[Cite as State v. Tipton, 2013-Ohio-3207.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                        :       OPINION

                 Plaintiff-Appellee,                  :
                                                              CASE NO. 2012-P-0072
        - vs -                                        :

JOSHUA B. TIPTON,                                     :

                 Defendant-Appellant.                 :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR
0801.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Richard E. Hackerd, 231 South Chestnut Street, Ravenna, OH                        44266-3023 (For
Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

       {¶1}      Appellant, Joshua B. Tipton, appeals his conviction, following a jury trial, in

the    Portage      County       Court       of   Common   Pleas   of   illegal    manufacture   of

methamphetamine.            At issue is whether appellant’s trial counsel provided effective

assistance. For the reasons that follow, we affirm.

       {¶2}      On December 23, 2011, appellant was indicted for illegal manufacture of

methamphetamine (“meth”) in the vicinity of a school, a felony of the first degree, in
violation of R.C. 2925.04. Appellant pled not guilty. The case was tried to a jury in May

2012.

        {¶3}   Detective Joan Bauer of the Ravenna Police Department testified that on

December 12, 2011, a confidential informant (“CI”) told her that appellant was trying to

sell a firearm and the CI asked if Detective Bauer was interested. After the detective

said she was interested, the CI contacted appellant and appellant’s associate, Laurie

Claeys, and said she had a friend who would buy the gun. At that time appellant and

Claeys told the CI that they were selling meth and would sell the CI’s friend, i.e.,

Detective Bauer, four grams for $400. After the CI relayed this information, Detective

Bauer agreed to buy both items.

        {¶4}   On December 14, 2011, Detective Bauer met with the CI, who had been in

contact with Claeys and appellant about buying the meth. The purchase was to take

place that day at a single-family residence on West Elm Street in Kent, Ohio, which was

owned by one Kenneth Brewster. Detective Bauer was with the CI while the CI placed

several telephone calls to appellant, Claeys, and Brewster, to set up a time when

Detective Bauer and the CI would meet them.

        {¶5}   Detective Bauer testified that at about 7:30 p.m., appellant called the CI

using Claeys’ cell phone. Detective Bauer said she is familiar with appellant’s voice

from her previous undercover contacts with him. She heard appellant tell the CI that

she and her “friend” should come to the house in 20 minutes and that the meth “would

be done” at that time.

        {¶6}   Detective Bauer testified that she was working with other law enforcement

agencies in connection with this operation, including the Kent Police Department, the




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Portage County Sheriff’s Office, the Metro SWAT Unit, and Federal ATF agents, all of

whom already had the house under surveillance. At about 7:30 p.m., the cover team

advised Detective Bauer that Claeys and appellant were in the residence.

      {¶7}    At about 8:00 p.m., Detective Bauer and the CI went to Brewster’s

residence to make the buy. Upon arrival, Brewster opened the door and let them in.

Upon entering the house, appellant was in the kitchen by the sink. He was pacing back

and forth; acting “very erratic” and “agitated;” and staring out the window. Appellant

then went in the bathroom and locked the door. Claeys was already in the bathroom at

that time.

      {¶8}    After awhile, Claeys came out of the bathroom and said it was taking them

longer than expected to finish the meth. She said they could “pull it off right now,” but

Detective Bauer would not be happy because she would not receive as much meth. As

a result, Claeys said they should wait. Claeys said appellant was in the bathroom

“burping the bottle,” referring to the step in the manufacturing process where pressure is

released from the plastic pop bottle used to “cook” the meth by slightly opening the

bottle cap.

      {¶9}    Shortly thereafter, appellant came out of the bathroom; walked around for

awhile; talked to Claeys; and then he and Claeys returned to the bathroom.           After

awhile, Claeys called the CI to come to the bathroom door. The CI walked to the

bathroom and Detective Bauer followed her. Claeys said the meth should cook longer.

She said, “the longer it cooks, the better it is.” At that point, Detective Bauer saw

appellant inside the bathroom bending over the bottle being used to manufacture the

meth with his hand on the bottle. Detective Bauer testified, “[appellant] was probably




                                            3
burping it, but [she] didn’t see the whole process.” The detective said that appellant and

Claeys were “cooking meth right in front of [her].”

      {¶10}   About one-half hour later, Claeys came out of the bathroom again, and

said it would take another hour to complete the manufacturing process.          Detective

Bauer asked about the price of the meth. Claeys said she was not sure of the price

because all three of them, appellant, Claeys, and Brewster, had gone in on this together

and they had to charge extra for the pseudoephedrine, which is used in making meth.

      {¶11}   Detective Bauer told Claeys that she and the CI would return in about an

hour to pick up the meth. She and the CI left the residence, and the detective contacted

the cover team to advise they had just left the house. The cover team approached the

house and ordered appellant to come out.

      {¶12}   Laurie Claeys testified that she pled guilty to illegal manufacture of

methamphetamine, a first-degree felony, based on her involvement in this case. She

said she is awaiting sentencing and that no one had made any promises to her

regarding her sentence.

      {¶13}   Claeys said that on December 14, 2011, she and appellant went to

Brewster’s house. They planned to make four grams of meth and to sell it for $400.

She said that she, appellant, and Brewster all agreed to do this. She said she had

previously made arrangements with a friend of hers, who turned out to be the CI, who

was going to bring someone to the house to buy the meth.

      {¶14}   Claeys testified that the day before, December 13, 2011, she and

appellant purchased the lye and other ingredients they needed to make the meth. She

said that during the day on December 14, 2011, she, a friend of hers, appellant, and his




                                             4
girlfriend went to different pharmacies and bought pseudoephedrine, which was to be

used in making the meth.

      {¶15}   Claeys said she talked to the CI several times during the day on

December 14, 2011.       She said she kept telling her they were delayed. This was

because they had difficulty finding people to get pseudoephedrine for them.

      {¶16}   Claeys testified that by 7:00 p.m., she and appellant had all the

ingredients they needed to make meth. The ingredients are lye, lithium strips from the

inside of batteries, acid, lantern fuel, and ammonium nitrate, which is a granular

chemical found in cold packs. At that time she and appellant started to make the meth

in the bathroom.

      {¶17}   Claeys stated that when they started making the meth, the bathroom door

was closed, but, after awhile, she opened it due to the fumes that resulted from

releasing pressure in the pop bottle. Claeys said that appellant helped her by putting

the ingredients for the meth in the bottle and by releasing the pressure from the bottle.

      {¶18}   Claeys testified that Detective Bauer and the CI arrived about 8:00 p.m.

At that time she was still in the bathroom. Brewster told Claeys that Bauer and the CI

had arrived. Claeys came out of the bathroom and talked to the CI and the detective in

the kitchen. Claeys told them the meth was not ready. She said they could pull it off

now, but they would only get a small amount. Claeys said they should wait. After a few

similar delays, the detective and the CI said they would leave and come back when it

was done.

      {¶19}   Claeys testified that after the detective and the CI left, she and appellant

were in the bathroom taking turns releasing pressure from the bottle.      Suddenly, they




                                            5
heard banging on the door.        She went to the door and appellant darted from the

bathroom to the basement trying to run away. Brewster let the agents in and Claeys

was arrested.

      {¶20}   Stephen Lincoln of the Portage County Sheriff’s Office testified he

searched the residence pursuant to a search warrant. He said an active, cooking meth

lab, i.e., the pop bottle, was found in the bathroom. He said the contents of the bottle

were still bubbling or cooking, meaning the lithium strips were still reacting to the fuel

and water in the bottle. He said the cooking meth lab was near the end of the cooking

process. He took the bottle out of the house and opened the bottle to neutralize its

contents to avoid an explosion.

      {¶21}   The state presented evidence that Brewster’s house is about 800 feet

away from the Holden Elementary School, which is a public school owned by the Kent

City Board of Education.

      {¶22}   The supervisor of the State Fire Marshall’s forensic lab testified that the

pop bottle contained chemicals used in manufacturing meth.

      {¶23}   Appellant did not testify or present any witnesses on his behalf. Thus, the

testimony of the state’s witnesses was undisputed.

      {¶24}   The jury found appellant guilty of illegal manufacture of meth in the vicinity

of a school, a first-degree felony. The court sentenced appellant to a mandatory term of

six years in prison and a mandatory drug fine of $10,000, but suspended the fine as a

result of the court’s finding that appellant is indigent.

      {¶25}   Appellant appeals his conviction, asserting four assignments of error. For

his first assignment of error, he alleges:




                                               6
        {¶26}   “Defense counsel’s assistance was ineffective when he failed to object to

wholesale portions of the prosecution’s case which was presented in violation of basic

rules of evidence and this deficiency was prejudicial to the defendant and denied him a

fair trial.”

        {¶27}   The standard of review for ineffective assistance of counsel was stated by

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687

(1984), and has been repeatedly followed by this court. State v. Schlee, 11th Dist. No.

93-L-082, 1994 Ohio App. LEXIS 5862, *30-*31 (Dec. 23, 1994); State v. McKinney,

11th Dist. No. 2007-T-0004, 2008-Ohio-3256, ¶187.

        {¶28}   In order to support a claim of ineffective assistance of counsel, the

defendant must satisfy a two-prong test. First, he must show that counsel’s performance

was deficient. Strickland, supra. This requires a showing that counsel made errors so

serious that counsel was not functioning as the counsel guaranteed the defendant by

the Sixth Amendment. Id. A defendant bears the burden of proving that trial counsel’s

assistance fell below an objective standard of reasonable representation. State v.

Bradley, 42 Ohio St.3d 136, 142 (1989), citing Strickland, supra, at 687-688. Because

there are many ways to provide effective assistance, there is a strong presumption that

trial counsel’s performance fell within the wide range of reasonable professional

assistance. Bradley, supra, citing Strickland, supra, at 689.

        {¶29}   Second, the defendant must show the deficient performance prejudiced

the defense. In order to satisfy this prong, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s * * * errors, the result of the [trial] would

have been different.” Strickland at 694; accord Bradley, paragraph three of the syllabus.




                                             7
      {¶30}   It is well settled that strategic and tactical decisions do not constitute a

deprivation of the effective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49

(1980). Errors of judgment regarding tactical matters do not substantiate a claim of

ineffective assistance of counsel. Id.; accord State v. Vinson, 11th Dist. No. 2006-L-238,

2007-Ohio-5199, ¶31.

      {¶31}   In Clayton, supra, the Court held: “* * * the fact that there was another and

better strategy available [to counsel] does not amount to a breach of an essential duty

to his client.” Id. A reviewing court must not second-guess trial strategy decisions. Id.

      {¶32}   Generally, the failure to make objections during trial does not constitute

ineffective assistance of counsel since the failure may be a tactical decision. See State

v. Gumm, 73 Ohio St.3d 413, 428 (1995). “The failure to object to error, alone, is not

enough to sustain a claim of ineffective assistance.” State v. Wright, 11th Dist. No.

2000-P-0128, 2002 Ohio App. LEXIS 1497, *18 (Mar. 29, 2002). This is because

objections tend to disrupt the flow of a trial and are considered technical and

bothersome by a jury, causing an attorney to reasonably hesitate to object. Id. There is

a strong presumption that trial counsel’s failure to object was a strategic and tactical

decision, and the defendant has the burden to present evidence to overcome this

presumption. Id.

      {¶33}   Each of trial counsel’s purported deficiencies involved his alleged failure to

object to the admission of evidence.        The trial court has broad discretion in the

admission and exclusion of evidence, and we review such decision only for an abuse of

discretion. State v. Hymore, 9 Ohio St.2d 122, 128 (1967); Yost v. Bermudez, 11th Dist.

No. 2002-T-0007, 2003-Ohio-6736, ¶12.




                                             8
      {¶34}   First, appellant argues his trial counsel was ineffective because he did not

object to Detective Bauer’s testimony that the CI told her that appellant was trying to sell

a firearm and that appellant had told the CI the gun had “bodies on it,” meaning, in

street language, that it had been used in a shooting. Appellant argues trial counsel

should have objected because this testimony was “highly prejudicial.” However, as

noted above, it is presumed that counsel’s failure to object was a tactical and strategic

decision. Further, the testimony was offered as background to show the circumstances

in which the CI first contacted Detective Bauer. Also, appellant was not charged with

the sale or attempt to sell a gun. Further, there is no evidence that appellant’s sale of a

gun would be unlawful. Appellant failed to present evidence to overcome the

presumption that trial counsel’s failure to object was a strategic and tactical decision.

      {¶35}   Next, appellant argues his trial counsel was ineffective in not objecting to

Detective Bauer’s testimony that the CI told her on the phone that Claeys would sell her

four grams of meth for $400. However, Claeys testified at trial that she agreed to sell

four grams to Detective Bauer and the CI for $400. Since Claeys testified concerning

these same details of the buy, she was subject to cross-examination, and any error in

admitting this testimony was harmless.           Appellant has failed to overcome the

presumption that trial counsel’s failure to object to Detective Bauer’s testimony was a

strategic and tactical decision.

      {¶36}   Next, appellant argues that trial counsel did not properly object to

Detective Bauer’s testimony that Claeys told her when she came out of the bathroom

that appellant was in the bathroom burping the bottle. Appellant concedes that trial

counsel objected, but argues trial counsel should have specifically stated the objection




                                             9
was based on hearsay. However, appellant does not reference any authority for the

proposition that a party must state the basis for his objections at trial. Since counsel

objected to this testimony at trial, his performance was not deficient and he was

therefore not ineffective in this regard.     In any event, this testimony was harmless

because Claeys herself testified at trial that appellant was in the bathroom burping the

bottle and Detective Bauer also testified she saw appellant in the bathroom burping the

bottle.

      {¶37}     Next, appellant argues trial counsel was ineffective in not objecting to the

following testimony of Detective Bauer, which appellant characterizes as speculative:

      {¶38}     Q. Did you observe the one pot [i.e., the cooking pop bottle]?

      {¶39}     A. Yes, I did.

      {¶40}     Q. Could you tell us about that please?

          {¶41} A. That was when for the quick second when I was able to walk

                across the kitchen area behind the informant talking to Laurie

                Claeys, Josh Tipton was inside the bathroom with his - - like

                bending over the one pot, the actual soda bottle.

      {¶42}     Q. What was he doing with it?

          {¶43} A. He was bending over it. He was - - I mean he had his hand on

                it. I can say that he was probably burping it, but I didn’t see the

                whole process. (Emphasis added.)

      {¶44}     Appellant argues that Detective Bauer’s comment that appellant was

“probably” burping the bottle made this testimony speculative because it shows it was

not based on her personal knowledge.            Appellant fails to reference any pertinent




                                             10
authority in support of this proposition. Appellant’s reliance on State v. McCaleb, 11th

Dist. No. 2002-L-157, 2004-Ohio-5940 is misplaced. In McCaleb, this court held that

where the witness’ testimony that the victim was afraid of the defendant was based on

her observation of the victim’s appearance and emotional state, the testimony was not

speculative. Id. at ¶38-40. Further, lay opinion testimony is admissible if it is rationally

based on the witness’ perception. Evid.R. 701. Moreover, in State v. Stojetz, 84 Ohio

St.3d 452 (1999), the Supreme Court of Ohio held that the witness’ testimony during a

prosecution for a prison murder that “I guess they stuck him * * * a couple times while

inside the cell” was not improper speculation where the witness also testified that he

saw blood on the victim as the victim escaped from the cell and he later saw the

defendant pursue the victim and stab him. Id. at 462-463.

      {¶45}   Detective Bauer’s testimony that appellant was probably burping the bottle

was based on her observation of appellant alone in the bathroom bending over the

bottle with his hand on it. Since the detective’s testimony was based on her observation

of appellant, her testimony was not improper speculation. Therefore, trial counsel was

not deficient in not objecting to this testimony.

      {¶46}   In any event, even if trial counsel’s conduct was ineffective for any of the

foregoing alleged deficiencies, he failed to prove prejudice in light of the overwhelming

and undisputed evidence of his guilt. Detective Bauer heard appellant tell the CI to

arrive in 20 minutes because by then the meth would be done. The detective testified

she saw appellant and Claeys making the meth and saw appellant in the bathroom

bending over and handling the bottle in which the meth was cooking. Claeys testified

that she and appellant made the meth.               Claeys testified that appellant put the




                                              11
ingredients in the pop bottle and burped it. The police found the meth was still cooking

in the bottle when they arrived.

      {¶47}    Appellant’s first assignment of error is overruled.

      {¶48}    For appellant’s second assigned error, he alleges:

      {¶49}    “The trial court permitted prejudicial error when it permitted witness Laurie

Claeys to testify that she received no compensation for her testimony where following

her testimony she withdrew her plea to the first-degree felony and entered a plea to a

second-degree felony in her companion case. This arrangement was not disclosed to

the jury in the instant trial.”

      {¶50}    Appellant argues that because Claeys was allowed to withdraw her guilty

plea to a first-degree felony and then pled guilty to a second-degree felony after

appellant’s trial was concluded, the state must have given her a “deal” to plead to a

lesser charge before she testified. Therefore, appellant argues that Claeys lied at trial

when she said she had not been given any promises, and the jury should have been

informed of this alleged deal. However, appellant fails to reference the trial court record

for any evidence to support his argument. For this reason alone, this assignment of

error lacks merit. App.R. 16(A)(7).

      {¶51}    Moreover, our review of the record does not support appellant’s argument.

Claeys testified in appellant’s trial that she had pled guilty to illegal manufacture of

drugs, a first-degree felony; that she was in jail awaiting sentence; and that she had not

been given any promises regarding sentencing. Nothing in the trial court record shows

this testimony was untrue.




                                             12
      {¶52}   While this appeal was pending in this court, on November 20, 2012,

appellant filed a motion to remand to supplement the record. As a basis for the remand,

appellant argued a remand is necessary for the trial court “to conduct discovery and

supplement the record with respect to compensation received by Laurie Claeys for her

testimony in trial * * *.” In this court’s judgment entry, dated December 12, 2012, this

court denied the motion, stating that “a remand for the purpose stated in appellant’s

motion does not appear reasonable or justified * * *, and appellant has not offered any

authority to justify a remand for that purpose.”

      {¶53}   Appellant attached to his motion to remand a copy of the docket and a

judgment entry in Claeys’ companion case, which show that five weeks after appellant’s

trial was completed, the trial court granted Claeys’ motion to vacate her guilty plea to a

first-degree felony; the state amended her indictment; and Claeys then pled guilty to

illegal manufacture of drugs, a second-degree felony.

      {¶54}   In considering appellant’s assignments of error, this court is limited to a

review of the trial court’s record. Pursuant to App.R. 12(A)(1)(b), an appellate court is

confined to the record that was before the trial court. Because the docket and judgment

entry in Claeys’ case is not part of the trial court’s record, we cannot consider them.

However, even if we could, these documents do not support appellant’s argument that

the state and Claeys agreed before appellant’s trial that she would be allowed to plead

guilty to a lesser charge after she testified.

      {¶55}   Appellant’s second assignment of error is overruled.

      {¶56}   For appellant’s third assigned error, he contends:




                                                 13
      {¶57}   “The Trial Court committed prejudicial error when it permitted the hearsay

testimony of Joan Bauer who testified that Laurie Claeys stated that Josh Tipton, the

defendant appellant herein, was engaged in “burping;” a component stage of

manufacturing methamphetamine drugs.”

      {¶58}   Appellant argued under his first assigned error that trial counsel was

ineffective in not objecting to Detective Bauer’s testimony that Claeys told her that

appellant was burping the bottle. Under this assignment of error, appellant argues that

the trial court erred in allowing this testimony on the ground that it was hearsay. As

noted above, we review a trial court’s decision to admit evidence only for an abuse of

discretion. Yost, supra.

      {¶59}   Evid.R. 801(C) defines hearsay as “a statement * * * offered in evidence to

prove the truth of the matter asserted.” The Supreme Court of Ohio has stated that the

historic purpose of the hearsay rule is “to exclude statements * * * that cannot be tested

by cross-examination.” State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶70.

      {¶60}   In addition to Detective Bauer’s testimony that Claeys told her appellant

was burping the bottle in the bathroom, Claeys also testified at trial to this same effect.

While Detective Bauer’s testimony was technically hearsay, any error was harmless

because Claeys also testified and was subject to cross-examination. Thus, Detective

Bauer’s testimony was not subject to the usual concerns raised with hearsay testimony.

Further, any error was harmless in light of Detective Bauer’s testimony that she saw

appellant burping the bottle and the other overwhelming evidence of appellant’s guilt, as

outlined above. We therefore hold the trial court did not abuse its discretion in allowing

Detective Bauer’s testimony on this subject.




                                            14
      {¶61}   Appellant’s third assignment of error is overruled.

      {¶62}   Appellant alleges the following for his fourth and final assigned error:

      {¶63}   “The cumulative effect of many errors in this trial, even if singularly not

sufficient to warrant reversal, together deprive defendant of a fair trial.”

      {¶64}   In State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the

syllabus, the Supreme Court of Ohio recognized the doctrine of cumulative error.

Pursuant to this doctrine, “a conviction will be reversed where the cumulative effect of

errors in a trial deprives a defendant of the constitutional right to a fair trial even though

each of numerous instances of trial court error does not individually constitute cause for

reversal.” State v. Garner, 74 Ohio St.3d 49, 64 (1995). The doctrine is not applicable

unless the record reveals numerous instances of trial court error. Id.; State v. Webb, 70

Ohio St.3d 325, 335 (1994) (two harmless errors involving improper opinion testimony

and improperly admitted hospital records did not constitute cumulative error); State v.

Davis, 62 Ohio St.3d 326, 348 (1992) (“Inasmuch as the other propositions [of law] are

not well taken, their cumulative effect cannot be error.”)

      {¶65}   Appellant argues that the four alleged errors to which trial counsel did not

object amounted to cumulative error under a plain error analysis.              However, since

appellant’s other assigned errors are not well taken, their cumulative effect is not error.

Id. Moreover, each of the alleged evidentiary errors referenced by appellant was either

harmless or not error at all.     Further, because appellant has failed to demonstrate

numerous instances of trial court error, the cumulative error doctrine does not apply

here. For these reasons, we do not discern plain error.

      {¶66}   Appellant’s fourth assignment of error is overruled.




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      {¶67}   For the reasons stated in the opinion of this court, appellant’s assignments

of error are overruled. It is the judgment and order of this court that the judgment of the

Portage County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

DIANE V. GRENDELL, J.,

concur.




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