[Cite as State v. Lipford, 2014-Ohio-5730.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2014CA00004
JARED LIPFORD

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Common
                                               Pleas Court, Case No. 2013CR1337(A)


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        December 22, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                               EARLE E. WISE, JR.
Prosecuting Attorney,                          122 Central Plaza, North
Stark County, Ohio                             Canton, Ohio 44702

By: Renee M. Watson
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2014CA00004                                                      2

Hoffman, P.J.


       {¶1}      Defendant-appellant Jared Lipford appeals his conviction entered by the

Stark County Court of Common Pleas on one count of illegal assembly or possession of

chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A) and one count

of tampering with evidence, in violation R.C. 2921.12(A)(1). Plaintiff-appellee is the

state of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}      In April of 2013, Appellant moved into a residence at 1422 Shriver Avenue

Northeast, Canton, Ohio. The night he moved in, Appellant brought with him a blue

Rubbermaid container. Matthew Pallaye, Ashley Stegeman, Alexandria Murphy, and

Murphy's minor son D.G. also lived at the house.

       {¶3}      On May 1, 2013, Canton Police Department officers were dispatched to

the residence for a child welfare check based upon suspicion of a methamphetamine

lab. An active lab was located in the attic of the home. Upon entering the attic, Officers

found a blue plastic Rubbermaid bin. The officers also found 20 2-liter bottles, several

20-ounce bottles, empty Sudafed boxes, coffee filters, cold packs, Coleman fuel, crystal

drain opener, lithium batteries and drug paraphernalia.

       {¶4}      Appellant was later charged with illegal assembly or possession of

chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A), and tampering

with evidence in violation of R.C. 2921.12(A)(1). Pallaye and Murphy were charged with

one count of illegal assembly or possession of chemicals for the manufacture of drugs.

Murphy was also charged with one count of child endangering.
Stark County, Case No. 2014CA00004                                                        3


      {¶5}   Pallaye and Murphy entered into a plea agreement in exchange for their

testimony against Appellant.

      {¶6}   Prior to trial, Appellant moved the trial court to exclude evidence relative to

his use and sale of heroin and methamphetamines. The State in turn argued such

evidence should be allowed as Appellant traded both meth and heroin for the chemicals

needed to operate the methamphetamine lab. The trial court overruled the motion in

limine, but reserved a ruling should Appellant renew the motion at trial, if the testimony

became purely prejudicial.

      {¶7}   Following a jury trial, Appellant was convicted of the charges. The trial

court conducted a sentencing hearing, sentencing Appellant to seven years for illegal

assembly or possession of chemicals for the manufacture of drugs, and three years on

the tampering with evidence charge to run concurrent to the term imposed on the illegal

assembly of possession charge.

      {¶8}   Appellant appeals, assigning as error,

      {¶9}   "I. THE TRIAL COURT ERRED WHEN IT ALLOWED VARIOUS

WITNESSES TO TESTIFY TO IMPROPER CHARACTER EVIDENCE AND/OR

OTHER CRIMES, WRONGS OR ACTS EVIDENCE, IN VIOLATION OF EVIDENCE

RULE 404 RESULTING IN THE PRESENTATION OF EVIDNCE [SIC] WHICH WAS

UNFAIRLY PREJUDICIAL TO THE DEFENDANT DENYING HIM A FAIR TRIAL.

      {¶10} "II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT FAILDED [SIC] TO GIVE THE JURY A LIMITING INSTRUCTION RELATED TO THE

OTHER ACTS EVIDENCE PRESENTED TO THE JURY AT TRIAL.
Stark County, Case No. 2014CA00004                                                       4


      {¶11} "III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO

THE PREJUDICE OF THE DEFENDANT BY ALLOWING IMPROPER TESTIMONY BY

SEVERAL      WITNESSES       INCLUDING      STATEMENTS         SUPPORTED        BY    NO

PERSONAL KNOWLEDGE AND HEARSAY STATEMENTS, IN VIOLATION OF

EVIDENCE RULES 602 AND 802.

      {¶12} "IV. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

SUSTAIN THE CONVICTIONS AND THE VERDICTS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIENCE [SIC].

      {¶13} "V. DEFENANT'S [SIC] TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS TO A FAIR

TRIAL UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I, OF THE

OHIO CONSTITUTION.

      {¶14} "VI. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO

THE PREJUDICE OF THE DEFENDANT BY FAILING TO PREVENT CUMMULATIVE

[SIC] ERROR, WHICH PREVENTED DEFENDANT FROM RECEIVING A FAIR TRIAL.

                                               I.

      {¶15} In the first assignment of error, Appellant maintains the trial court erred in

allowing character evidence of other crimes or acts in violation of Evidence Rule 404.

      {¶16} Evidence Rule 404 reads,

             (B) Other crimes, wrongs or acts. Evidence of other crimes,

      wrongs, or acts is not admissible to prove the character of a person in

      order to show action in conformity therewith. It may, however, be
Stark County, Case No. 2014CA00004                                                      5


      admissible for other purposes, such as proof of motive, opportunity, intent,

      preparation, plan, knowledge, identity, or absence of mistake or accident.

      In criminal cases, the proponent of evidence to be offered under this rule

      shall provide reasonable notice in advance of trial, or during trial, if the

      court excuses pretrial notice on good cause shown, of the general nature

      of any such evidence it intends to introduce at trial.

Evid. R. Rule 404

      {¶17} Appellant argues the trial court improperly allowed testimony relative to

Appellant's use, sale or purchase of heroin; the sale or trade of methamphetamine;

conduct leading to Appellant being chased by a person with a gun; and witness

statements Appellant had cooked meth in the past.

      {¶18} We find the trial court did not err in finding some of the other acts evidence

was admissible to prove Appellant's intent to manufacture methamphetamine as intent

to manufacture is a specific element of the charged offense. Here, Appellant sold or

bartered meth to others, trading drugs for the chemicals needed to make additional

methamphetamine. Neither Appellant, nor his co-defendants, had a job or means of

income to purchase the materials needed to make the meth. Appellant used some of

the proceeds of selling meth or bartered meth to obtain heroin. Furthermore, evidence

introduced at trial established Appellant cooked or sold meth in the past and bartered

the finished product for chemicals to produce more meth, which demonstrated his intent

to manufacture methamphetamine with the chemicals.

      {¶19} At trial Stegeman testified she gave Appellant a ride, believing he was

going to his dad's house. She testified,
Stark County, Case No. 2014CA00004                                                  6


           Q. So what happens - - now, you mentioned a couple times about

     the police coming to your house. What happens the day the police come

     to your house?

           A. Jared asked us for a ride to his dad's house to go get some of

     his clothes or something from his dad's house. And when I told him I

     didn't know how to get there and he was giving me directions - - when he

     was giving me the directions, it became clear to me that we weren't going

     to his dad's house. He took me to a location that I knew that they were

     buying heroin from, and I freaked out. I told him this is not happening.

     And he told me just, you know, pull over the car and he got out.

           And then when he got back in the car after going into what I found

     out was the heroin dealer's house, he said something to somebody on the

     street as he was getting in the car, and that person chased us and they

     had a gun - -

           MS. BIBLE: I'm going to object at this point.

           THE WITNESS: - - and everything.

           THE COURT: Overruled.

           BY MS. SCHNELLINGER:

           Q. Did you drive away?

           A. Yes. I drove back towards the house, and then when I realized

     this guy was still following us, I kind of took a back alley towards the

     direction of the house, told Jared and Matt to both get out of my car, I had

     to get to work. And I just told them get out, I'm going to work. Jared - -
Stark County, Case No. 2014CA00004                                                       7


      and I told Matt right before I left, Jared and Alex need to be gone by the

      time I get home or I'm done.

Tr. At 135-137.



      {¶20} We find admission of this evidence was error. However, we find the error

was harmless as there was overwhelming evidence as to Appellant's guilt in this matter.

      {¶21} Additionally, Appellant argues the trial court erred in admitting statements

made by Mr. Pallaye concerning information he had learned from the Carrollton Police

Department relative to Appellant selling meth in the past.

      {¶22} At trial, Mr. Pallaye testified,

             Q. Okay. Let's talk about that. How did that start? How did the

      meth use start?

             A. I originally found out that Jared sold meth through Carrollton

      Police Department. I was working for them and worked for the New Philly

      Police Department, and that's why I started talking to him was to nark him,

      and so just being nice to him, you know, trying to get him on my good side

      so I could do what I wanted to do, I had him come up.

Tr. At 202-203.



      {¶23} At trial, Mr. Pallaye claimed to be a confidential informant for the Carrollton

Police Department. Appellant then moved for a mistrial, as this information had not

been discussed. The following exchange occurred on the record,

             BY MS. BIBLE:
Stark County, Case No. 2014CA00004                                                   8


              Q. I want to get to the part where you're working as a confidential

     informant/nark for another agency.

              A. Yes, ma'am.

              Q. Kind of glossed over that.

              What agency were you working as for a confidential informant.

              A. For Chaz Willett mostly and the New Philly Police Department,

     and then I only worked once for the Carrollton Police, and he had given

     me a bunch of names that he wanted me to find. I can't remember his

     name at the moment though.

              Q. Okay. So this is one of the reasons you let Jared Lipford come

     over to your house is because he was on your list of people?

              A. Yes. So he would trust me and I could make buys from him

     because I didn't know him at all really. I had met him in high school but

     we never really - -

              Q. So your purpose of letting Jared Lipford in was part of your work

     as a confidential informant for a law enforcement agency?

              A. To get him to trust me, yes.

              MS. BIBLE: Your Honor, I ask to approach.

              THE COURT: You may.

              -------------------------------------

              (A conference was held at the bench outside the hearing of the

     jury.)
Stark County, Case No. 2014CA00004                                                      9


            MS. BIBLE: Your Honor, at this time I move for a mistrial. This

     information was never disclosed to me. He was clearly a confidential - -

     this is clearly exculpatory.     He is working as a CI for another law

     enforcement agency. This should have been disclosed. It's the first time I

     am hearing of it, and I'm entitled to so much more of what he was getting

     what the deal was, whether he's being paid - -

            THE COURT: As a CI you mean but not in this case?

            MS. BIBLE: That's why.

            THE COURT: I heard that because that's how I - - that's why he

     invited him over to his house is because he was the one on a list of people

     that he was supposed to check out as a CI.

            MS. SCHNELLINGER: I wasn't aware of that until today. I knew

     that they believed he had been a snitch but I was never told that until

     today. I wasn't - -

            MS. BIBLE: I move for a mistrial. This information should never

     have been - - he's clearly - - his motive for getting that, that completely

     changes the whole case of him bringing over. It's not just oh, I let this girl I

     know, I let this guy come over, started using meth. He's working as a CI.

     That changes the whole motive.

            THE COURT: Certainly surprise evidence is what I am hearing. I

     understand that but is it a violation of the discovery rules? I don't believe

     so because it's not known to the parties that can be present here. I think
Stark County, Case No. 2014CA00004                                                   10


     he's bringing it up on his own. There is no surprise evidence but I'm not

     sure.

             MS. BIBLE: Still think at this time it's grounds for a mistrial.

     Whether it's the State, you know, knows or not, it's grounds for a mistrial.

     It completely changes his motive. His motive to lie - - I'm sorry. His

     motive to lie is essential to this case to the Defense.

             THE COURT: It is in and that evidence has been brought to the

     jury's attention.

             MS. BIBLE: But I don't know the details of this; who was working

     with him, if he's getting paid. I have the right to know that. I have a right

     to file for information on a confidential informant.

             THE COURT: I think if you have outside the jury's presence inquiry

     of this witness before you complete your cross-examination.

             MS. SCHNELLINGER: Is it possible we can talk in chambers

     before we did that out of the Jury's hearing?

             ***

             THE COURT: For the record, counsel and the judges have had a

     meeting in camera.       There's been some evidence that was brought

     forward by this witness with respect to questions and whether those

     answers were known, whether it was exculpatory evidence that should

     have been discovered and brought forward in discovery and some things

     about the background.
Stark County, Case No. 2014CA00004                                                   11


              So the Court has determined that the Defense Counsel will

      continue to question the witness outside the presence of the Jury; in

      essence, to further discovery because of the surprise testimony to

      determine what else is known, what else is held. Then we will return to

      cross-examination before the Jury pending any further motions by either

      side.

              And let the record reflect that Mr. Pallaye's counsel is present for

      this questioning.

              MS. BIBLE: Thank you, Your Honor.

Tr. 233-237; 238-239.



      {¶24} The trial court allowed witness testimony concerning Mr. Pallaye's

involvement as a C.I. with various law enforcements agencies. Following the witness

testimony, Appellant's counsel stated on the record,

              THE COURT: Okay. Would you like to put a formal motion and

      arguments on the record?

              MS. BIBLE: Just briefly, Your Honor.

              I appreciate the Court allowing Defense Counsel, us to inquire of

      these witnesses outside the hearing of the Jury. It's a little bit unusual

      situation that came up from this witness.

              Yesterday I had made a motion for mistrial based on what the Jury

      hears, to whatever effect that Mr. Lipford is on the radar of some other

      police agencies as a meth user or a cooker.
Stark County, Case No. 2014CA00004                                                     12


            After listening to this, obviously the information that is given is that

     this was not known to either of the officers involved in this case, which

     means that the Prosecutor was not aware of it.

            I have discussed this with my client. I went down this morning

     downstairs to the visitation rooms and talked to him. We talked again this

     morning. I advised him we can go forward with the motion for a mistrial. If

     that wouldn't be granted, I could ask for limiting instructions or motions to

     strike, and then if that would be granted, then basically it's off limits, or I

     have explained to him that I can deal with this in cross-examination of Mr.

     Pallaye and of the police officers.

            Mr. Lipford is actually a very intelligent client; has listened to my

     advice and has agreed that we withdraw our motion for a mistrial and

     proceed on. I will just - - as a strategy I will just deal with this in cross-

     examination.

            And Jared, I just want you to confirm for the record that I have gone

     over your legal options regarding requesting a mistrial or proceeding on

     cross-examination; is that correct?

            THE DEFENDANT: Correct.

            THE COURT: And it is your request that I handle this in my cross-

     examination of Mr. Pallaye?

            THE DEFENDANT: Yes.

            THE COURT: And you're okay with me withdrawing my motion for

     mistrial?
Stark County, Case No. 2014CA00004                                                 13


             THE DEFENDANT: Yes.

             THE COURT: Okay. Mr. Lipford, you understand what that means?

             THE DEFENDANT: Yes, Your Honor.

             THE COURT: You don't know how the mistrial will be treated. I

      could grant it or deny it and then you move on with the case, but at this

      point you don't want a ruling from me?

             MS. BIBLE: We do not, Your Honor.

             THE COURT: So the Court will not make a motion or finding the

      mistrial.   At this point then it appears we have done some additional

      discovery that the Court has permitted in order to inquire as to whether

      any facts as to whether it's exculpatory or surprise evidence, and at this

      point there is not further motion pending; the Court orders then we

      proceed with bringing the Jury back in and proceed with the trial.

             We left off with cross-examination of the witness, Matthew Pallaye,

      and continue at that point. Is there anything further before we bring the

      Jury in?

             MS. SCHNELLINGER: No, Your Honor.

             MS. BIBLE: No.

             THE COURT: Okay. We will call the Jury and Mr. Pallaye.

Tr. At 286-289.
Stark County, Case No. 2014CA00004                                                       14


       {¶25} Based upon the foregoing, we find Appellant has waived the objection to

the testimony concerning information gained as a result of Mr. Pallaye's involvement as

a confidential informant.

       {¶26} Furthermore, assuming arguendo if evidence of Appellant's heroin use

and purchase thereof were erroneously admitted at the trial herein, we find the

admission was harmless error. There was overwhelming evidence introduced at trial

sufficient to find Appellant guilty of the charge herein.

       {¶27} The first assignment of error is overruled.

                                                 II.

       {¶28} In the second assignment of error, Appellant asserts the trial court erred

by failing to give the jury a limiting instruction relative to other acts evidence presented

to the jury.

       {¶29} Pursuant to our analysis and disposition of Appellant's first assignment of

error, we find the trial court did not err in instructing the jury. A limiting instructing

relative to other acts evidence was not warranted herein. Further, Appellant did not

request a limiting instruction, and the trial court was under no obligation to provide an

instruction, sua sponte.

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

                                                 III.

       {¶31} The third assignment of error challenges the trial court's admission of

alleged improper testimony by several witnesses, including alleged hearsay statements.

       {¶32} Evidence Rule 801 states,
Stark County, Case No. 2014CA00004                                                    15


             (C) Hearsay. “Hearsay” is a statement, other than one made by the

      declarant while testifying at the trial or hearing, offered in evidence to

      prove the truth of the matter asserted.

             (D) Statements which are not hearsay. A statement is not hearsay

      if:

             ***

             (2) Admission by party-opponent. The statement is offered against

      a party and is (a) the party's own statement, in either an individual or a

      representative capacity, or (b) a statement of which the party has

      manifested an adoption or belief in its truth, or (c) a statement by a person

      authorized by the party to make a statement concerning the subject, or (d)

      a statement by the party's agent or servant concerning a matter within the

      scope of the agency or employment, made during the existence of the

      relationship, or (e) a statement by a co-conspirator of a party during the

      course and in furtherance of the conspiracy upon independent proof of the

      conspiracy.

Evid. R. Rule 801

      {¶33} Appellant specifically objects to the testimony of his co-defendants Ashley

Stegeman and Matthew Pallaye, which he asserts is hearsay and based upon no

personal information.

      {¶34} At trial, Ashley Stegeman testified,

             Q. Did you ever hear the Defendant specifically the Defendant talk

      about methamphetamine or meth or making meth?
Stark County, Case No. 2014CA00004                                                   16


               A. Yes.

               Q. When was that and what was that?

               A. I knew that before he moved into our house that he had cooked

       prior to that, and that - -

               Q. How did you know that? Let me stop you.

               A. He told us that.

               Q. What did he say?

               A. He just said that they used to cook, and he was known for his

       quality of meth.

               Q. And he told you this?

               A. Yes.

               Q. What else did you learn from the Defendant?

               A. I don't know. I just - - there is just - - I don't know. It's so

       confusing to me now.

               Q. Did you ever see him specifically using meth, the Defendant?

               A. I saw him using something but I didn't know for sure what it was

       to look at it.

Tr. at 129.

       {¶35} She further testified,

               A. What I was told was Jared was upstairs in the attic cooking and every

       once in awhile Alex would go upstairs and cook as well. I don't know if she would

       actually cook or if she was just upstairs while he was cooking, but I know that

       they were both up there.
Stark County, Case No. 2014CA00004                                                       17


             Q. Did you learn where exactly this was taking place?

             A. They told me it was going on upstairs in the attic - -

             MS. BIBLE: Objection.

             THE COURT: What's your objection as to?

             MS. BIBLE: Hearsay.

             THE COURT: I would overrule.

Tr. at 133-134.

      {¶36} Matthew Pallaye testified at trial,

             Q. Where did the meth come from?

             A. That's from Jared making it in the upstairs or in the attic, one of the two.

             Q. How do you know this?

             A. Well, that's when it all kind of came to light that he was making it

      because didn't go anywhere to get it. They didn't have any money to get it. So I

      kind of you know, figured it out and was like hey, what's going on, and I mean it

      wasn't that hard to figure out.

             Q. And did you ask the Defendant what was going on?

             A. Yeah.

             Q. And what did he tell you?

             A. He was making meth.

             Q. And once he told you that he was making it, what did you do?

             A. I was scared shitless, pardon my language, because it was in my house

      and I know obviously I was going to be charged with anything that was going on

      in the house, and I wanted him to leave but at the time I wanted the drugs.
Stark County, Case No. 2014CA00004                                                       18


Tr. at 203-204

         {¶37} Stegeman and Pallaye both testified as to Appellant's statements made to

them, which were statements made by Appellant against his own interests. Further,

both had personal knowledge as to the activities in the house, and the events taking

place.

         {¶38} Accordingly, we find the trial court did not err in allowing their testimony.

The third assignment of error is overruled.

                                                 IV.

         {¶39} In the fourth assignment of error, Appellant maintains his conviction is

against the manifest weight and sufficiency of the evidence.

         {¶40} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held,

                An appellate court's function when reviewing the sufficiency of the

         evidence to support a criminal conviction is to examine the evidence

         admitted at trial to determine whether such evidence, if believed, would

         convince the average mind of the defendant's guilt beyond a reasonable

         doubt. The relevant inquiry is whether, after viewing the evidence in a light

         most favorable to the prosecution, any rational trier of fact could have
Stark County, Case No. 2014CA00004                                                       19


       found the essential elements of the crime proven beyond a reasonable

       doubt.

       {¶41} In determining whether a conviction is against the manifest weight of

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be overturned and a new trial ordered.” State v. Thompkins,

supra, 78 Ohio St.3d at 387. Reversing a conviction as being against the manifest

weight of the evidence and ordering a new trial should be reserved for only the

“exceptional case in which the evidence weighs heavily against the conviction.” Id.

       {¶42} Appellant was found guilty of one count of illegal assembly or possession

of chemicals for the manufacture of drugs or aiding abetting illegal assembly or

possession of chemicals for the manufacture of drugs, pursuant to R.C. 2925.041(A).

       {¶43} Both Ashley Stegeman and Matthew Pallaye testified Appellant brought a

blue Rubbermaid tote with him when moving into the attic of the residence. Responding

officers found a blue tote in the attic, along with materials necessary to operate a

methamphetamine lab.         Appellant cooked methamphetamine in the past, and his

codefendants testified he was upstairs in the residence involved in the operation of a

meth lab, and had told them he was engaged in the cooking of methamphetamine.

Accordingly, we find Appellant's conviction is not against the manifest weight nor based

upon insufficient evidence
Stark County, Case No. 2014CA00004                                                      20


                                                V.

       {¶44} In the fifth assignment of error, Appellant maintains he was denied the

effective assistance of trial counsel.

       {¶45} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel's error, the

result of the proceedings would have been different. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989). In other words, appellant must show that counsel's conduct so

undermined the proper functioning of the adversarial process the trial cannot be relied

upon as having produced a just result. Id.

       {¶46} Appellant argues his trial counsel was ineffective in failing to object to

hearsay testimony, and witness testimony not based on personal knowledge. Further,

Appellant argues counsel failed to object to other acts evidence, and failing to request a

limiting instruction. As discussed in our analysis and disposition of the first, second and

third assignment of error, we find some of the evidence was properly admitted and other

amounted to harmless error. We do not find the outcome of the trial would have been

otherwise but for those alleged errors.

       {¶47} Upon review of the record, Appellant has not demonstrated but for any

presumed error of counsel, the outcome of the trial would have been otherwise.

Accordingly, the fifth assignment of error is overruled.
Stark County, Case No. 2014CA00004                                                       21


                                                VI.

       {¶48} Appellant's final assignment of error asserts the trial court's cumulative

error prevented Appellant from receiving a fair trial.

       {¶49} Pursuant to our analysis and disposition of Appellant's first, second, third,

fourth, and fifth assignments of error, Appellant's sixth assignment of error is overruled.

       {¶50} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Gwin, J. and

Delaney, J. concur
