[Cite as State v. Williams, 2013-Ohio-2314.]
                           STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                  )   CASE NO. 11 JE 7
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )   OPINION AND
                                               )   JUDGMENT ENTRY
RASSOL WILLIAMS aka                            )
RASOOL HASSAN WILLIAMS                         )
                                               )
        DEFENDANT-APPELLANT                    )

CHARACTER OF PROCEEDINGS:                          Appellant’s Application to Reopen
                                                   Appeal Under App.R. 26(B)

JUDGMENT:                                          Application Denied.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Jane M. Hanlin
                                                   Prosecuting Attorney
                                                   Jefferson County Justice Center
                                                   16001 State Route 7
                                                   Steubenville, Ohio 43952

For Defendant-Appellant:                           Atty. Timothy Young
                                                   Ohio Public Defender
                                                   Atty. Kenneth R. Spiert
                                                   Assistant State Public Defender
                                                   250 East Broad Street, Suite 1400
                                                   Columbus, Ohio 43215

JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                   Dated: May 31, 2013
[Cite as State v. Williams, 2013-Ohio-2314.]
PER CURIAM.


        {¶1}     Appellant Rasool H. Williams has filed a motion to reopen Appeal No.

11-JE-7, pursuant to App.R. 26(B). Appellant is appealing his convictions for murder

and having a weapon while under a disability. Prior to filing the motion, he filed a

direct appeal to the Ohio Supreme Court which declined to accept jurisdiction.

3/13/2013 Case Announcements, 2013-Ohio-902.

        {¶2}     Pursuant to App.R. 26(B), a defendant in a criminal case may apply for

reopening of the appeal from the judgment of conviction and sentence based on a

claim of ineffective assistance of counsel. App.R. 26(B)(1). The defendant must set

forth one or more assignments of error or arguments in support that previously were

not considered on the merits or that were considered on an incomplete record due to

appellate counsel's deficient performance. App.R. 26(B)(2)(c).

        {¶3}     An application for reopening shall be granted if there is a genuine issue

as to whether the defendant was deprived of the effective assistance of counsel on

appeal. App.R. 26(B)(5). If the court grants the application, it shall appoint counsel

to represent the defendant if he is indigent and not currently represented. App.R.

26(B)(6)(a). If the application is granted, the case shall proceed as on an initial

appeal except that the court may limit its review to arguments not previously

considered, and the briefs on reopening shall address the claim that prior appellate

counsel rendered deficient performance which prejudiced the defendant.            App.R.

26(B)(7).

        {¶4}     Ineffective assistance of appellate counsel is reviewed using the same

test as ineffective assistance of trial counsel, the two-pronged analysis taken from
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Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The defendant must prove that counsel's conduct fell below an objective standard of

reasonableness and that prejudice occurred, which means that there was a

reasonable probability the results would have been different. See State v. Were, 120

Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶10-11. Thus, the applicant must

prove that counsel was deficient for failing to raise the issues he now presents and

that there was a reasonable probability of success had he presented those claims on

appeal. Id. at ¶11, citing State v. Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770

(2001). In seeking reopening, the appellant bears the burden of demonstrating that

there is a “genuine issue” as to whether he has a “colorable claim” of ineffective

assistance of appellate counsel. State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d

696 (1998). We recognize that Ohio law presumes the competence of a properly

licensed attorney at both the trial and appellate level. State v. Lott, 51 Ohio St.2d

160, 555 N.E.2d 293 (1990); State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476

(1988).

      {¶5}   In this appeal, Appellant's counsel originally presented two assignments

of error raising issues as to the sufficiency and manifest weight of the evidence, and

challenging the jury instructions.   Appellant now contends that appellate counsel

should have raised four more assignments of error: prosecutorial misconduct while

cross-examining Appellant and during closing argument; improper admission of

“other bad acts” evidence in violation of Evid.R. 404; improper impeachment and

refreshing of witness testimony using the witness's grand jury transcripts; and
                                                                                      -3-

ineffective assistance of trial counsel for failure to object to the aforementioned

errors.

          {¶6}   Appellant’s claims as to alleged error are dubious, at best.        For

example, Appellant argues that the prosecutor committed grievous error by calling

Appellant a “liar” during closing argument. Yet, the record reflects that Appellant

admitted that he was a liar. Appellant admitted that he lied to his girlfriend Sabrina

Isaac about events that occurred on the morning of the shooting.          (Tr., p. 832.)

Appellant admitted that he lied about other facts during his testimony: “Q[uestion:]

You have admitted on the stand there's a whole bunch of stuff that you have lied

about; correct? A[nswer:] I did.” (Tr., p. 868.) There would not have been any error

in calling Appellant a liar when he testified at least twice that he was a liar. If a

defendant testifies that he is liar, a prosecutor is permitted to use that fact at trial,

whether during questioning or in closing argument. State v. Vasarab, 8th Dist. No.

34284, 1975 WL 183020 (Nov. 20, 1975.) See also, United States v. Bivona, 487 F.

2d 443, 446 (2d Cir.1973) (defendant's testimony characterized as “lies”); United

States v. Lucianetti, 369 F.Supp. 358, 363-364 (E.D.Pa.1972) (defendant referred to

as a “liar” and “crook”).     The mere fact that the prosecutor chose to accurately

characterize Appellant with the word “liar” was not error in this case.

          {¶7}   Similarly, most of the examples of “other bad acts” character evidence

cited by Appellant are actually facts required to prove the prosecutor's case, or are

simply background circumstances surrounding the crime. Evid.R. 404(B) precludes

the admission of evidence of other crimes, wrongs or acts to prove the character of
                                                                                      -4-

the accused in order to show that the accused acted in conformity with that character

trait. Evidence of “other acts of wrongdoing” is admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-

5695, 983 N.E.2d 1278.         A trial court is given broad discretion in admitting and

excluding evidence, including “other bad acts” evidence. State v. Maurer, 15 Ohio

St.3d 239, 265, 473 N.E.2d 768 (1984). Ultimately, Appellant would have needed to

show that the trial court abused its discretion in admitting the evidence, and this is a

very difficult burden to meet on appeal.

       {¶8}      Appellant objects to the discussion of information regarding Appellant's

children and the mothers of those children, his employment status in the months

leading up to the crime, and the fact that he wrecked his girlfriend's car. None of

these items are necessarily examples of character evidence in and of themselves.

They were simply facts supporting the state's rather complicated case. Appellant

also objects to the prosecutor’s references to whether he was or was not “a good

dad.” The record indicates that Appellant first brought up this issue. (Tr., pp. 372,

375.) We have already dealt with the prosecutor's references to Appellant as a liar.

As we continue through the list of evidentiary challenges that Appellant now seeks to

raise, it does not appear that any of the alleged errors rises to the level of an abuse

of discretion.

       {¶9}      Appellant now objects to the prosecutor's use of grand jury testimony to

refresh the memory of witnesses or impeach their testimony. Appellant contends that
                                                                                     -5-

the procedure for using grand jury testimony was violated, and that appellate counsel

should have raised these errors on appeal. Once again, since these are evidentiary

matters, the standard of review was abuse of discretion, which is a high standard for

Appellant to meet. See, e.g., State v. Bedford, 39 Ohio St.3d 122, 529 N.E.2d 913

(1988) (Evid.R. 612 error reviewed for abuse of discretion); State v. Asher, 112 Ohio

App.3d 646, 679 N.E.2d 1147 (1st Dist.1996) (Evid.R. 607 error reviewed for abuse

of discretion). Appellant does not deny that grand jury testimony may be used for

impeachment or to refresh memory under Evid.R. 607 and 612.                Notably, no

objections were raised by counsel, thus placing Appellant under the even higher

“plain error” standard of review. Evid.R. 103. Given these considerations, we cannot

find that the result of the appeal would have been different even if these evidentiary

matters had been raised.

      {¶10} Appellant’s predominant complaint running throughout the application to

reopen is that prosecutorial misconduct occurred, especially during closing argument.

In deciding whether a prosecutor's conduct rises to the level of misconduct, a court

determines whether the prosecutor's actions were improper, and, if so, whether the

defendant's substantial rights were actually prejudiced. State v. Smith, 14 Ohio St.3d

13, 14, 470 N.E.2d 883 (1984). A prosecutor is afforded wide latitude during closing

argument; it is within the trial court's sound discretion to determine whether a

comment has gone too far. State v. Benge, 75 Ohio St.3d 136, 661 N.E.2d 1019

(1996). A judgment may only be reversed for prosecutorial misconduct if the conduct

deprived the defendant of a fair trial, i.e., if the result of the trial would have been
                                                                                     -6-

different absent the misconduct. Lott, supra, 166; State v. Skidmore, 7th Dist. No. 08

MA 165, 2010-Ohio-2846, ¶44.

       {¶11} In this case there were multiple eyewitnesses, extensive forensic

evidence, and a defense theory that was accurately described by the prosecutor as

being based on “invisible bullets, invisible casings, invisible shooters and a fact

pattern that just doesn't match the evidence at all.” (Tr., p. 907.) Appellant's counsel

thoroughly cross-examined witnesses, raised numerous objections, and valiantly

presented the defense that Appellant provided. Although the record does reflect that

the prosecutor (without objection) went somewhat too far during closing argument

when referring to otherwise relevant evidence about Appellant's children,

relationships with women, possession of marijuana, and employment as character

traits, we cannot conclude that this resulted in an unfair trial. Certainly we cannot

conclude that the result would have been different had the errors not occurred.

Appellant is not entitled to reopen his appeal for harmless error.

       {¶12} Assuming arguendo that one or more of the alleged errors can actually

be established, the record does not reflect that either prong of Strickland has been

met. Simply because there may be errors in the trial court record other than those

raised in the direct appeal does not mean that counsel was required to raise these

alleged errors. Appellate counsel is not required to raise every possible issue in

order to render constitutionally effective assistance. State v. Tenace, 109 Ohio St.3d

451, 2006-Ohio-2987, 849 N.E.2d 1, ¶7, citing Jones v. Barnes, 463 U.S. 745, 751,

103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). “ ‘Most cases present only one, two, or three
                                                                                       -7-

significant questions.... Usually, ... if you cannot win on a few major points, the others

are not likely to help, and to attempt to deal with a great many in the limited number

of pages allowed for briefs will mean that none may receive adequate attention. The

effect of adding weak arguments will be to dilute the force of the stronger ones.’ R.

Stern, Appellate Practice in the United States 266 (1981).” Jones, 463 U.S. at 752.

       {¶13} The additional assignments of error that Appellant now asserts fall well

within the category of weak arguments. For example, if counsel had alleged that the

prosecutor erred by calling Appellant a liar when Appellant's own testimony identifies

himself as a liar. Counsel made choices as to which errors to present on appeal, and

we normally defer to those choices as tactical decisions.

       {¶14} For an appeal to be reopened under App.R. 26(B) and Strickland, the

record must indicate both harm and prejudice, i.e., we must find that there is a

reasonable probability that the result of the appeal would have been different had the

additional assignments of error been raised. State v. Mack, 101 Ohio St.3d 397,

2004-Ohio-1526, 805 N.E.2d 1108; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). As discussed, the evidence in this case leads overwhelmingly in favor of

the conviction. Appellant's own testimony in his defense removed any possible doubt

on a variety of matters that the state had the burden to prove, such as whether he

was at the scene of the crime and whether he shot at the victim. In the face of such

evidence, Appellant cannot show that the result of his appeal would have been

different if appellate counsel had included additional evidentiary challenges on

appeal that likely would have been rejected, or had alleged prosecutorial misconduct
                                                                                    -8-

using examples that do not reflect misconduct. It would also have been futile to

allege ineffective assistance of trial counsel when the record shows that trial counsel

performed admirably under the circumstances.            Because Appellant has not

established either prong of the Strickland test, he has provided no reason to reopen

this appeal pursuant to App.R. 26(B) and the application to reopen is denied.


Waite, J., concurs.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.
