[Cite as State v. Lewis, 2011-Ohio-1411.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :            C.A. CASE NO. 23850

v.                                                      :            T.C. NO.   09 CR 1716/01

THERON E. LEWIS                              :               (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellant                  :

                                                        :

                                            ..........

                                            OPINION

                         Rendered on the         25th       day of      March     , 2011.

                                            ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560 and LAURA M. WOODRUFF, Atty. Reg.
No. 0084161, Assistant Prosecuting Attorneys, 301 W. Third Street, 5th Floor, Dayton, Ohio
45422
      Attorneys for Plaintiff-Appellee

DARRELL L. HECKMAN, Atty. Reg. No. 0002389, One Monument Square, Suite 200,
Urbana, Ohio 43078
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

        {¶ 1} Theron Lewis was convicted after a jury trial in the Montgomery County Court

of Common Pleas of two counts of murder with a firearm specification, two counts of

felonious assault with a firearm specification, and one count of having weapons while under
                                                                                          2

disability. All of the counts stemmed from the shooting of Isaac Gibson. The murder

counts were merged, and Lewis was sentenced to an aggregate term of twenty-eight years to

life.

        {¶ 2} Lewis appeals from his convictions and sentence. For the following reasons,

the trial court’s judgment will be affirmed in part, reversed in part, and remanded for

resentencing.

                                                 I

        {¶ 3} During the afternoon of April 25, 2009, after the funeral of Thomas (“Tom

Tom”) Watson, a 25-year-old murder victim, several hundred people gathered in and outside

the home of Altheadore Watson at 1809 West Riverview Avenue in Dayton. The residence

was a few houses west of the corner of West Riverview and North Euclid Avenue, and an

alley ran behind West Riverview homes. The majority of the mourners congregated outside

in the alley, along North Euclid, and near the West Riverview and North Euclid intersection.

 Among the mourners were Isaac (“Quan”) Gibson; Gibson’s father, Anthony (“Tink”)

Snowden, Sr.; Gibson’s brother, Anthony (“Man Man”) Snowden, Jr.; and Gibson’s cousin,

Michelle Thomason. Also present were Fabian (“Fabo”) Gentry; Keith Watson, Gibson’s

cousin by adoption; Benjamin (“Bennie”) Faircloth; and Theron (“T-Streets”) Lewis.

        {¶ 4} The sequence of events leading to the shooting of Isaac Gibson is somewhat

unclear. However, at some point before 7:00 p.m., an altercation began between Gibson, on

one side, and Gentry and Faircloth, on the other. Upon being told of the fight, Snowden,

Sr., Thomason, and Snowden, Jr. each went to the commotion. The Snowdens advised

Gibson to leave, and they attempted to guide Gibson toward his vehicle, which was parked
                                                                                             3

along the alley behind 1809 West Riverview. As the fight resumed between Gibson and

Faircloth, Keith Watson retrieved a semiautomatic weapon – which Thomason, and the

Snowdens described as likely a 9mm, .40 caliber, or .45 caliber – and attempted to hit

Gibson with it. Anthony Snowden, Sr. intercepted Watson and grabbed Watson’s arm.

Watson fired his weapon into the ground.

       {¶ 5} Almost immediately thereafter, Lewis pointed a small revolver (which

Thomason described as a .38 caliber weapon) at Gibson and shot him in the left upper

abdomen. Gibson collapsed against the car and fell to the ground. Thomason, a bouncer at

a bar, grabbed Lewis and threw him against a fence; Lewis dropped his weapon.

Thomason, along with the Snowdens and someone named Rhonda, ran to Gibson.

       {¶ 6} At approximately 7:00 p.m., Dayton police officers were dispatched to 800

North Euclid on a report of a shooting. Paramedics transported Gibson to Miami Valley

Hospital, where he was reported dead. Thomason had left before the police arrived, and

Snowden, Sr. left after Gibson was removed to the hospital. No one at the scene – including

Snowden, Jr., who was questioned at the Safety Building that evening – identified Gibson’s

shooter to the police. The police recovered one .40 caliber Smith & Wesson bullet casing

from the alley. The Montgomery County Coroner’s Office recovered a .38 caliber bullet

from Gibson’s spine.

       {¶ 7} On May 13, 2009, Thomason, Snowden, Jr., and Snowden, Sr. provided

statements to Detective Gaier about the shooting. Thomason and Snowden, Jr. identified

Lewis as Gibson’s shooter. All three testified that they did not immediately talk to the

police, because they were considering retaliation against Lewis themselves, i.e., killing him.
                                                                                              4

       {¶ 8} After a trial, a jury convicted Lewis of two counts of murder, two counts of

felonious assault, and having weapons while under disability. The trial court sentenced

Lewis to five years for each of the felonious assault counts, to be served concurrently; fifteen

years to life for both murder counts, to be served consecutively to the felonious assault

counts; five years for having weapons while under disability, to be served consecutively to

the other counts; and three years of actual incarceration for the firearm specifications (which

were merged), to be served consecutively to and prior to the other terms of imprisonment.

The court merged the two murder counts and all of the firearm specifications. Lewis’s

aggregate sentence was 28 years to life.

       {¶ 9} Lewis appeals, raising seven assignments of error.

                                                   II

       {¶ 10} Lewis’s first assignment of error states:

       {¶ 11} “THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶ 12} In his first assignment of error, Lewis claims that his convictions were against

the manifest weight of the evidence.

       {¶ 13} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Wilson, Montgomery App. No. 22581, 2009-Ohio-525,

¶12. When evaluating whether a conviction is contrary to the manifest weight of the

evidence, the appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider witness credibility, and determine whether, in resolving
                                                                                              5

conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, quoting State v. Martin (1983), 20 Ohio

App.3d 172, 175; State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶44.

       {¶ 14} Because the trier of fact sees and hears the witnesses at trial, we must defer to

the factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses. State v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288. However, we

may determine which of several competing inferences suggested by the evidence should be

preferred. Id.

       {¶ 15} The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175.

       {¶ 16} Lewis argues that the Snowdens’ and Thomason’s testimony was not credible

and that their testimony was not entitled to any weight. He emphasizes that there was no

physical evidence tying him to the murder, that there was no evidence of a motive for the

shooting, and that all three witnesses contemplated killing him in retaliation for the shooting.

       {¶ 17} Upon review of the record, we cannot conclude that the jury “lost its way”

when it convicted Lewis. It is true that there were discrepancies between Thomason’s and

the Snowdens’ testimony. For example, the testimony varied as to whether Keith Watson

retrieved a gun from his truck or from his pocket, whether Watson fired one or two shots

into the ground, who walked Gibson toward his car, when Watson tried to hit Gibson with a
                                                                                            6

gun, and the age of the children who looked for Lewis’s weapon after the shooting, among

other things.   In addition, the jury could have reasonably questioned why these three

witnesses, allegedly without conferring with each other, elected to speak with Detective

Gaier on the same date more than two weeks after the shooting

       {¶ 18} Nevertheless, Thomason’s and the Snowdens’ testimony regarding the overall

events was generally consistent: A fight broke out between Gibson and Gentry and Faircloth,

Gibson was ushered to his car, the fight resumed, Watson obtained a semiautomatic gun and

shot it into the ground while Snowden, Sr. tried to restrain him, and Lewis pointed a revolver

at Gibson and shot him. The bullet retrieved from Gibson’s spine was a different caliber

than the shell casing discovered at the scene, which corroborated the witnesses’ testimony

that two different guns were fired there. And, the fact that the police did not find a .38

caliber shell casing supported the testimony that Gibson had been shot with a revolver,

which would not have ejected the empty casing. The jury did not act unreasonably when it

apparently chose to believe the testimony that Lewis had shot Gibson.

       {¶ 19} Lewis’s first assignment of error is overruled.

                                                 III

       {¶ 20} Lewis’s second assignment of error states:

       {¶ 21} “THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AS THE

RECORDING SYSTEM IN USE LEFT SERIOUS GAPS IN THE TRANSCRIPT.”

       {¶ 22} In his second assignment of error, Lewis claims that his right to due process

was violated, because there were numerous areas in the trial transcript that were

“indiscernible” and, consequently, the transcript is incomplete.        Lewis states: “It is
                                                                                                 7

unreasonable and a denial of Due Process of Law to require appellant to prove what

evidence convicted him. The State hires the Prosecutor, the Judge, the court reporters and

legal assistants. In a homicide case the State should be required to make a complete

transcript. *** Where there is a structural decision by a court not to use a means of recording

reasonably calculated to give a full transcript, the court has committed reversible error.”

Lewis clarifies in his reply brief that he believes that the court’s use of a video recording

system, in lieu of a court reporter, constitutes structural error, which requires no proof of

prejudice.

       {¶ 23} “The significance of structural error, compared and contrasted with plain

error, is laid out in Johnson v. U.S. (1997), 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718.

Plain error is error that was not brought to the attention of the trial court, but which is both

sufficiently plain and sufficiently prejudicial as to merit reversal on appeal despite the fact

that it was not brought to the attention of the trial court. Structural error is error that affects

the entire structural framework of the proceedings to such an extent that harmless-error

analysis is inappropriate; i.e., prejudice is presumed. Id., at 468. Of course, an error might

satisfy both tests, so that the error would be both plain and structural.” State v. Ealy,

Montgomery App. No. 23391, 2010-Ohio-4531, ¶38.

       {¶ 24} While our review of the trial transcript has revealed multiple places where the

record is indecipherable (Lewis says there are 84 such instances), particularly during jury

selection and bench conferences, the deficiencies in the transcript as a whole are not so

egregious or confusing so as constitute structural error in the trial or prevent appellate

review. And, although some of the side bar discussions were completely inaudible, Lewis
                                                                                                                               8

has not identified any particular portion of the transcript where the “indiscernible” speech

prevented him from establishing prejudicial error.

         {¶ 25} Lewis’s appellate counsel argued before us that the General Division’s

decision to use electronic recording, rather than a court reporter, removed the human element

from the recordation of the record and resulted in this case (and will result in future cases) in

an inability to produce a record on appeal that manifests all of the errors that were present.

         {¶ 26} We are not unaware that the nonproduction of the appellate record, which is

not caused by the defendant’s misconduct, may require reversal of the underlying

conviction.1 State v. Jones (1994), 71 Ohio St.3d 293, 297. See, also, e.g., Perez v. State

(Tex.Crim.App., 1992), 824 S.W.2d 565; State v. Osman (Wash., 2010), 229 P.3d 729;

Bellows v. State (Nev., 1994), 871 P.2d 340, 342. However, a defendant may only be

entitled to a new trial “if, after all reasonable solutions are exhausted, an appellate record

could not be complied.” Jones, 71 Ohio St.3d at 298. See, also, e.g., Commonwealth v.

Harris (Mass., 1978), 379 N.E.2d 1073.

         {¶ 27} The burden was on Lewis to provide a complete record, and “[i]t is well

settled that when transcripts contain inaudible portions or omissions, a defendant must

attempt to reconstruct the trial record on appeal, through App.R. 9(E) [or] otherwise, and

demonstrate prejudice resulting from the incompleteness.” State v. Arment, Montgomery

App. No. 19459, 2003-Ohio-4089, ¶39 (addressing a transcript with inaudible portions when

the trial was conducted in a courtroom with recording equipment rather than a court


             1
             Some states even incorporate the “impossibility of making a record” as a specific ground for a new trial. See, e.g.,
   Tex.R.App.P. 34.6(f); Wash.R.App.L.J. 5.4 (Loss or Damage of Electronic Record).
                                                                                             9

reporter).

        {¶ 28} App.R. 9 provides a process by which a statement of the evidence may be

created to cure the defect of the lack of an entire transcript, let alone individual defects.

This is one of the “reasonable solutions” referred to in Jones. Chardon v. Bulman, Geauga

App. No. 2007-G-2811, 2008-Ohio-6769, ¶76. Specifically, App. R. 9(E) provides for

procedures to be followed to correct or modify the record if anything material is omitted

from the record by error or accident. And, pursuant to App. R. 9(C), Lewis’s counsel could

have prepared a statement of the indiscernible portions of the transcript “from the best

available means, including the appellant’s recollection,” and submitted the statement to the

trial court in order to settle any objections from the opposing party. See State v. Thompson,

Montgomery App. No. 22984, 2010-Ohio-1680, ¶235. In the alternative, Lewis could have

sought, with input from the State, an agreed statement regarding the indiscernible portions of

the record. Id.

        {¶ 29} Moreover, the problems complained of by Lewis are certainly not unique to

an audio and/or video recording system. In fact, the Jones case involved the destruction of

notes of a court reporter. Similarly, in Knapp v. Edwards Laboratories (1980), 61 Ohio

St.2d 197, 199, the court reporter’s notes from the trial were not transcribed due to the court

reporter’s extended illness. None of this is to understate the initial responsibility of all

those involved in a trial – judge, judicial assistant/court reporter, prosecutor, and defense

attorney – to ensure that a record exists for an appellate court to review.

        {¶ 30} The second assignment of error is overruled.

                                                   IV
                                                                                               10

       {¶ 31} “THE TRIAL COURT ERRED IN FAILING TO PROTECT DEFENDANT

FROM PROSECUTORIAL MISCONDUCT.”

       {¶ 32} In his third assignment of error, Lewis contends that the State engaged in

prosecutorial misconduct on four occasions.

       {¶ 33} In reviewing claims of prosecutorial misconduct, the test is “whether remarks

were improper and, if so, whether they prejudicially affected substantial rights of the

accused.” State v. Jones, 90 Ohio St.3d 403, 420, 2000-Ohio-187. “The touchstone of

analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” Id., quoting

Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78. Where it is clear

beyond a reasonable doubt that a jury would have found the defendant guilty even absent the

alleged misconduct, the defendant has not been prejudiced and his conviction will not be

reversed. See State v. Loza (1994), 71 Ohio St.3d 61, 78, overruled on other grounds. We

review the alleged wrongful conduct in the context of the entire trial. State v. Stevenson,

Greene App. No. 2007-CA-51, 2008-Ohio-2900, ¶42, citing Darden v. Wainwright (1986),

477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144.

       {¶ 34} First, Lewis challenges the prosecutor’s statements to prospective jurors

during voir dire concerning the firearm specifications. Specifically, the prosecutor stated:

       {¶ 35} “MR. FRANCESCHELLI: *** Does everyone [under]stand that? So you’ll

have to make a finding – if you find the defendant is guilty of those charges, you’ll also

make a finding whether or not he used a firearm. It’s that simple. Okay? Anyone here

who doesn’t understand that?

       {¶ 36} “PROSPECTIVE JURORS: No (in unison).
                                                                                             11

       {¶ 37} “MR. FRANCESCHELLI: Now, I share that with you to ask you this

question: Do you recognize that the people do not have to bring the firearm into the

courtroom? Anyone here who doesn’t get that? Think about that for a second. The

people, we don’t have to bring the firearm into the courtroom. If a person used the firearm

and shot someone, we don’t have to bring the firearm to prove firearm specification.

Anyone here confused by that or doesn’t understand that? Just raise your hand.

       {¶ 38} “PROSPECTIVE JURORS: (No audible response.)

       {¶ 39} “MR. FRANCESCHELLI: Okay. And the reason is, obviously, we don’t

reward people for shooting someone and getting rid of a firearm.

       {¶ 40} “MR. CALAWAY: Objection.

       {¶ 41} “MR. FRANCESCHELLI: It’s that simple.

       {¶ 42} “THE COURT: All right. I’m going to overrule it, but that’s as far as you’re

going.” (Tr. 41-42.) (Emphasis added).

       {¶ 43} Lewis asserts that the prosecutor’s statement was “an attempt to lessen the

burden of proof and blame the defendant for the State’s lack of evidence.” The State

responds that the prosecutor had addressed the burden of proof during voir dire (as did the

trial court in its instructions), leaving no doubt that the State was required to prove its case

beyond a reasonable doubt. The State further argues that it could, in fact, prove the firearm

specification without producing the weapon, and there is evidence that Lewis “concealed or

destroyed” the firearm because it was not found at the scene of the shooting.

       {¶ 44} As an initial matter, we do not interpret the prosecutor’s statement as an

attempt to reduce its burden of proof. And, the jury was repeatedly informed that the State
                                                                                        12

was required to prove its case beyond a reasonable doubt.

       {¶ 45} In addition, as acknowledged by Lewis, the State correctly asserts – and the

prosecutor correctly stated during voir dire – that the prosecution was not required to

produce the weapon in order to prove the firearm specifications. Circumstantial evidence

and direct evidence have equivalent probative value. State v. Jenks (1991), 61 Ohio St.3d

259, 272, superseded on other grounds by constitutional amendment as stated in State v.

Smith (1997), 80 Ohio St.3d 89; State v. Reynolds, Montgomery App. No. 19780,

2003-Ohio-7245, ¶17. Consequently, the State could prove the firearm specification solely

on the basis of circumstantial evidence; the prosecutor could have reasonably informed the

prospective jurors of that fact. See State v. Nicely (1988), 39 Ohio St.3d 147, 151.

       {¶ 46} However, the prosecutor’s proffered reason for not requiring the weapon to be

produced, i.e., that “we don’t reward people for shooting someone and getting rid of a

firearm,” was objectionable. Lewis was not charged with tampering with evidence, and no

evidence was submitted at trial to support the contention that Lewis “got rid of” or

“concealed or destroyed” the firearm. The mere fact that the gun was not recovered at the

scene is insufficient to establish tampering with evidence.      State v. Spears, 178 Ohio

App.3d 580, 2008-Ohio-5181, ¶24 (the absence of a weapon at the scene of a shooting and

defendant’s own statements that he “threw the gun away” were insufficient to establish

tampering with evidence). Nevertheless, in this case, the felonious assault and murder

offenses arose out of the shooting death of Gibson; there was overwhelming evidence that an

operable firearm was used in the commission of the offenses. Accordingly, we find the

prosecutor’s statements to be harmless beyond a reasonable doubt.
                                                                                             13

       {¶ 47} Lewis also challenges various statements and questions by the prosecutor,

which allegedly were intended to appeal to the passions of the jury. We will address them

together.

       {¶ 48} A prosecutor may not make statements that are “so inflammatory as to render

the jury’s decision a product solely of passion and prejudice against the appellant.” State v.

Williams (1986), 23 Ohio St.3d 16, 20. “Where it appears that prosecutorial comments

constituted an invitation to the jury to go beyond the evidence or were so flagrant as to incite

the passions or prejudice of the jury, and thereby deny the accused a fair trial, prejudicial

error may inhere.” State v. Slagle (June 14, 1990), Cuyahoga App. No. 55759, citing State

v. Price (1979), 60 Ohio St.2d 136, 140.

       {¶ 49} Lewis challenges the prosecutor’s comments during opening and closing

arguments that these “senseless killings” are “all too common,” that killings have occurred

“over and over,” and that Gibson’s death was “another statistic in Dayton, Ohio.” He also

claims that the prosecutor’s statements during opening statement and closing argument that

“this stops here” was an appeal to the community to stop crime, rather than determine

Lewis’s guilt based on the evidence. Specifically, the prosecutor concluded his opening

statement, saying:

       {¶ 50} “This was a senseless killing, ladies and gentleman.          It was a horrible

tragedy. Again, all too common. This stops here. We are confident that you will return a

verdict of guilty on all charges.”

       {¶ 51} Similarly, the same prosecutor concluded his closing argument, stating:

       {¶ 52} “Ladies and gentlemen of the jury, you have in your hands the opportunity to
                                                                                            14

hold this defendant accountable for his actions, accountable for shooting another human

being, taking his life. This stops here.

       {¶ 53} “We are confident you will return a verdict of guilty on all charges.”

       {¶ 54} Defense counsel did not object to the prosecutor’s comments. Accordingly,

we review them for plain error. Plain error may be noticed if a manifest injustice is

demonstrated.     Crim.R. 52(B); State v. Herrera, Ottawa App. No. OT-05-039,

2006-Ohio-3053. In order to find a manifest miscarriage of justice, it must appear from the

record as a whole that but for the error, the outcome of the trial clearly would have been

otherwise. State v. Long (1978), 53 Ohio St.2d 91.

       {¶ 55} In this case, Gibson’s murder occurred following the funeral for another

young man who had been murdered. In addition, Thomason and Snowden, Jr. both testified

that they had planned on “retaliating” for Gibson’s death.        By commenting that such

murders are “all too common,” the prosecutor may have been commenting, in general terms,

on the context in which Gibson’s death occurred. On the other hand, whether murder is

statistically common is not relevant to whether the evidence proves beyond a reasonable

doubt that a particular defendant murdered a particular victim.

       {¶ 56} The State asserts that “this stops here” meant that “a finding of guilt would

stop Theron Lewis from committing any more crimes.” It is questionable whether the jury

would have interpreted the prosecutor’s statements as such. Rather, it is just as plausible

that the jury interpreted “this stops here” as a call to help stop the crime spree in Dayton by

convicting Lewis. Indeed, Thomason and Snowden, Jr. had both indicated a desire to

retaliate against Lewis for the murder; the prosecutor’s remarks could have been construed
                                                                                          15

as a warning that Gibson’s family might murder Lewis if the jury did not convict him, or that

the jury, as a voice of the community, must send a message that violence – such as the death

of Thomas Watson, the shooting of Gibson at Watson’s funeral, and the contemplated

retaliation against that shooting – must “stop here.”        Accordingly, the prosecutor’s

statement arguably asked the jury to go beyond the evidence and convict Lewis to “stop” the

“all too common” murders in Dayton and out of fear of another one if Lewis were not

convicted.

       {¶ 57} Lewis also claims that the prosecutor engaged in misconduct when he asked

Thomason the following question during redirect examination: “Tell this jury what it was

like when Isaac was shot by that defendant and you had to hold him in your arms as he died

in your arms. Tell that jury what that was like.” Defense counsel also did not object to this

question.

       {¶ 58} Lewis claims that the prosecutor’s question was asked “solely to arouse the

sympathy of the jury and is highly improper.” The State responds that the question was

relevant and was asked in response to cross-examination about Thomason’s failure to

immediately report what she knew about Gibson’s murder to the police.

       {¶ 59} The prosecutor’s question about how Thomason felt to have Gibson die in her

arms did not ask Thomason to explain why she failed to promptly go to the police with

information about Gibson’s death, and it would not have reasonably elicited such a response.

 Defense counsel’s cross-examination about Thomason’s failure to immediately talk with

the police did not open the door to questions about her feelings while Gibson was dying. In

short, the prosecutor’s question was not relevant to any issue in the case, and it was
                                                                                            16

apparently intended to play on the sympathy of the jury.         The question was therefore

improper.

       {¶ 60} In order for the prosecutor’s improper statements and question to rise to the

level of prosecutorial misconduct, the conduct must have been prejudicial to Lewis.

Viewing the prosecutor’s opening statement, closing argument, and questioning in the

context of the entire trial, we do not conclude that the prosecutor’s improper conduct

affected the outcome of Lewis’s trial. Two eyewitnesses, who were standing in close

proximity to Lewis at the time of the shooting, testified that they saw Lewis shoot Gibson

with a revolver. The State detailed the evidence against Lewis in its opening statement,

closing argument, and rebuttal closing argument, and repeatedly urged the jury to hold Lewis

accountable for his actions. The trial court instructed the jury that counsel’s arguments

were not evidence, and that the jury was to decide the case solely on the evidence presented.

We do not find the prosecutor’s statements to be so egregious that the jury would likely have

disregarded the trial court’s instructions. The prosecutor’s statements and his improper

question to Thomason did not constitute plain error.

       {¶ 61} Lewis’s third assignment of error is overruled.

                                                  V

       {¶ 62} Lewis’s fourth assignment of error states:

       {¶ 63} “THE TRIAL COURT ERRED IN FAILING TO CONDUCT A BATSON

HEARING.”

       {¶ 64} In his fourth assignment of error, Lewis claims that the trial court erred in not

conducting a Batson hearing upon the State’s use of a peremptory challenge against a
                                                                                          17

minority prospective juror.

        {¶ 65} During jury selection in chambers, the following exchange occurred:

        {¶ 66} “THE COURT: *** Okay, now, the State has four challenges. Do you wish

to exercise the first?

        {¶ 67} “MR. FRANCESCHELLI: Yes, Your Honor, with your permission, we’ll

excuse Potential Juror #11.

        {¶ 68} “THE COURT: Number 11, [name of juror]. Any objection?

        {¶ 69} “MR. CALAWAY: No, Your Honor.

        {¶ 70} “THE COURT: All right. And then that’s just based on Batson and ask for

an objection with regard to that.

        {¶ 71} “MR. CALAWAY: Well, I was under the impression with Batson we had to

clear all of the jurors of a certain race out before I could make a Batson –

        {¶ 72} “THE COURT: Okay.

        {¶ 73} “MR. CALAWAY: – (indiscernible – simultaneous speech), Your Honor.

        {¶ 74} “THE COURT: All right. Very well. All right, so [the juror] is excused.”

        {¶ 75} In Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69,

the United States Supreme Court held that the Equal Protection Clause forbids the State

from exercising a peremptory challenge to excuse a juror solely because of that juror’s race.

See State v. Murphy, 91 Ohio St.3d 516, 2001-Ohio-112 (applying Batson). “The Equal

Protection Clause guarantees the defendant that the State will not exclude members of his

race from the jury venire on account of race, or on the false assumption that members of his

race as a group are not qualified to serve as jurors[ .]” Batson, 476 U.S. at 86 (citations
                                                                                            18

omitted).

       {¶ 76} The Supreme Court has set forth a three-step inquiry when the State’s

peremptory challenge has been challenged under Batson. First, the defendant must set forth

a prima facie case of discrimination. To establish a prima facie case of discrimination, “the

defendant must point to facts and other relevant circumstances that are sufficient to raise an

inference that the prosecutor used its peremptory challenge specifically to exclude the

prospective juror on account of his race.” State v. Carver, Montgomery App. No. 21328,

2008-Ohio-4631, ¶48, citing Batson, 476 U.S. at 95. If that occurs, the prosecutor must

state a race-neutral explanation for striking the juror in question. If the prosecutor provides

an explanation, the trial court must determine whether the defendant met his burden of

proving intentional discrimination or whether the prosecutor’s explanation was a pretext.

       {¶ 77} If a party fails to contest a peremptory challenge under Batson, that issue is

waived, except for plain error.        Stewart v. Nazir, Montgomery App. No. 23806,

2010-Ohio-6346, ¶25.      “The reason for application of waiver is that failure to object

deprives the opposing party of the ability to provide a race-neutral explanation for the

peremptory challenge.” Id., citing State v. Ballew, 76 Ohio St.3d 244, 253, 1996-Ohio-81.

       {¶ 78} In the absence of the objection, the trial court has no “blanket obligation” to

conduct an inquiry under Batson. Stewart at ¶28. As we stated in Stewart:

       {¶ 79} “*** While trial judges are responsible for supervising trial proceedings,

adopting a blanket obligation [to conduct a Batson hearing] imposes an unreasonable burden

on trial courts that is not warranted by the case law. If the Supreme Court of the United

States or the Supreme Court of Ohio intended to impose that burden, these courts would not
                                                                                                                                19

require parties to oppose a peremptory challenge and to establish a prima facie case; instead,

the courts would impose the necessity of holding a Batson inquiry every time jurors of a

constitutionally cognizable group are removed.

         {¶ 80} “Furthermore, in the absence of a Batson objection, there is no way to

determine whether the party adverse to the party exercising the peremptory challenge is

opposed to its exercise. For all the trial and appellate courts would know, that party might

be breathing a sigh of relief that the other party had used one of its peremptory challenges to

excuse a potential juror whom both parties regard as unsuitable, thereby permitting the first

party to save its peremptory challenge to deploy against some other potential juror.

         {¶ 81} “We have routinely required the opposing party to timely object to the use of

peremptory challenges. ***” Id. at ¶28-30.

         {¶ 82} Lewis’s counsel failed to object to the State’s use of a peremptory challenge

to excuse the juror in question, and he declined to object when the court expressly asked him

if he wished to do so.                Although counsel’s reason for not objecting was based on a

misunderstanding of the law,2 the court was under no obligation to require counsel to make

a Batson challenge or to conduct a Batson inquiry in the absence of an objection, particularly

when nothing in the record (other than, inferentially, the juror’s race) suggested that the State

was motivated by race in excusing the prospective juror from the jury.

         {¶ 83} The fourth assignment of error is overruled.


             2
               Counsel apparently believed that there needed to be a pattern of discrimination before a Batson challenge could be
   made. However, “[t]he existence of a pattern of potentially discriminatory strikes, while relevant, is not necessary to establish
   either a prima facie case under Batson or to establish an actual violation.” State v. Russell, Montgomery App. No. 23454,
   2010-Ohio-4765, ¶20 (citations omitted).
                                                                                                                             20

                                                                  VI

        {¶ 84} Lewis’s fifth assignment of error states:

        {¶ 85} “THE TRIAL COURT ERRED IN DENYING DEFENDANT EFFECTIVE

CROSS EXAMINATION OF A CRUCIAL DEFENSE WITNESS.”

        {¶ 86} In his fifth assignment of error, Lewis claims that the trial court erred in

denying him the opportunity to cross-examine Thomason about her past criminal behavior,

particularly a charge of burglary.3 Lewis argues that the facts underlying the burglary were

probative of untruthfulness and, therefore, that evidence was relevant to undermine

Thomason’s credibility.

        {¶ 87} During defense counsel’s cross-examination of Thomason, counsel attempted

to ask Thomason about her past criminal convictions, as follows:

        {¶ 88} “Q: Okay. Let’s go back in your past and also, were you ever convicted of

aggravated burglary?

        {¶ 89} “A: Yes, but it dropped when I completed my TLC.

        {¶ 90} “Q: Your intervention in lieu of conviction?

        {¶ 91} “A: Yes.

        {¶ 92} “Q: Okay. And that’s the same thing as with the possession of cocaine?”

        {¶ 93} At this juncture, the State objected, and a lengthy sidebar discussion was

conducted.       Although the transcript of this discussion is partially “indiscernible,” the

prosecutor apparently asserted that Thomason had no felony convictions due to her


            3
              At trial, defense counsel asked Thomason about an aggravated burglary conviction. The State asserts that the charge
  was for burglary, not aggravated burglary, and, on appeal, Lewis refers to the charge as burglary.
                                                                                        21

successful completion of ILC and, accordingly, defense counsel could not inquire about

Thomason’s burglary and cocaine charges. Defense counsel apparently responded that he

was allowed to inquire into a felony conviction and to confront Thomason with the certified

entry if she denied having the conviction. Defense counsel indicated that his LEADS

printout did not show that the charges had been dismissed or that ILC had been completed

successfully.

       {¶ 94} At the conclusion of the discussion, the trial court sustained the objection

citing the evidence rule concerning impeachment upon evidence of conviction of crime,

which is Evid.R. 609. The court informed the jury that, “[u]nder the Rules of Evidence,

[ILC] is the equivalent of an expungement; and so, therefore, she has no conviction if it’s

successful, and we’ve made that determination. So she has no conviction, and that cannot

be brought up.    So, in your deliberations, you cannot use – if you remember that or

whatever, that cannot be used as part of the deliberation.”

       {¶ 95} Lewis agrees that the trial court’s ruling under Evid.R. 609 was

“unobjectionable.” He claims, however, that he should have been permitted to discuss the

underlying facts of the burglary offense under Evid.R. 608, which addresses the use of

specific instances of conduct to attack or support a witness’s character for truthfulness.

Lewis argues that he was not seeking to have Thomason’s conviction introduced, but rather

to demonstrate that she committed acts which constituted a crime and that her credibility

should be questioned.

       {¶ 96} We see no indication in the record that Lewis relied upon Evid.R. 608 during

the sidebar discussion. Because he failed to object at trial on the specific ground raised
                                                                                             22

here, Lewis has waived all but plain error. See State v. Tibbetts, 92 Ohio St.3d 146, 161,

2001-Ohio-132.

       {¶ 97} The admission or exclusion of evidence rests within the sound discretion of

the trial court and will not be disturbed on appeal absent an abuse of that discretion. State v.

Malloy, Clark App. No. 09 CA 92, 2011-Ohio-30, ¶64, citing State v. Sage (1987), 31 Ohio

St.3d 173.

       {¶ 98} The Ohio Rules of Evidence clearly delineate the methods by which a party

may impeach a witness’s credibility. State v. Hurt, 158 Ohio App.3d 671, 2004-Ohio-4266,

¶11, quoting State v. Rodriguez (1986), 31 Ohio App.3d 174, 176. A witness’s credibility

may be attacked, under Evid.R. 609, by evidence that the witness has been convicted of a

crime, or under Evid.R. 608, by evidence of the witness’s character for untruthfulness. Id.

       {¶ 99} Evidence Rule 608(B) states in relevant part: “Specific instances of the

conduct of a witness, for the purpose of attacking or supporting the witness’s character for

truthfulness, other than conviction of crime as provided in Evid.R. 609, may not be proved

by extrinsic evidence.    They may, however, in the discretion of the court, if clearly

probative of truthfulness or untruthfulness, be inquired into on cross-examination of the

witness (1) concerning the witness’s character for truthfulness or untruthfulness ***.”

       {¶ 100} Even assuming that evidence that Thomason participated in a burglary

related to her character for truthfulness, we cannot conclude such evidence would have

affected the outcome of the trial. Just prior to defense counsel’s asking Thomason about

her criminal record, Thomason testified that she had been a member of a gang, the Gangster

Disciples; Thomason stated that she could not say what she did in the gang, because “I didn’t
                                                                                             23

do nothing.” Thomason had previously testified during the State’s direct examination that

she had contemplated retaliating against Lewis for Gibson’s shooting.               On recross

examination, Thomason clarified that she had considered murdering Lewis. In light of this

testimony, the additional information that Thomason had been involved in a burglary would

likely have had minimal impact on the jury and would not have affected the outcome of the

trial.

         {¶ 101} The fifth assignment of error is overruled.

                                                  VII

         {¶ 102} Lewis’s sixth assignment of error states:

         {¶ 103} “THE TRIAL COURT ERRED IN SENTENCING DEFENDANT ON

MORE THAN ONE OF THE FIRST FOUR COUNTS OF THE INDICTMENT.”

         {¶ 104} In his sixth assignment of error, Lewis claims that the trial court should have

merged his felonious assault convictions with his murder convictions.                The State

acknowledges that we have previously held that felonious assault is an allied offense of

similar import with the crime of felony murder predicated upon felonious assault, e.g., State

v. Reid, Montgomery App. No. 23409, 2010-Ohio-1686, and State v. Scandrick,

Montgomery App. No. 23406, 2010-Ohio-2270, but asks that we reconsider our prior

holding.

         {¶ 105} R.C. 2941.25, concerning allied offenses of similar import, provides:

         {¶ 106} “(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.
                                                                                           24

       {¶ 107} “(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment or

information may contain counts for all such offenses, and the defendant may be convicted of

all of them.”

       {¶ 108} “R.C. 2941.25 codifies the double jeopardy protections in the federal and

Ohio constitutions, which prohibit courts from imposing cumulative or multiple

punishments for the same criminal conduct unless the legislature has expressed an intent to

impose them.      R.C. 2941.25 expresses the legislature’s intent to prohibit multiple

convictions for offenses which are allied offenses of similar import per paragraph (A) of that

section, unless the conditions of paragraph (B) are also satisfied.” State v. Barker, 183 Ohio

App.3d 414, 2009-Ohio-3511, ¶22, citing State v. Rance, 85 Ohio St.3d 632,

1999-Ohio-291, overruled on other grounds by State v. Johnson, __ Ohio St.3d __,

2010-Ohio-6314.

       {¶ 109} In Johnson, the Ohio Supreme Court recently clarified the process by which

courts determine whether offenses are allied offenses of similar import. The Johnson court

overruled Rance “to the extent that it calls for a comparison of statutory elements solely in

the abstract under R.C. 2941.25.” Johnson at ¶44. Now, “[w]hen determining whether two

offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the

conduct of the accused must be considered.” Id.

       {¶ 110} Johnson states that “the intent of the General Assembly is controlling.” Id. at

¶46.   “We determine the General Assembly’s intent by applying R.C. 2941.25, which
                                                                                            25

expressly instructs courts to consider the offenses at issue in light of the defendant’s

conduct.” Id. The trial court must determine prior to sentencing whether the offenses were

committed by the same conduct. The court no longer must perform any hypothetical or

abstract comparison of the offenses at issue in order to conclude that the offenses are subject

to merger. Id. at ¶47 “In determining whether offenses are allied offenses of similar

import under R.C. 2941.25(A), the question is whether it is possible to commit one offense

and commit the other with the same conduct, not whether it is possible to commit one

without committing the other. If the offenses correspond to such a degree that the conduct

of the defendant constituting commission of one offense constitutes commission of the

other, then the offenses are of similar import.” Id. at ¶48 (internal citation omitted).

       {¶ 111} “If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e., ‘a

single act, committed with a single state of mind.’” Id. at ¶49 (citation omitted). “If the

answer to both questions is yes, then the offenses are allied offenses of similar import and

will be merged.” Id. at ¶50. “Conversely, if the court determines that the commission of

one offense will never result in the commission of the other, or if the offenses are committed

separately, or if the defendant has separate animus for each offense, then, according to R.C.

2941.25(B), the offenses will not merge.” Id. at ¶51.

       {¶ 112} Under the facts of this case, it is apparent that the charges of felonious

assault are allied offenses of similar import, both with each other and with the murder

charges. Lewis fired a single bullet at Gibson, killing him. Stated differently, Lewis used a

deadly weapon and caused serious physical harm, namely death; he could not have
                                                                                                26

committed felony murder premised on these felonious assaults without having committed

the felonious assaults. In short, Lewis committed a single act with a single state of mind,

and the two felonious assault counts should have been merged with the remaining count of

murder.

        {¶ 113} Where two or more offenses must be merged as allied offenses of similar

import, the prosecutor must elect which offense it will pursue. State v. Harris, 122 Ohio

St.3d 373, 2009-Ohio-3323, ¶21-23. “If, upon appeal, a court of appeals finds reversible

error in the imposition of multiple punishments for allied offenses, the court must reverse

the judgment of conviction and remand for a new sentencing hearing at which the state must

elect which allied offense it will pursue against the defendant.” State v. Whitfield, 124 Ohio

St.3d 319, 2010-Ohio-2, ¶25. The Supreme Court has provided additional guidance to the

trial court, as follows:

        {¶ 114} “On remand, the trial court should fulfill its duty in merging the offenses for

purposes of sentencing, but remain cognizant that R.C. 2941.25(A)’s mandate that a

‘defendant may be convicted of only one’ allied offense is a proscription against sentencing

a defendant for more than one allied offense. Nothing in the plain language of the statute or

in its legislative history suggests that the General Assembly intended to interfere with a

determination by a jury or judge that a defendant is guilty of allied offenses. As the state

asserts, by enacting R.C. 2941.25(A), the General Assembly condemned multiple sentences

for allied offenses, not the determinations that the defendant was guilty of allied offenses.

        {¶ 115} “Because R.C. 2941.25(A) protects a defendant only from being punished

for allied offenses, the determination of the defendant’s guilt for committing allied offenses
                                                                                          27

remains intact, both before and after the merger of allied offenses for sentencing. Thus, the

trial court should not vacate or dismiss the guilt determination.”      (Footnote omitted.)

Whitfield at ¶26-27.

       {¶ 116} The sixth assignment of error is sustained.

                                                    VIII

       {¶ 117} Lewis’s seventh assignment of error states:

       {¶ 118} “THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL.”

       {¶ 119} In his seventh assignment of error, Lewis claims that his counsel rendered

ineffective assistance by failing to raise a Batson challenge, by failing to pursue

cross-examination of Thomason regarding her burglary conviction under Evid.R. 608, and

by failing to object to prosecutorial misconduct.

       {¶ 120} To reverse a conviction based on ineffective assistance of counsel, an

appellant must demonstrate both that trial counsel’s conduct fell below an objective standard

of reasonableness and that the errors were serious enough to create a reasonable probability

that, but for the errors, the result of the trial would have been different. Strickland v.

Washington (1984), 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley

(1989), 42 Ohio St.3d 136. Trial counsel is entitled to a strong presumption that his or her

conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688.

Deficient performance means that claimed errors were so serious that the defense attorney

was not functioning as the “counsel” that the Sixth Amendment guarantees. State v. Cook

(1992), 65 Ohio St.3d 516, 524.
                                                                                              28

          {¶ 121} Defense counsel arguably should have objected to certain statements by the

prosecutor during opening and closing arguments and to the prosecutor’s question to

Thomason about how it felt to hold Gibson as he died. However, as discussed above, we do

not find that the outcome of Lewis’s trial would have been different if defense counsel had

interjected objections. Accordingly, Lewis has not demonstrated that his counsel rendered

ineffective assistance when he failed to object to the prosecutor’s conduct.

          {¶ 122} As for his counsel’s failure to raise a Batson challenge, Lewis argues that his

counsel misunderstood Batson and that counsel was ineffective by failing to challenge the

State’s peremptory exclusion of Juror Number 11, who was excused for no discernible

reason.

          {¶ 123} Counsel had two brief conversations with the juror during voir dire. The

following exchange occurred during the State’s questioning:

          {¶ 124} “MR. FRANCESCHELLI: And then [Juror Number 11], how long have you

been employed with your present employer, approximately?

          {¶ 125} “PROSPECTIVE JUROR [11]: Three years.

          {¶ 126} “MR. FRANCESCHELLI: Excellent. All right. Do you work solely at the

location of the business, or do you go to people’s home and all, or both?

          {¶ 127} “PROSPECTIVE JUROR [11]: I work at the business.

          {¶ 128} “MR. FRANCESCHELLI: At the business. Very good. now – and then –

oh, never mind. All right. Thanks.”

          {¶ 129} Defense counsel’s questioning of Juror Number 11 consisted of the

following:
                                                                                       29

        {¶ 130} “MR. CALAWAY: What does presumption of innocence mean? Let’s try

[Juror Number 11]. You cold?

        {¶ 131} “PROSPECTIVE JUROR [11]: Yes.

        {¶ 132} “MR. CALAWAY: I – see, I’m clever; I picked up on that. Well, they

crank the temperature down because when you get lots of people in it, it seems to warm up;

but give it a little time. We might be able to work with you. Okay. I literally never had

that happen in a trial, I got to say.

        {¶ 133} “What does the presumption of innocence mean to you?

        {¶ 134} “PROSPECTIVE JUROR [11]: The presentation of innocence?

        {¶ 135} “MR. CALAWAY: The presumption of innocence.

        {¶ 136} “PROSPECTIVE JUROR [11]: Presumption of innocence. I’m trying to

think how to word it.

        {¶ 137} “MR. CALAWAY: Let me ask you a different question, make it a littler

easier on you. Theron sits here today. He’s been arrested. He’s been charged. Does the

fact that he’s sitting there have any influence on you?

        {¶ 138} “PROSPECTIVE JUROR [11]: No, because – I mean, he – it may have been

someone else. He may have been there at the wrong time.

        {¶ 139} “MR. CALAWAY: Okay, so you’re willing to just let everything aside and

say, look, I’ll wait and I’ll see what’s going to be said?

        {¶ 140} “PROSPECTIVE JUROR [11]: Yes.

        {¶ 141} “MR. CALAWAY: Okay. ***”

        {¶ 142} The State used its first peremptory challenge against this juror.      As
                                                                                                30

demonstrated in our discussion of Lewis’s fourth assignment of error, it is apparent that

defense counsel mistakenly believed that he could not raise a Batson challenged until all

minority jurors had been struck by the State.

       {¶ 143} However, even if defense counsel’s conduct constituted deficient

performance, we have no means to evaluate whether counsel’s failure to object prejudiced

Lewis. In the absence of an objection, the State was not required to articulate its reasons for

exercising a peremptory challenge against this particular juror, and the State did not

volunteer its reasons. Consequently, from this record, we cannot determine whether the

State had race-neutral explanations for the peremptory challenge and, if so, whether the trial

court could have properly accepted such explanations as credible and not a pretext for racial

discrimination. “We do not presume prejudice from a trial counsel’s failure to raise a

Batson challenge, and, as here, without an adequate record, we cannot properly consider on

direct appeal a claim of ineffective assistance of counsel for a trial counsel’s failure to raise a

Batson objection.” State v. Burks, Franklin App. No. 07AP-553, 2008-Ohio-2463, ¶57.

       {¶ 144} Lewis cites State v. Robertson (1993), 90 Ohio App.3d 715, for the

proposition that failing to raise a Batson challenge constitutes reversible error.              In

Robertson, defense counsel objected to the prosecutor’s use of peremptory challenges after

the jury had been sworn and seated. On appeal, the defendant argued, in part, that his

counsel was ineffective in failing to assert a Batson challenge in a timely manner. While

noting that “it would be an unusual case in which ineffective assistance of trial counsel

would be clearly established in the record of a direct appeal, since a performance of trial

counsel that appears from the record to have been deficient may have a reasonable
                                                                                            31

explanation in view of facts and circumstances that are not apparent from the record,” id. at

720, we found no possible tactical reason existed for counsel to have waited to raise a

Batson challenge.     We further noted that “[t]here was at least a prima facie basis for a

Batson challenge, since the defendant was an African-American and the state had used its

peremptory challenges to excuse three African-American members of the panel, leaving only

one African-American as an alternate juror who would probably not participate in

deliberations.” Id.

       {¶ 145} Turning to whether a timely Batson challenge would have succeeded, we

quoted the discussion between counsel and the court, during which the State offered reasons

for having exercised peremptory challenges against three African-American prospective

jurors; the trial court failed to make to determination as to whether it believed the State’s

explanations. With respect to one juror, we found that the record established that the

State’s explanation was credible. However, as to another juror, we found a remand to be

necessary for the trial court to decide whether to accept the State’s explanation, if it could

recall the incident. In so doing, we stated: “It was the responsibility of the trial judge to

determine whether this was the real reason for the state’s having peremptorily challenged

[the juror], and it is clear from the record that the trial judge was under the erroneous

impression that that was no concern of his.” Id. at 725.

       {¶ 146} We find Robertson to be distinguishable. Upon the trial court’s asking

defense counsel if he wished to make a Batson challenge, defense counsel declined, and

neither the trial court nor the State pursued the matter further. As discussed above, the trial

court did not err in failing to conduct a Batson inquiry. Moreover, unlike Robertson, in
                                                                                           32

which the record demonstrated that the State had excused three African-American

prospective jurors, leaving only one African-American juror as an alternate, the record here

is silent as to the racial make-up of the jury pool, the race of the excused jurors, and the

racial composition of the seated jury. We are faced with an undeveloped record, and we

have no basis to conclude that Lewis was prejudiced by his counsel’s failure to raise a

Batson challenge.

       {¶ 147} The seventh assignment of error is overruled.

                                                 IX

       {¶ 148} The trial court’s judgment will be affirmed in part, reversed in part, and

remanded for resentencing consistent with this opinion.

                                            ..........

       FAIN, J., concurs.

       DONOVAN, J., dissenting:

       {¶ 149} I disagree. Use of App.R. 9(C) and (E) are not reasonable or realistic

alternatives in this case. Although an adequate transcript does not mean a perfect transcript,

“inaudibles” and “indecipherables” permeate this trial during voir dire, critical eye witness

testimony, sidebars and a jury instruction conference.

       {¶ 150} App.R. 9(C) and (E) should not become a substitute for proper recording of

trials. In this case, virtually every sidebar conference, and there are at least fifteen, are

either completely inaudible or partially indecipherable. Notably, critical evidentiary rulings

are frequently made at sidebar and in this case, impactful sidebar rulings were made. These

were not simply ministerial sidebars. Crim.R. 22 states in part: “in serious offense cases all
                                                                                             33

proceedings shall be recorded in shorthand, or stenotype, or by any other adequate

mechanical, electronic or video recording device.” Although the appellant has a duty to

provide a transcript that is adequate for an appellate court to review and defense counsel

plays a key role in making the record, the responsibility for its creation in the first instance

rests with the trial court. The trial court has the ultimate responsibility to bring about an

adequate record for review including sidebars. “The minimal effort needed to comply with

Crim.R. 22 is far outweighed by the expense, in time and taxpayer money, of retrying a

complex criminal case.” State v. Brewer (1990), 48 Ohio St.3d 50, 61.

        {¶ 151} Although the State asserts, and the majority agrees, that Lewis did not take

the appropriate steps to rectify the gaps in the transcript and that he has made no showing of

prejudice, App.R. 9(C) and (E) must be tempered with reason such that this duty is not

transformed into an impossible burden. The problem is magnified when, as here, the

attorney representing the appellant is different from the attorney who represented him at

trial. An incomplete record such as this (it must be emphasized that Appellant is serving a

life sentence) compromises appellate counsel’s ability to advocate on behalf of his client and

renders illusory the right to notice plain errors or defects.

        {¶ 152} This trial began under a cloud of ineffective assistance as evidenced by, yes,

a partially indecipherable sidebar. It is rather alarming that appointed counsel, defending a

homicide indictment so misunderstood Batson that he believed such an objection could be

lodged only when the last African American juror was excused. The illusory nature of

noticing error when the record is flawed is also apparent at page(s) 137-138 of the transcript

during voir dire when a sidebar is completely lost during questions raised by defense counsel
                                                                                              34

regarding gang affiliation. In fact, testimony was adduced regarding gang affiliation in this

trial.   Voir dire questions on the subject would have been permissible and critical to

revealing juror prejudice. However, such questions were interrupted by the court with a

comment “we’ve got to move on.” (Tr., p. 137, line 18). Thereafter, defense counsel

abruptly terminated his limited voir dire completely. This sidebar is completely inaudible,

(Tr., p. 138, line 5) making this issue unseen and incapable of assessment.

         {¶ 153} Although the majority suggests these problems are certainly not unique to

audio and/or video recording systems, citing the Jones and Knapp cases, I disagree with such

a conclusion. In the Jones case, there is no suggestion a proper record was not created in

the first instance, rather Jones involved a delayed appeal (over ten years) and the court

reporter’s notes had been properly destroyed. In Knapp, the original record (stenographer

notes) existed, but the reporter was too ill to transcribe them.

         {¶ 154} On the other hand, the problems portrayed by this record are unique to some

of these audio/visual courtrooms and have arisen in prior cases, although to a lesser extent,

 including State v. Walton, Montgomery App. No. 20615, 2006-Ohio-1974; State v. Arment,

Montgomery App. No. 19459, 2003-Ohio-4089; State v. Thompson, 161 Ohio App.3d 334,

2005-Ohio-2508; State v. Bowman, Montgomery App. No. 22459, 2008-Ohio-5157; and

State v. Owings, Montgomery App. No. 21429, 2006-Ohio-4281.                    This is not a

comprehensive list as this court has previously resorted to viewing the videotape in many

instances in an attempt to discern what, in fact, occurred. Such an attempt is of no value in

this case, as resort to the videotape reveals obvious gaps, inaudibles and indecipherables.

         {¶ 155} The cumulative error portrayed by this record, along with evidence of
                                                                                           35

ineffective assistance of trial counsel and an unlawful lack of complete record, create a lack

of confidence in the verdict. I would reverse and order a new trial.

                                         ..........



Copies mailed to:

R. Lynn Nothstine
Laura M. Woodruff
Darrell L. Heckman
Hon. Frances E. McGee
