support a determination that but for these remarks, the result of the trial would

have been different. Strickland at 687; Bradley at 141-142.

       {¶102} Next, Simmons contends that he was deprived of his right to the
effective assistance of counsel because counsel did not renew the Crim.R. 29 motion

for acquittal at the close of all evidence. But any error in counsel’s performance was

not prejudicial where, as discussed more fully under the sixth assignment of error,

the state presented sufficient evidence of each element of the offenses and thus, the

motion would have been overruled.

       {¶103} Finally, Simmons challenges counsel’s performance on the ground that
counsel failed to request that the trial court record all sidebar conferences. But

Simmons cannot demonstrate prejudice from trial counsel’s failure to object because

he accepts the trial court’s summary of the unrecorded proceedings and cannot show

that had the conferences been recorded, the outcome of the trial would have been

different.

       {¶104} Simmons has failed to demonstrate that he was deprived of his right to
the effective assistance of counsel at trial. Accordingly, we overrule the second

assignment of error.

             Sufficiency and Manifest Weight of the Evidence
       {¶105} In his sixth and seventh assignments of error, Simmons argues that his
convictions for murder and having weapons under a disability were not supported by



                                             28
                    OHIO FIRST DISTRICT COURT OF APPEALS



sufficient evidence and were against the manifest weight of the evidence.         We

disagree.

       {¶106} Sufficiency of the Evidence.              In reviewing a record for

sufficiency, we must determine whether, after viewing the evidence in the light most

favorable to the state, any rational trier of fact could have found the essential

elements of the offense proved beyond a reasonable doubt. State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991).

       {¶107} Simmons argues that the state failed to prove that he was Thompson’s
shooter because no fingerprints or DNA connected him to the murder and no gun

was recovered. He further contends that Daniel’s testimony was unreliable and that

evidence supported his theory that Kelsey’s family had orchestrated Thompson’s

murder to avenge her.     But the state charged Simmons as a principal or as a

complicitor with respect to Thompson’s murder and, therefore, the state was not

required to prove that Simmons had actually pulled the trigger to convict him.

       {¶108} Further, Simmons’s codefendant, Daniel, was at the scene of the
shooting and identified Simmons as the shooter. His testimony indicated that he

and Simmons had carried out a plan to ambush Thompson, and that testimony was

corroborated by the cell-phone records, which contained the content of the text

messages and the timing of the text messages and cell-phone calls between him,

Kelsey and Simmons. Kelsey testified that Simmons had implicitly admitted to her

that he had shot Thompson when he apologized for what happened in the stairwell.

Further, Simmons stipulated to the prior requisite conviction for the offense of

having weapons under a disability.

       {¶109} After viewing this evidence in the light most favorable to the state, we
hold that the state provided sufficient evidence to support the convictions for murder

and having weapons under a disability.



                                             29
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶110} Weight of the Evidence. In reviewing a challenge to the weight of
the evidence, this court must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and

created a manifest miscarriage of justice such 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); State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶111} Simmons was not able to diminish the evidentiary value of the cell-
phone evidence that exposed the content of his text messages and his cell-phone call

history and that corroborated Daniel’s and Kelsey’s testimony. We note that the

credibility of the witnesses is primarily for the trier of fact. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. After our review of

the record, we conclude that the jury did not lose its way and create a manifest

miscarriage of justice in convicting Simmons of the offenses.

       {¶112} Accordingly, we overrule the sixth and seventh assignments of error.

                                     Sentencing
       {¶113} The trial court ordered Simmons to serve consecutively his indefinite
term of life in prison for the murder and his three-year term for the weapons offense.

In his third assignment of error, Simmons challenges the imposition of the

consecutive terms on the ground that the trial court failed to make the findings

required by R.C. 2929.14(C)(4).

       {¶114} In Ohio, there is a statutory presumption in favor of concurrent
sentences for most felony offenses. R.C. 2929.41(A). The trial court may overcome

this presumption by making the statutory, enumerated findings set forth in R.C.

2929.14(C)(4). State v. Bonnell, Slip Opinion No. 2014-Ohio-3177, ¶ 23. This statute

requires the trial court to undertake a three-part analysis. State v. Alexander, 1st

Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 15.

                                               30
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶115} To that end, the court must find that consecutive sentences are
necessary to protect the public from future crime or to punish the offender. Id. at ¶

15. The court must also find that consecutive sentences are not disproportionate to

the offender’s conduct and to the danger the offender poses to the public.           Id.

Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18,

or while under postrelease control for a prior offense; (b) at least two of the multiple

offenses were committed as part of one or more courses of conduct, and the harm

caused by two or more of the offenses was so great or unusual that no single prison

term for any of the offenses committed as part of any of the courses of conduct would

adequately reflect the seriousness of the offender’s conduct; or (c) the offender’s

criminal history demonstrates that consecutive sentences are necessary to protect

the public from future crime by the offender. Id., citing R.C. 2929.14(C)(4).

       {¶116} The trial court is not required to articulate reasons to support its
findings, Bonnell at syllabus, or “to give a talismanic incantation of the words of the

statute.” Id. at ¶ 37. However, the record must be sufficient for a reviewing court to

determine that the court has engaged in the required sentencing analysis and has

made the findings required by the statute. Id. at ¶ 36; Alexander at ¶ 16.

       {¶117} In Bonnell, the Ohio Supreme Court clarified where the trial court
must make the R.C. 2929.14(C)(4) findings.         A trial court must announce the

requisite consecutive findings at the sentencing hearing, and the court must

incorporate those findings into the sentencing entry. Bonnell, 2014-Ohio-3177, at

syllabus. The sentencing entry is the document contemplated by Crim.R. 32(C). See

id. at ¶ 29-31; State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163,

¶ 17, modified in part on other grounds, State v. Lester, 130 Ohio St.3d 303, 2011-

Ohio-5204, 958 N.E.2d 142.

                                              31
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶118} This court previously held in Alexander that the trial court’s inclusion
of the consecutive-sentence findings in a sentencing worksheet, standing alone, was

sufficient to comply with the legal requirements. We note that Bonnell has sub

silentio overruled this portion of Alexander.

       {¶119} Simmons argues that the trial court’s decision to impose consecutive
sentences was both contrary to law and an abuse of discretion. But we no longer

employ an abuse of discretion standard when reviewing sentences. See, e.g., State v.

White, 2013-Ohio-4225, 997 N.E.2d 629 (1st Dist.). Instead, this court employs the

standard of review set forth in R.C. 2953.08(G), which provides that a reviewing

court may vacate consecutive sentences only if “it clearly and convincingly finds” that

(1) the record does not support the trial court’s R.C. 2929.14(C)(4) sentencing

findings or (2) the sentence is otherwise contrary to law. Bonnell at ¶ 28. The trial

court’s imposition of consecutive terms of imprisonment without making the

requisite findings at the sentencing hearing renders the sentence clearly and

convincingly contrary to law and, as a result, the sentence must be vacated and the

cause remanded to the trial court for resentencing. Bonnell at ¶ 37.

       {¶120} In this case, at the sentencing hearing, the trial court made findings
that duplicated the language set forth in subdivisions (b) and (c) of R.C.

2929.14(C)(4), but the court skipped the initial two steps of the statutory analysis,

and failed to make all of the findings required by the statute. The trial court also

failed to incorporate any of the necessary findings into its judgment entry. We note

that if the trial court had failed only to incorporate the statutorily mandated findings

made at the sentencing hearing into the sentencing entry, then that clerical mistake

could be corrected by a nunc pro tunc entry. Bonnell, 2014-Ohio-3177, at ¶ 30.

       {¶121} Because the record does not demonstrate that the trial court engaged
in the required analysis and selected the appropriate statutory criteria before

ordering sentences to be served consecutively, the sentence imposing consecutive

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terms of imprisonment is clearly and convincingly contrary to law and must be

vacated. Bonnell at ¶ 37.

       {¶122} Accordingly, we sustain the third assignment of error.

                                       Conclusion
       {¶123} We affirm the trial court’s findings of guilt. But because the trial court
failed to make the requisite findings for consecutive sentences and to incorporate

those findings into its judgment entry, we vacate the sentences and remand the cause

to the trial court for resentencing.

                                                                  Judgment accordingly.

HILDEBRANDT and HENDON, JJ., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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