[Cite as State v. Spring, 2017-Ohio-768.]



                           STATE OF OHIO, JEFFERSON COUNTY
                                   IN THE COURT OF APPEALS
                                            SEVENTH DISTRICT

STATE OF OHIO                                        )
                                                     )
        PLAINTIFF-APPELLEE                           )
                                                     )            CASE NO. 15 JE 0019
VS.                                                  )
                                                     )                  OPINION
JEFFREY M. SPRING, SR.                               )
                                                     )
        DEFENDANT-APPELLANT                          )

CHARACTER OF PROCEEDINGS:                            Criminal Appeal from the Court of
                                                     Common Pleas of Jefferson County,
                                                     Ohio
                                                     Case No. 15 CR 8

JUDGMENT:                                            Affirmed.

APPEARANCES:
For Plaintiff-Appellee                               Attorney Jane Hanlin
                                                     Jefferson County Prosecutor
                                                     16001 State Route 7
                                                     Steubenville, Ohio 43952

For Defendant-Appellant                              Attorney Timothy Young
                                                     Ohio Public Defender
                                                     Attorney Allen Vender
                                                     Assistant Public Defender
                                                     250 East Broad Street, Suite 1400
                                                     Columbus, Ohio 43215

JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                     Dated: March 3, 2017
[Cite as State v. Spring, 2017-Ohio-768.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, Jeffery Spring, appeals the trial court judgment
convicting him of murder, a firearm specification, tampering with evidence, and
sentencing him accordingly. Spring asserts trial counsel was constitutionally
ineffective. As Spring's assignment of error is meritless, the judgment of the trial court
is affirmed.
                                  Facts and Procedural History
        {¶2}     Spring called 911 to report that he had killed Stephen Boyer; he had
sustained two gunshot wounds and his body was found outside of Spring's home.
Spring was indicted on one count of murder, R.C. 2903.02(A), an unclassified felony,
with an attached firearm specification, R.C. 2941.145; and one count of tampering
with evidence, R.C. 2921.12(A)(1). Spring made numerous inconsistent statements
to police about the circumstances surrounding Boyer's death, regarding which
defense counsel did not file a motion to suppress.
        {¶3}     The following facts were adduced during Spring's jury trial. Both Spring
and the victim had been drinking alcohol on the day Boyer was killed; Spring
estimated that he had consumed fifteen beers and Boyer's blood alcohol content
upon his autopsy was .292. On the 911 call, Spring claimed Boyer was trying to
break into his home while brandishing a knife and seemed to indicate that there was
more than one person in his home when this attempted break-in occurred.
        {¶4}     When police arrived, they found Spring was the only one in the home.
There was no sign of forced entry at his residence and no sign of a struggle inside of
his home. Police located the victim's jacket and the victim's cell phone in Spring's
living room.
        {¶5}     They found Boyer dead, having sustained gunshot wounds to the head
and chest. His body was lying in front of Spring's front door; however, there was a
bloodstain several feet away—not near the front door—that appeared to have been
swept up with a broom. A bloodstained push-broom was also found outside.
        {¶6}     Officers placed Spring in the back seat of a cruiser and questioned him.
After being provided with Miranda warnings, Spring stated: "I shot him once, went
                                                                                 -2-


outside and shot him again in the head to make sure he was dead."
       {¶7}    Officers observed the victim had a knife in his hand, but they also
noticed that the placement of the knife seemed odd given the condition of the body
and the gunshot wound suffered by the victim. The knife was recovered and sent to
the BCI crime lab for processing. The only DNA recovered from the handle and the
blade of the knife belonged to Spring; there was no DNA from the victim on that knife.
       {¶8}    Officers attempted to find the firearm used in the crime, a Smith and
Wesson .38 revolver, and Spring made various claims as to where the weapon might
be, first claiming it was in his bedroom, and later stating that it might have been in the
couch. Officers later located the weapon during a search of the residence, inside of a
concealed cabinet in the kitchen. The gun contained two spent shell casings and four
live rounds.
       {¶9}    An autopsy of the victim's body resulted in a bullet being recovered
from the victim's abdomen. That bullet was a .38 caliber bullet and additional testing
by the crime lab resulted in the conclusion that the bullet found inside Boyer's body
was fired from the .38 Smith and Wesson revolver found in Spring's kitchen.
       {¶10} Approximately ten hours after he made the 911 call, Spring was
interviewed by Sheriff Fred Abdalla while in sheriff's department custody; this
interview was videotaped. Before questioning Spring, Abdalla provided him the
Miranda warnings, and Spring indicated he understood his rights and wished to
waive them.
       {¶11} Spring admitted to the sheriff that he first shot the victim in the
abdomen and then shot him again in the head. He explained he inflicted the second
shot because he did not want to see the victim suffer. This statement by Spring
matched the conclusions of the medical examiner, who indicated that the victim was
alive when the shot to the head was fired. Spring also admitted he attempted to clean
up the blood outside with a broom, and that he placed the knife in the victim's hand
after he shot him.
       {¶12} Spring elected to testify in his own defense at trial, claiming that he shot
                                                                               -3-


the victim accidentally through his closed front door. Spring testified that he believed
the victim had left the premises, and therefore did not think he would hit anyone
when he fired his weapon through the door. Spring claimed that prior to the shooting
there were only seven bullet holes in the front door, an assertion supported by the
testimony of his son. After the shooting, investigators found there were nine bullet
holes in the front door.
       {¶13} Spring admitted he lied when he reported the victim broke into his
house and had a knife. Spring said he and the victim had been together at his home
for approximately 30 to 40 minutes, when the two began to argue. At some point, he
became agitated after observing his prescription medication bottles were moved; he
suspected the victim had attempted to steal from him. He then pushed the victim out
of his house. Subsequently, he shot two times through the closed front door.
       {¶14} Spring said he discovered the victim's dead body outside when his
dogs began to bark. Spring conceded he took the broom and was trying to sweep
away the blood stains and that he also "got some disinfectant and sprayed it around"
that area. Only after his attempt at cleaning up, did Spring call 911. As for the knife,
Spring said he "subconsciously" planted it in the victim's hand. When asked by
defense counsel whether he lied about the knife because he was afraid, Spring
remarked: "I wasn't. I wasn't afraid."
       {¶15} Upon cross-examination, Spring could not explain how the bullets
would have taken a 90 degree turn once going through the door, to hit the victim
where the bloodstain was found outside. Spring asserted that three separate law
enforcement officers must have misheard him when they reported he said he shot
Boyer once and then went out and shot him again in the head to make sure that he
was dead. Spring was unable to explain his recorded statement to the sheriff,
wherein he admitted that he shot the victim in the head because he "didn't want to
see him suffer."
       {¶16} Spring was found guilty by a jury on all counts and was sentenced to an
aggregate prison term of 18-years to life.
                                                                                -4-


                         Ineffective Assistance of Counsel
      {¶17} In his sole assignment of error, Spring asserts:

      Jeffrey Spring received ineffective assistance of counsel because his
      attorney failed to file a motion to suppress his statements to the police,
      when he did not knowingly, intelligently, and voluntarily waive his
      Miranda rights; failed to object to prosecutorial misconduct in closing
      argument; and failed to object to witness opinion which was not based
      on firsthand knowledge or expertise.

      {¶18} To prove ineffective assistance of counsel, the defendant must satisfy a
two-prong test; that counsel's performance has fallen below an objective standard of
reasonable representation, and that he was prejudiced by counsel's performance.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), at paragraph two of the
syllabus. To demonstrate prejudice, the defendant must prove that, but for counsel's
errors, the result of the trial would have been different. Id., paragraph three of the
syllabus. In Ohio, a properly licensed attorney is presumed to be competent and the
burden is on the defendant to prove otherwise. State v. Hamblin, 37 Ohio St.3d 153,
155, 524 N.E.2d 476 (1988).
                       Failure to File a Motion to Suppress
      {¶19} Spring first asserts that trial counsel was ineffective for failing to file a
motion to suppress statements he made to law enforcement. Counsel's failure to file
a motion to suppress does not constitute ineffective assistance of counsel per se.
State v. Brown, 115 Ohio St.3d 55, 2007–Ohio–4837, 873 N.E.2d 858, ¶ 65, citing
State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). "To establish
ineffective assistance of counsel for failure to file a motion to suppress, a defendant
must prove that there was a basis to suppress the evidence in question." Brown at ¶
65.
      {¶20} Further, as this court has recently explained: "[I]n evaluating deficient
                                                                             -5-


performance for failure to file a suppression motion, the court must consider whether
counsel made a tactical decision. Madrigal, 87 Ohio St.3d at 389 (noting that a
suppression motion is not without risks). Evidence that counsel fully investigated the
case is relevant in this deficiency evaluation." (Internal citation omitted.) State v.
Albright, 7th Dist. No. No. 14 MA 0165, 2016-Ohio-7037, ¶ 58-59.
       {¶21} Spring asserts counsel should have filed a motion to suppress the
statements he made to police at the scene and to Sheriff Abdalla during an interview
at the department 10 hours later. He does not dispute that he was read his Miranda
rights; rather, he claims he could not have validly waived those rights because he
was intoxicated.
       {¶22} "When a suspect is questioned in a custodial setting, the Fifth
Amendment requires that he receive Miranda warnings to protect against compelled
self-incrimination."   State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999
N.E.2d 557, ¶ 34 (2013); Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966). However, "a suspect may then knowingly and intelligently
waive these rights and agree to make a statement. If a defendant later challenges a
confession as involuntary, the state must prove a knowing, intelligent, and voluntary
waiver by a preponderance of evidence." Id., citing Miranda at 475, and Colorado v.
Connelly, 479 U.S. 157, 168–169, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
       {¶23} To determine whether a valid waiver occurred, courts should " 'consider
the totality of the circumstances, including the age, mentality, and prior criminal
experience of the accused; the length, intensity, and frequency of interrogation; the
existence of physical deprivation or mistreatment; and the existence of threat or
inducement.' " Wesson at ¶ 35, quoting State v. Edwards, 49 Ohio St.2d 31, 358
N.E.2d 1051 (1976), paragraph two of the syllabus; see also Arizona v. Fulminante,
499 U.S. 279, 285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
       {¶24} In State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984), the
defendant was shot in the chest by police during the course of a bank robbery. He
suffered a severe spinal cord injury, and upon admission to the hospital, was in
                                                                                -6-


shock, cold and clammy, and his blood pressure was very low due to blood loss.
According to a doctor, at the time of his admission to the hospital the defendant could
not understand questions. However, after the defendant's blood pressure had
improved, detectives questioned him about his involvement in the bank robbery. Id. at
165–167.
       {¶25} The Supreme Court of Ohio upheld the trial court's denial of the
defendant's motion to suppress, thus concluding his Miranda waiver was valid. Id. at
175. The Court noted that detectives received a doctor's permission to conduct the
interview, which lasted no more than forty-five minutes, and that the defendant was
conscious throughout. The defendant was able to converse in a normal voice and
indicated he understood his rights and expressed a willingness to talk to police. The
officers ceased their interrogation when the defendant indicated that he no longer
wished to speak with them. Id. at 172–173.
       {¶26} Other courts have addressed the more specific issue of the defendant's
intoxication and its effect on the Miranda waiver. "The presence of drugs and/or
alcohol does not render a statement inadmissible per se. * * * Rather, while their
presence should be considered, 'the amount must sufficiently impair the confessor's
ability to reason.' " State v. Fairley, 3d Dist. No. 5–03–41, 2004-Ohio-2616, ¶ 21,
quoting State v. Stewart, 75 Ohio App.3d 141, 147, 598 N.E.2d 1275 (11th
Dist.1991).
       {¶27} In Fairley, the Third District held the defendant had validly waived his
Miranda rights even though the defendant admitted he was drunk and had used
cocaine earlier in the day and the deputy noted “moderate odor of alcoholic
beverage” coming from the defendant, saw a can of beer between his legs, and
noticed that his eyes were glassy and blood shot. Id. at ¶ 20. The panel reached this
conclusion because according to the deputy, the defendant "did not appear to have
trouble understanding any of his rights, did not act confused, did not have slurred
speech, and did not exhibit any other signs of intoxication, such as difficulty standing,
maintaining train of thought, and/or finishing sentences." Id. In addition, the deputy
                                                                              -7-


said the defendant "indicated he understood each right read to him by the deputy,
that he had no questions concerning these rights, and that he would be willing to
waive those rights and talk to the deputy." Id.
       {¶28} In State v. West, 2d Dist. No. 23547, 2010-Ohio-1786, ¶ 16-18, the
Second District held that the defendant validly waived her Miranda rights even where
her breathalyzer test produced a result nearly three times the legal limit. The court
reasoned    that the defendant "was         not incoherent, disoriented,    or losing
consciousness or falling asleep inside the cruiser," and that the "evidence failed to
demonstrate she did not understand her circumstances or what was going on, or that
she did not respond appropriately to the officer's questions, she indicated to the
officer that she understood the rights he read to her and that she was willing to waive
them and talk to him." Id. at ¶ 18.
       {¶29} Finally, in State v. Stanberry, 11th Dist. No. 2002–L–028, 2003-Ohio-
5700, the defendant ingested nine Valiums, three doses of acid, and eight beers
approximately five hours before waiving his Miranda rights and being questioned by
police. The Eleventh District concluded there was no evidence to suggest that the
defendant's ability to reason was sufficiently impaired so as to invalidate his Miranda
waiver. Id. at ¶ 24-35.
       {¶30} With the foregoing case law in mind, a motion to suppress Spring's
statements to police would not have been successful. The first custodial statement
Spring made was to three officers responding to Spring's house after his 911 call.
These officers heard Spring state he had shot Boyer, and then went outside and shot
him again to make sure he was dead. Spring testified that he had 15 beers on the
day of the shooting, but conceded that he normally drinks 12 or 13 per day and had
been doing so for at least a decade. He stated he was "pretty drunk" and had also
been taking prescription painkillers and Zanaflex, along with Valium that day. One of
the responding officers conceded Spring had an odor of alcoholic beverage and that
his speech was slurred.
       {¶31} However, we have the benefit of the 911 call audio recording as part of
                                                                                -8-


the record, which Spring made shortly before those officers arrived. On the call,
although Spring's speech does sound slurred, Spring was coherent and calm and
was able to correctly report his name, address, phone number and the victim's name.
The officers indicated that Spring was calm and appeared to be able to understand
the questions asked of him.
       {¶32} The lengthier custodial interview by Sheriff Abdalla took place 10 hours
after Spring's arrest. This interview was videotaped and is part of the record. Spring
appears coherent and mostly calm. He was not slurring his speech, and did not
appear intoxicated. He was even able to correct Abdalla about the number of times
he had been Mirandized. Abdalla stated that he was about to read him his rights for
the third time, when Spring correctly noted that actually it was only the second time
he had been Mirandized since being placed in custody for the homicide. Abdalla went
through each of the Miranda rights and gave Spring the opportunity to ask questions
about each. Spring indicated he understood the rights he would waive by making a
statement. Further, Abdalla testified that Spring never claimed to need medication
during the interview and denied that Spring appeared to be suffering from any type of
memory loss or confusion.
       {¶33} Based on these facts and the case law described above, a motion to
suppress statements Spring made to police at the scene and to Sheriff Abdalla would
not have succeeded. Counsel is not required to file meritless motions. Accordingly,
counsel was not constitutionally ineffective in this regard.
     Failure to Object to Alleged Prosecutorial Misconduct during Closing
       {¶34} Next, Spring asserts counsel was ineffective for failing to object to
several alleged instances of prosecutorial misconduct during closing statements.
       {¶35} The test regarding prosecutorial misconduct in closing statements is
two-fold. A reviewing court must determine whether the remarks were improper, and
if so, whether they prejudicially affected the substantial rights of the defendant. State
v. Treesh, 90 Ohio St.3d 460, 464, 739 N.E.2d 749 (2001), citing State v. Smith, 14
Ohio St.3d 13, 14, 470 N.E.2d 883 (1984).
                                                                                -9-


      {¶36} As this court has explained:

             Parties have wide latitude in their closing statements, particularly
      "latitude as to what the evidence has shown and what inferences can
      be drawn from the evidence." State v. Diar, 120 Ohio St.3d 460, 2008–
      Ohio–6266, 900 N.E.2d 565, at ¶ 213. A prosecutor may state his
      opinion if it is based on the evidence presented at trial. Id. A prosecutor
      may not state his personal belief regarding the credibility of a witness.
      State v. Jackson, 107 Ohio St.3d 53, 2005–Ohio–5981, 836 N.E.2d
      1173, at ¶ 117. However, a prosecutor may comment upon the
      testimony of witnesses and suggest the conclusions to be drawn. State
      v. Hand, 107 Ohio St.3d 378, 2006–Ohio–18, 840 N.E.2d 151, at ¶ 116.
      A prosecutor may even point out a lack of credibility of a witness, if the
      record supports such a claim. See State v. Powell, 177 Ohio App.3d
      825, 2008–Ohio–4171, 896 N.E.2d 212, at ¶ 45.

State v. Wolff, 7th Dist. No. 07 MA 166, 2009–Ohio–7085, ¶ 13.
      {¶37} However, a prosecutor "may not make excessively emotional
arguments tending to inflame the jury's sensibilities." State v. Tibbetts, 92 Ohio St.3d
146, 168, 749 N.E.2d 226 (2001). Prosecutors may not deliberately saturate trials
with emotion and obtain a conviction based solely on the inflammation of fears and
passions, rather than proof of guilt. State v. Keenan, 66 Ohio St.3d 402, 409, 613
N.E.2d 203 (1993).
      {¶38} Spring first asserts that trial counsel was ineffective for failing to object
to the prosecutor's comment during her rebuttal closing that Spring was "a snake."

             I would say when you listen to his statement the night that he
      committed this crime you're listening to a drunk and a murderer. Today
      you just listened to a murderer which would bring me to the only thing
      that I agree with Mr. Miller about in this case. There is a snake in this
                                                                                      - 10 -


       case and its name is Jeffrey M. Spring. Thank you.

       {¶39} However, as Spring concedes, defense counsel had just characterized
the victim as a snake, during an anecdote in his own closing:

              You're out on a little over 11 acres somewhere. Eleven some
       acres is what Jeff, Junior said. You're out there in the middle of the
       night and someone comes to the house. What happened in the house?
       Could it be that Mr. Boyer, yeah, was a thief, that he was in the room,
       that he was run out of the house?

              You know, I remember a long time ago that I lived out in the
       country in Muskingum County. We were playing ball outside and out in
       the middle there's a - - you look and there's a copperhead on the
       ground. I'll never forget. My mom came out and she had a hoe and she
       hit it and she hit it and she hit it and she hit it and she hit it and she hit it
       and she hit it until it was dead. There's a snake in this case that came
       to a place that he wasn’t invited to where he didn't belong.

       {¶40} When reviewed in the context of the entire closing statements of both
parties, the comment calling Spring a snake does not rise to the level of misconduct;
it was a reasonable rebuttal to defense counsel's closing statement.
       {¶41} Second, Spring asserts it was improper for the State, during its rebuttal
closing to point out to the jury that both sides may call witnesses. Again, the
prosecutor was merely responding to statements made by defense counsel in his
closing about how there were unanswered questions about white pills found next to
the victim's body.
       {¶42} Specifically, defense counsel stated in his closing: "Whose pills were
outside in the cellophane? What did Jeff say was moved? His pill bottle. What was
never sent to a lab? The pills. Whose were they? Who did they belong to?"
       {¶43} During rebuttal, the prosecutor stated:
                                                                                - 11 -


              This issue about the drugs or the pills that were outside, first of
       all, the Defendant today said his pills were in bottles and the pills that
       are outside of his house are in some cellophane wrapper. So, who
       knows if they're the victim's or the Defendant's or one of his kids or one
       of the dirt-balls he claims his daughter brings around the house. Who
       knows who the pills belong to. We do know that there were no drugs in
       the victim's body whatsoever.
              And you know who else has the right to call witnesses just as
       you heard today? The Defendant. Defense Counsel can call any
       witness that he wants. If he thought the pills were so important or he
       thought there was some other angle to look at things, they can bring
       you anybody that they want and they didn't.

       {¶44} These remarks were not improper. At no point did the State shift the
burden of proof to Spring and at no point did the State advise the jury that Spring had
to testify on his own behalf.
       {¶45} Further, given the overwhelming evidence against Spring, he cannot
demonstrate he was prejudiced by the prosecutor's remarks. Thus, counsel was not
ineffective with regard to its failure to object to these statements during closing
arguments.
                 Failure to Object to Improper Opinion Testimony
       {¶46} Spring next asserts counsel was ineffective for failing to object to Sheriff
Abdalla's testimony that he assumed the victim was returning from urinating outside
Spring's house when he was shot by Spring. He contends his testimony constitutes
improper opinion from a lay witness.
       {¶47} "Witnesses must testify based on their personal knowledge." State v.
Robinson, 7th Dist. No. 05 JE 8, 2007-Ohio-3501, ¶ 32, citing Evid.R. 602. Opinion
testimony may be given by lay witnesses only when it is: (1) rationally based on the
perception of the witness and (2) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue. Evid.R. 701.
                                                                               - 12 -


       {¶48} Expert opinion may be given when the witness does not have firsthand
knowledge of the matter, but the witness must be first qualified as an expert. Evid.R.
702(B).
       {¶49} Spring takes issue with the following testimony from Sheriff Abdalla:

               And what I noticed, where you saw that refrigerator in the
       picture, just straight ahead from that you go up a little grade. There's
       like a little road there and gravel and I could see where somebody was
       urinating and I'm — I'm assuming at that time that that's where the
       victim come out to relieve himself, come out of the house to relieve
       himself and as he stepped back down and come onto the porch and got
       to the refrigerator was where he was shot at and then moved over
       towards the door.

       {¶50} This testimony was not improper. Abdalla responded to the scene of the
homicide and was able to make observations. During his later interview of Spring, he
told Spring that he observed a patch of urine near the house. Based upon the
location of the urine and the location where the body found, Abdalla opined that the
victim had gone outside to urinate when he was shot. This is rationally based upon
Abdalla's perception and observation of the scene and is helpful testimony or the
determination of a fact in issue. Evid.R. 701.
       {¶51} Assuming arguendo defense counsel should have objected to this
testimony, given the overwhelming evidence against Spring, and the fact that
Abdalla's assumption had little bearing on Spring's guilt, the failure to object was not
prejudicial.
       {¶52} Spring also asserts counsel should have objected to Ohio BCI Special
Agent's Edward Lulla's opinion testimony about blood stains and spatter at the crime
scene, since the agent was never deemed an expert witness by the trial court. He
takes issue with the following testimony:
                                                                                  - 13 -


              Agent Lulla: * * *[T]here's some little drip stains which is blood
       being deposited on the ground as if somebody was walking, non - - just
       passive drops. They're not a blood spatter. It's just a blood-letting event
       like someone's been cut or wounded and the blood is just dripping.
              Prosecutor: Okay. And that's different than what you describe as
       blood spatter.
              Agent Lulla: Yes.
              Prosecutor: Okay. How so?
              Agent Lulla: Spatter is though some force behind the blood. A
       drip stain is just - - there's no force behind it. It's just falling.
              Prosecutor: If I ask you if you were standing there and you were
       injured to the point that blood was - - would that be what you would
       describe as drips?
              Agent Lulla: If I have a cut and I'm standing here and it's dripping
       out of my wound, that's just a drip* * * But if I would [ ] swing my arm it's
       going to spatter.

       {¶53} Spring is correct that Agent Lulla was never deemed an expert witness
by the trial court and that defense counsel could have objected to the quoted
testimony.
       {¶54} However, had the State so requested, Agent Lulla likely would have
been deemed an expert by the trial court; it appears the State inadvertently failed to
make such a request. Special Agent Lulla testified that he is assigned to BCI's crime
scene unit and that he processes crime scenes for local agencies. He stated he had
worked for BCI for 18 years and had been a law enforcement officer for 13 years
prior to that. His report was admitted into evidence.
       {¶55} Further, there is some precedent allowing for similar testimony by
investigating officers even where they are not qualified as experts. In State v. Griffin,
1st Dist. No. C–020084, 2003-Ohio-3196, the First District held that a detective's
opinion testimony that the blood on the defendant's shirt was consistent with "blow-
                                                                                - 14 -


back" spatter from a gunshot wound, was admissible in murder prosecution because
such testimony came while the detective was explaining what evidence led him to
disbelieve defendant's story that victim had committed suicide, and the detective had
personal knowledge of the investigation and was competent to testify about the
meaning he attributed to the way the blood on defendant's shirt looked. Id. at ¶ 28-
29, 31-35.
       {¶56} Here, the photographs of the blood at the scene speak for themselves.
They clearly depict various areas that appear to be blood drips versus splatters. This
court concludes, based upon Griffin, that it was proper for Agent Lulla to provide
opinion testimony about the blood spatter.
       {¶57} And in light of the overwhelming evidence presented which supports
Spring's guilt, there was no prejudice, even assuming counsel erred by failing to
object to Agent Lulla's testimony.
                                     Cumulative Error
       {¶58} Finally, Spring asserts that the cumulative effect of trial counsel's errors
was prejudicial and requires a new trial. Under the doctrine of cumulative error, a
judgment may be reversed when the cumulative effect of errors deprives a defendant
of his or her constitutional rights, even though such errors are not prejudicial
singularly. State v. DeMarco, 31 Ohio St.3d 191, 196–197, 509 N.E.2d 1256 (1987).
This court has applied the doctrine to reverse based upon ineffective assistance of
counsel only in exceptional situations where numerous errors by trial counsel
permeated the trial proceedings. See, e.g., State v. Irwin, 184 Ohio App.3d 764,
2009-Ohio-5271, 922 N.E.2d 981, ¶ 257 (7th Dist.)
       {¶59} Here, there were arguably only one or perhaps two minor errors made
by counsel. The evidence against Spring, in contrast, was overwhelming. The
cumulative error doctrine does not apply.
       {¶60} In sum, based upon the foregoing, Spring's sole assignment of error is
meritless. Accordingly, the judgment of the trial court is affirmed.
                        - 15 -



Waite, J., concurs.

Robb, P. J., concurs.
