[Cite as State v. Adams, 2019-Ohio-4090.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                            BENNIE ADAMS,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 18 MA 0116


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 2007 CR 1261

                                         BEFORE:
                  Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                               JUDGMENT:
                                                 Affirmed.



 Atty. Paul Gains, Prosecuting Attorney, Atty. Ralph Rivera, Assistant Prosecutor,
 Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th Floor,
 Youngstown, Ohio 44503, for Plaintiff-Appellee, and

 Atty. Kimberly Rigby, Office of the Ohio Public Defender, 250 E. Broad Street, Suite
 1400, Columbus, Ohio 43215, for Defendant-Appellant..
                                                                                        –2–



                                         Dated:
                                   September 30, 2019

Donofrio, J.

        {¶1}    Defendant-appellant, Bennie Adams, appeals from a Mahoning County
Common Pleas Court judgment denying his postconviction petition.
        {¶2}    The Ohio Supreme Court set out the facts and procedural history of this
case:

                               The Burglary and the Murder

               In the autumn of 1985, Gina Tenney was a sophomore at
        Youngstown State University. She lived alone in a second-floor apartment
        in a converted house on Ohio Avenue in Youngstown.

               Adams lived in the same house in a downstairs apartment with his
        girlfriend, Adena Fedelia. The duplex had an interior common staircase.

               Around 1:00 a.m. on December 25, 1985, Tenney was getting ready
        for bed when, as she told a friend, she “heard someone at the door with the
        keys like they were trying to get in.” Tenney called her ex-boyfriend, Mark
        Passarello, who came and stayed with her until about 3:00 a.m. on
        Christmas morning.

               Shortly after Passarello left, Tenney again heard someone at her
        door. The person knocked over the chair Tenney had placed against the
        door and entered the apartment. Tenney called the police to report an
        intruder in her apartment. The responding police officers found footprints in
        the snow leading from her apartment to 275 West Dennick Avenue in
        Youngstown.

               The investigation was assigned to Detective William Blanchard of the
        Youngstown Police Department. On December 26, 1985, Blanchard met




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      with Tenney at her apartment. Looking at her apartment door, Blanchard
      saw “slight” but “noticeable” evidence of a forced entry.

             Blanchard followed up on the report of footprints by traveling to 275
      West Dennick and interviewing a resident there, Ed Tragesser. Tragesser
      claimed to know nothing about the break-in. Blanchard testified that
      Tragesser was never ruled out as the burglar but that there was no evidence
      to sustain charging him with any crime. Blanchard, however, suspected that
      Adams may have been the burglar based on what Tenney had told him.

             Tenney's friend, Penny Sergeff, also suspected that Adams was the
      burglar.

             According to Sergeff, the outside door to Tenney's building made a
      loud screeching noise when it was opened or closed. But Tenney had not
      heard the door screech the night of the burglary, which suggested to Sergeff
      that the burglar had not come from outside the apartment building. Sergeff
      shared the information about the screeching door with the police, but never
      explicitly communicated her suspicions about Adams at the time she initially
      spoke to the police.

             Less than a week after the break-in, on the morning of December 30,
      1985, Tenney's dead body was discovered in the Mahoning River. Upon
      identifying Tenney's body, homicide detectives called Blanchard into the
      investigation.

                         The Investigation and Arrest of Adams

             From the outset, Blanchard considered Adams a person of interest
      in the homicide.

             Blanchard and two homicide detectives traveled to the duplex on
      Ohio Avenue. They knocked on the exterior door for “a number of minutes”
      until Adams emerged from his apartment and admitted them into the
      common area.


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            Upstairs, the police officers found the door to Tenney's apartment
      locked. They observed no blood on the steps. Blanchard saw no new
      evidence of forced entry.

            The investigators decided to call the building's owner for the key to
      Tenney's apartment. They then knocked on Adams's apartment door for
      permission to use his telephone; Adams let them in.

            While one detective placed the call, Blanchard and Lieutenant David
      Campana talked to Adams, asking him when he had last seen Tenney,
      whether anything suspicious had been happening lately, whether anybody
      else was around who might know something, and whether he was alone.
      Adams indicated that he was alone in the apartment and told detectives that
      he did not know where Tenney might be.

            Just then, the detectives heard a loud bump, a sound like a door
      hitting a wall. Adams then said, “I never said he wasn't here” or words to
      that effect. Blanchard and Campana went into a back bedroom, where they
      found Horace Landers hiding behind a door.

            Campana recognized Landers and remembered that there was an
      outstanding misdemeanor warrant for him. Campana and Blanchard
      immediately arrested Landers and handcuffed him.

            Landers was wearing trousers, but was bare-chested. Knowing that
      they would have to take him outside into the cold, Blanchard looked around
      and saw a shirt on the bed, which he draped over Landers's shoulders. But
      Blanchard thought that he should put something else on Landers. He saw
      a jacket on the floor three or four feet away, just outside the door to the
      bedroom where they had found Landers.

            As Blanchard searched the jacket for weapons, Landers told him that
      the jacket belonged to Adams. Simultaneously, Blanchard felt a hard object
      in the pocket and pulled it out. The object was an ATM card from Dollar



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      Bank bearing the name Gina Tenney. Blanchard testified that he also found
      a folded Mahoning County welfare card in the name of Bennie Adams in the
      pocket.

             The police officers immediately arrested Adams. When they
      searched him, they found a blue tissue in his pants pocket with two cigarette
      butts wrapped up in it.

             Fedelia, whose name was on the lease, consented to a search of the
      apartment she shared with Adams. In a bathroom wastepaper basket,
      police officers found a ring of ten keys with the letter G on the keychain.
      One of the keys fit Tenney's apartment door and another key fit her
      automobile.

             In the kitchen, Blanchard found a potholder with hair and dirt on it in
      a wastebasket. Police officers later found a matching potholder atop the
      refrigerator in Tenney's apartment.

             Police officers also found an unplugged television on a bed in
      Adams's apartment. The serial number on the television matched the
      number on an empty television box later discovered in Tenney's apartment.
      A wall unit in Tenney's apartment contained an empty space for a television,
      and a cable-television line dangled in the space.

             In Tenney's apartment, Blanchard saw no broken glass, broken
      furniture, or other indication that the home had been ransacked. A plate of
      food and a beer bottle were on the kitchen table. At trial, Blanchard claimed
      a “vague recollection” of “some disarray,” but he could not recall what he
      had observed. His contemporaneous investigative notes did not mention
      disarray or overturned furniture.

             Tenney's friends told police investigators that Adams had been
      bothering Tenney for some time before her death. Sergeff and Marvin
      Robinson, another one of Tenney's friends, testified that when they visited



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      Tenney, Adams often stood in his doorway watching them or peeked out
      through the curtains. According to Robinson and Sergeff, Adams started
      calling Tenney late at night, asking her to invite him up to her apartment.
      The calls continued even after Tenney asked him to stop, and Tenney
      eventually changed her telephone number.

            Robinson also described an incident in which someone slipped a
      card in an envelope under Tenney's back door addressed “to a very sweet
      and confused young lady” and signed “love, Bennie.” Police officers found
      the envelope in Tenney's apartment but did not find the card.

            According to her friends, after the Christmas break-in Tenney's
      emotional state changed from frustration with Adams to fear of him. For the
      next few nights, she asked a friend to stay over because she was afraid to
      be alone. Sergeff testified that Tenney specifically had said that she was
      afraid of Adams, a detail Sergeff did not include in her police statement
      given shortly after Tenney's death.

            At trial, Tenney's friends described their interactions with her during
      the last two days of her life. Sergeff and Tenney spent the evening of
      December 28, 1985, watching television in Tenney's apartment. At some
      point, Passarello, Tenney's ex-boyfriend, came over, and Sergeff asked him
      to drive her home. Passarello then returned to Tenney's apartment.
      Passarello testified that Tenney did not feel secure in the apartment. He
      stayed the night, and the two had sexual relations.

            Passarello left the next day after lunch and went home to his
      apartment. Tenney left separately at the same time to meet a friend, Jeff
      Thomas, for an early afternoon movie.

            After the movie, Thomas and Tenney had dinner near the theater.
      Thomas testified that they talked about work and school, but Tenney kept
      bringing the conversation back to “the situation that was going on where
      she was living.” She told Thomas that she was very concerned about “the


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      man downstairs.” Thomas described her as “apprehensive” and “borderline
      fearful.” Thomas and Tenney parted around 4:30 or 5:00 p.m.

            Tenney's mother, Avalon Tenney, testified that her daughter had
      called her the day before she died and told her that she was afraid of
      Adams.

                              The Identification of Adams

            As part of the homicide investigation, detectives obtained Tenney's
      bank-account records from Dollar Bank. Her account records for December
      29, 1985, showed six attempted transactions on her ATM card between
      9:24 and 9:34 p.m.: three attempts to withdraw cash (all denied for
      insufficient funds), two phony attempted deposits using empty deposit
      envelopes, and an unsuccessful attempt to transfer funds between
      accounts.

            Police officers questioned other bank customers whose ATM cards
      were used at the same ATM machine around the same time as the
      attempted transactions using Tenney's card. One customer, John Allie, told
      police officers that he saw a man at the ATM on the night in question.

            On January 8, 1986, Blanchard brought John Allie and his wife,
      Sandra Allie, who had also seen the man use the ATM, to the station to
      view an in-person lineup. There were six men in the lineup, including Adams
      and Landers. John Allie did not make an identification; Sandra Allie
      identified Landers as the man she saw at the ATM.

            At trial, John Allie testified that he had not identified anyone in the
      lineup because he was not comfortable with the number of people in the
      room. He also testified, “I told my wife, don't say anything because we need
      to talk to detective Blanchard. Don't mention nothing to nobody.”

            John Allie told the jury that he later telephoned Blanchard and said
      that the man from the ATM was third from the left, which was the place


Case No. 18 MA 0116
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      where Adams had stood in the lineup. John claimed that he returned to the
      police station the next day, met with Blanchard, viewed a photo array of
      three pictures, and made an identification of Adams.

             Sandra Allie testified at trial that she purposely made a false
      identification at the lineup. She testified that on the way to the station that
      day, John had expressed concern about putting her “in harm's way.” When
      they arrived, they were taken to an office with other people present and not
      to the dark room that Sandra had been expecting. John then told her that
      “he didn't like the surroundings.” “He gave me like the signal,” Sandra
      testified. “When asked if I could identify the person who was in the ATM I
      was just terrified, went to the extreme opposite and identified a short, light-
      skinned person.”

             Like her husband, Sandra Allie testified that she spoke to police
      officers sometime after the lineup to identify “the actual person,” but said
      that the police officers did not request a statement about her
      misidentification at the first lineup or call her back to view a second lineup.

             At trial, the Allies both said that when they arrived at the bank that
      night, they saw a man in the ATM vestibule who appeared not to know how
      to use the ATM. The man's face was covered by a hood and scarf, so that
      only his forehead, eyes, and the bridge of his nose were visible.

             Sandra Allie described the man as a little taller than she is. John Allie
      agreed that the man was “about medium height.”

             At trial, Sandra Allie viewed a photograph of the six-man lineup and
      testified that person Number 3 (Adams) was the man at the ATM. John Allie
      also identified Adams.

             John Allie testified that when the man came out of the ATM vestibule,
      he stood in front of the Allies' car and waved: “He put his hands—palms on
      the hood of my car and stood back, looked at me. I looked at him. He waved.



Case No. 18 MA 0116
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      I waved.” John recognized Adams from seeing him around the
      neighborhood, even though he did not know Adams's name at the time.

             When the man started the car he was driving, John Allie heard it
      make an unusual sound. John testified that the vehicle was a Buick and
      identified it from photographs as Tenney's car. When John came to the
      police station, he correctly picked out Tenney's car from the 15 or 20 he was
      shown. An officer started the engine, and the car made the same sound that
      John had heard it make at the bank.

                      The Parole Officer's Interviews with Adams

             Adams's former parole officer, William Soccorsy, testified that he
      interviewed Adams twice after his 1985 arrest. The first time they spoke, on
      December 30, 1985, Adams denied committing any crime and denied
      having any knowledge that any crime had been committed.

             On January 2, 1986, Soccorsy asked Adams about the ATM card.
      According to Soccorsy, Adams admitted that the jacket in which the card
      was found belonged to him. Soccorsy's contemporaneous notes included a
      statement by Adams to the effect that he found the ATM card outside his
      building on the front step at around 11:30 a.m. on December 30, 1985.
      Adams told Soccorsy that he rang Tenney's doorbell to return the card but
      she was not home, so he put the card in his jacket pocket, intending to
      return it at some later time.

                                 The Autopsy of Tenney

             On December 31, 1985, an autopsy of Tenney's body was performed
      under the supervision of Mahoning County Coroner Nathan D. Belinky, M.D.

             Dr. Belinky reported finding “ligature type contusion(s)” on the neck,
      as well as “doubletrack ligature type contusions” around both wrists. There
      were additional contusions and/or abrasions on both wrists, the abdomen



Case No. 18 MA 0116
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      and chest, both breasts, and around the nose, lips, and chin. There was
      blood coming from the right nostril. Dr. Belinky concluded that the cause of
      death was “traumatic asphyxiation,” and he ruled the death a homicide.

             Dr. Belinky was deceased when the case first came to trial in 2008,
      and the state called Dr. Humphrey Germaniuk as its expert forensic
      pathologist.

             Dr. Germaniuk testified that he reviewed Dr. Belinky's autopsy report
      and the death certificate, as well as the videotape of the autopsy and
      photographs of the body and the scene. The photographs showed a bruise
      or contusion on the upper part of Tenney's right lip and abrasions or
      contusions on her chin, a faint ligature mark on Tenney's neck (which Dr.
      Germaniuk described as “superficial”), and ligature marks on her left and
      right wrists.

             Dr. Germaniuk ruled out drowning as a cause of death based on the
      absence of a “foam cone” around Tenney's mouth. He concluded that the
      cause of death was asphyxia and the manner of death was homicide. But
      Dr. Germaniuk took issue with the phrase “traumatic asphyxiation” in the
      autopsy report, which he characterized as “somewhat inexact, somewhat
      incorrect.” He would have described the cause of death as “asphyxia,”
      which simply means lack of oxygen.

             Dr. Germaniuk observed a bruise or contusion on the upper part of
      Tenney's right lip and abrasions or contusions on her chin. Although Dr.
      Germaniuk testified that the marks were consistent with smothering by
      means of a hand or object placed over her face, he also testified that the
      marks could have been caused by someone hitting her in the face. Dr.
      Germaniuk said that the evidence of smothering was not significant enough
      for him to declare that the cause of death with any reasonable medical
      certainty.




Case No. 18 MA 0116
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            Likewise, Dr. Germaniuk testified that there was evidence of ligature
      strangulation, including petechial hemorrhaging, but the ligature marks did
      not break the skin. The injuries could have been caused by strangulation or
      by being tied up, but Dr. Germaniuk could not say that ligature strangulation
      caused Tenney's death. Dr. Germaniuk testified that the cause of death was
      “probably” some combination of smothering and/or ligature strangulation.
      Ultimately, Dr. Germaniuk was unable to opine as to a cause of death that
      was more specific than asphyxia.

            The autopsy report listed the time of death as 11:15 p.m. on
      December 29, based on a test of Tenney's vitreous potassium. But
      according to Dr. Germaniuk, vitreous potassium is an inaccurate indicator
      of time of death and even in 1985, only the “uninformed” would have used
      vitreous potassium to determine time of death. Dr. Germaniuk explained
      that most other tests for time of death could not have been employed,
      because Tenney's body had been found in the frigid waters of the Mahoning
      River. And though the time of death could possibly have been determined
      based on gastric emptying, i.e., by measuring the contents of the stomach,
      in order to make a reasonable calculation one has to know the time of the
      victim's last meal. Assuming that Tenney last ate around 4:00 or 4:30 p.m.
      (when she and Thomas had dinner after the movie), Dr. Germaniuk
      estimated the time of death as between 5:00 and 10:30 p.m. But if Tenney
      had eaten later, his estimate of her time of death would have been different.

            The prosecution in questioning Dr. Germaniuk noted several times
      that police officers had found a telephone type of cord in the trunk of
      Tenney's car. The cord was one-half centimeter wide and had no weaving
      pattern. The ligature marks were also one-half centimeter wide and showed
      no weave pattern. According to Dr. Germaniuk, the cord could have been
      used to make the ligature marks on Tenney's neck and wrists, but because
      the cord was not different from thousands of other cords, he was unable to
      definitively say that the cord in the trunk was used on Tenney.



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             Dr. Germaniuk testified that the autopsy team did not examine the
      body for signs of sexual trauma or assault.

                             DNA and Fingerprint Evidence

             When Adams was arrested in late 1985, police officers obtained
      samples of his pubic hair, saliva, and blood. Samples were also obtained
      from Landers, Passarello, and Tenney, and semen was found on a vaginal
      swab taken from Tenney. The samples from Adams, Landers, and
      Passarello were compared to the samples taken from Tenney.

             The semen on the swab came from a “type B nonsecretor.”
      Passarello is a type A secretor, and Landers was a type B secretor. Thus,
      blood testing in 1986 eliminated Passarello and Landers as the semen
      source.

             Adams, however, is a type B nonsecretor. Four percent of African-
      Americans are type B nonsecretors. Thus, the blood evidence at that time
      did not definitively prove that Adams, an African-American, was the source
      of the vaginal semen, but it placed him within the population of possible
      sources.

             The potholder in Adams's apartment contained hair from an African–
      American and from a Caucasian with red hair, as well as pubic hair. Gina
      Tenney was Caucasian and had red hair. The red hair and pubic hair were
      consistent with Tenney's. The sample of African–American hair was small
      fragments and was not sufficient for comparison purposes.

             Police officers found fingerprints of evidentiary value only on the
      television that was in Adams's apartment. Investigators were able to lift nine
      usable prints from the television. Four prints matched Adams's. The other
      five could not be matched to Tenney, Adams, or Landers.

             Despite the suspicions that Adams may have been involved in
      Tenney's death, the investigation into Tenney's death went cold in 1986. In


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      January 1986, Adams was charged with one count of receiving stolen
      property based on the discovery of Tenney's ATM card in his jacket pocket.
      The grand jury, however, later declined to indict Adams on the stolen-
      property charge.

             Police officers kept Adams in custody because he was a suspect in
      a rape that had occurred in nearby Boardman, Ohio. In November 1986,
      Adams was convicted in Mahoning County Common Pleas Court of
      kidnapping, rape, and aggravated robbery in that case. He served almost
      18 years in prison, and he was released on parole on April 21, 2004.

                              The Investigation Resumes

             In 2007, more than 20 years after Tenney's death, the Ohio attorney
      general invited police departments to submit cold-case evidence to the Ohio
      Bureau of Criminal Identification and Investigation (“BCI”) laboratory for
      DNA testing. The Youngstown police department submitted evidence from
      the Tenney case.

             The police department submitted Tenney's underwear and vaginal
      swab for DNA testing and submitted a fresh DNA sample from Passarello.
      Because Tenney and Landers were both deceased, the department
      forwarded samples from 1986 that were still on file. Police officers also took
      a fresh DNA sample from Adams and submitted that to BCI.

             Based on the DNA analysis, Adams could not be excluded as the
      source of the DNA on the vaginal swab or the underwear. The odds that the
      DNA on the swab came from someone other than Adams were 1 in
      38,730,000,000,000. The odds that the DNA on the underwear came from
      someone other than Adams were 1 in 63,490,000,000,000,000,000.

             DNA analysis excluded Landers as the source of the DNA on the
      swab and the underwear.




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               Passarello's DNA was found on Tenney's underwear, but his DNA
      was not found in the vaginal-semen sample.

                                    Procedural History

               Almost three and one-half years after he was released on parole for
      the Boardman rape and related convictions, police officers arrested Adams
      and charged him with aggravated murder in connection with Tenney's 1985
      death.

               On October 11, 2007, a grand jury returned a five-count indictment
      that was later superseded by an indictment returned on October 17, 2007.
      Count One charged Adams with aggravated felony murder (R.C.
      2903.01(B)) with a single death-penalty specification, that Tenney's murder
      was committed in the course of or immediately after committing or
      attempting to commit rape, aggravated burglary, aggravated robbery, and
      kidnapping. R.C. 2929.04(A)(7). Count Two charged Adams with rape (R.C.
      2907.02(A)(2)), with a violent-sexual-predator specification under R.C.
      2941.148(A). The remaining counts of the indictment set forth charges for
      aggravated burglary (R.C. 2911.11(A)), aggravated robbery (R.C.
      2911.01(A)), and kidnapping (R.C. 2905.01(A)).

               The trial court dismissed all counts but the aggravated-murder
      charge on statute-of-limitations grounds, and the case proceeded to trial.
      After hearing the evidence, the jury returned a guilty verdict on the
      aggravated-murder charge and the accompanying capital specification.

               Following the presentation of mitigation evidence, the jury returned a
      recommendation        of   death.   The   trial   court   adopted   the   jury's
      recommendation and sentenced Adams to death.

(Footnotes omitted); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d
127, ¶ 3-73.




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        {¶3}    Appellant appealed.        This court affirmed his conviction and death
sentence. State v. Adams, 7th Dist. Mahoning No. 08 MA 246, 2011-Ohio-5361, aff'd in
part, vacated in part, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127. The Ohio
Supreme Court affirmed the conviction. Adams, 144 Ohio St.3d 429. But it vacated the
death sentence. Id. It remanded the matter to the trial court for resentencing.
        {¶4}    While appellant’s appeal was pending in the Supreme Court, he filed an
application to reopen his direct appeal in this court, which we denied. State v. Adams,
7th Dist. Mahoning No. 08 MA 246, 2012-Ohio-2719, ¶ 1. The Ohio Supreme Court
affirmed that judgment. State v. Adams, 146 Ohio St.3d 232, 2016-Ohio-3043, 54 N.E.3d
1227.
        {¶5}    On June 6, 2016, on remand from the Ohio Supreme Court, the trial court
sentenced appellant to 20 years to life.
        {¶6}    Appellant next filed a postconviction petition on June 5, 2017. He raised
ten grounds for relief.
        {¶7}    The state filed a motion for summary judgment on appellant’s petition. The
trial court granted the state’s motion. The trial court found four of appellant’s grounds for
relief were barred by the doctrine of res judicata. The court overruled the remaining six
grounds for relief and denied appellant’s petition.
        {¶8}    Appellant filed a timely notice of appeal on October 25, 2018. He now
raises three assignments of error. We will address appellant’s second assignment of
error first for ease of discussion.
        {¶9}    Appellant’s second assignment of error states:

                THE TRIAL COURT ERRED IN APPLYING THE DOCTRINE OF
        RES JUDICATA TO BAR ADAMS’ POST-CONVICTION CLAIMS.

        {¶10}   The trial court dismissed several portions of appellant’s postconviction
petition based on the doctrine of res judicata. Specifically, the trial court found appellant’s
first, second, third, and eighth grounds for relief were, or could have been, raised on direct
appeal.
        {¶11} Appellant points out that res judicata does not apply if a postconviction
petition is supported by evidence de hors the record. He asserts that he supported each


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of the four grounds for relief noted above with evidence outside of the record. Additionally,
he asserts that grounds two and three were based on the theory of ineffective assistance
of counsel, which in this case depended on matters outside of the record.
       {¶12} The doctrine of res judicata provides that any issue that was or could have
been raised on direct appeal is barred in later proceedings and is not subject to review.
State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.
       {¶13} Appellant’s first ground for relief alleged the trial court should not have
admitted the autopsy report or allowed Dr. Germaniuk to testify regarding the autopsy
report because the report and testimony violated appellant’s right to confrontation.
Appellant acknowledged that the county coroner who signed the autopsy report was
deceased. But he argued that Dr. Rona, the doctor who actually performed the autopsy,
was alive and could have testified even though he had no memory of performing the
autopsy. Appellant argued that his constitutional right to confront witnesses against him
was violated because he was denied the opportunity to cross examine Dr. Rona.
Appellant further argued that Dr. Germaniuk should not have been permitted to offer his
opinion regarding the autopsy results.      He notes that the trial court ruled that Dr.
Germaniuk could testify but was only to present the autopsy findings made in 1985 without
testifying as to his own conclusions. Yet Dr. Germaniuk offered several of his own
opinions. Appellant also argued that the trial court should not have admitted the autopsy
report since he was never given the chance to cross examine its preparer.
       {¶14} The issue surrounding the admission of the autopsy report and Dr.
Germaniuk’s testimony was contained wholly within the trial court record. Therefore,
appellant should have, and failed to, raise this issue in his direct appeal. On this ground,
the trial court properly applied the doctrine of res judicata to dismiss this portion of
appellant’s postconviction petition.
       {¶15} Moreover, the Ohio Supreme Court addressed this exact issue in affirming
our denial of appellant’s application to reopen his direct appeal.

              In his first proposition of law, Adams argues that the admission of
       the coroner's report without the testimony of the doctor who prepared the
       report violated his rights under the Confrontation Clause of the Sixth



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      Amendment and that his appellate counsel were ineffective for failing to
      raise this issue on direct appeal. * * *

             At the time this App.R. 26(B) application was briefed, the law
      surrounding the admissibility of autopsy reports prepared by nontestifying
      medical examiners was unsettled. However, we have since held that “an
      autopsy report that is neither prepared for the primary purpose of accusing
      a targeted individual nor prepared for the primary purpose of providing
      evidence in a criminal trial is nontestimonial, and its admission into evidence
      at trial under Evid.R. 803(6) as a business record does not violate a
      defendant's Sixth Amendment confrontation rights.” State v. Maxwell, 139
      Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 63.

             Adams argues that the state could have called the coroner who had
      performed the autopsy but chose not to do so. Even assuming this is true,
      the availability of the original coroner is irrelevant. Evid.R. 803, which
      contains the business-records exception to the hearsay rule, expressly
      states that evidence within the scope of the rule is admissible “even though
      the declarant is available as a witness.”

             Alternatively, Adams argues that it was a Confrontation Clause
      violation to allow Germaniuk to testify as to the contents of the report or to
      offer his own opinions. Maxwell resolved these issues as well. Because
      the report is itself admissible, Germaniuk's testimony as to its contents is
      not a Confrontation Clause problem. Maxwell, ¶ 51–52. With respect to
      Germaniuk's testifying as to his own opinions, “[s]uch testimony constituted
      [his] original observations and opinions and did not violate the Confrontation
      Clause, because he was available for cross-examination regarding them.”
      Id. at ¶ 53.

             Based on Maxwell, we hold that the failure to challenge Germaniuk's
      testimony or the autopsy report was not ineffective representation, because
      any such challenge would have failed as a matter of law.



Case No. 18 MA 0116
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Adams, 146 Ohio St.3d 232, at ¶ 3-7.
        {¶16}   Thus, the Ohio Supreme Court has already ruled on this issue.
        {¶17} Appellant’s second and third grounds for relief raised ineffective assistance
of trial counsel. Generally, a claim of ineffective assistance of trial counsel should be
raised in a direct appeal. State v. Dillard, 7th Dist. Jefferson No. 12 JE 29, 2014-Ohio-
439, ¶ 21, 27; State v. Delgado, 7th Dist. Mahoning No. 15 MA 26, 2015-Ohio-5006, ¶
18. A trial court properly dismisses a petition for postconviction relief based on res
judicata “when the defendant, represented by new counsel on direct appeal, fails to raise
therein the issue of competent trial counsel and the issue could fairly have been
determined without resort to evidence outside the record.” State v. Carosiello, 7th Dist.
Columbiana No. 18 CO 0018, 2019-Ohio-2705, ¶ 28, quoting State v. Sturgill, 12th Dist.
Clermont Nos. CA2014-01-003 and CA2014-07-049, 2014-Ohio-5082, ¶ 13.
        {¶18} Appellant’s second ground for relief alleged his trial counsel were
ineffective for failing to object to the admission of the autopsy report and failing to object
to Dr. Germaniuk’s testimony. As noted above, appellant should have raised this issue
in his direct appeal. Moreover, the Ohio Supreme Court found that the admission of the
autopsy and Dr. Germaniuk’s testimony were proper. Additionally, appellant also raised
this issue in his appeal to the Ohio Supreme Court from our decision denying his
application to reopen his appeal.       The Supreme Court held that “the report and
Germaniuk's testimony were both properly admitted. It follows, then, that the failure to
object to such evidence was not deficient performance.” Adams, 146 Ohio St.3d 232, at
¶ 21.
        {¶19} Therefore, the trial court properly found appellant’s second ground for relief
was barred by the doctrine of res judicata.
        {¶20} Appellant’s third ground for relief alleged his trial counsel were ineffective
for failing to retain a forensic pathologist to testify in his case-in-chief. Once again, this
issue relies on the trial court record and could have been raised in appellant’s direct
appeal. In fact, appellant acknowledged as much in his petition for postconviction relief
stating: “Evidence existed at the time of trial that was indicative of the need for the
defense to consult with, and present testimony from, a forensic pathologist.”
(Postconviction Petition ¶ 25). Thus, appellant admitted that at the time of his direct



Case No. 18 MA 0116
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appeal, evidence existed on the record to challenge his trial counsel’s effectiveness on
the basis of failure to retain a forensic pathologist. Moreover, appellant was represented
by new counsel on his direct appeal who could have raised this issue. Carosiello, 7th
2019-Ohio-2705 ¶ 28; Sturgill, 2014-Ohio-5082, ¶ 13. Furthermore, there is no indication
by appellant that had trial counsel retained a forensic pathologist that the outcome of his
trial would have been different. Therefore, the trial court properly found appellant’s third
ground for relief issue to be barred by the doctrine of res judicata.
       {¶21} Appellant’s eighth ground for relief alleged that he is innocent of Tenney’s
murder. He claimed no reasonable juror would convict him. In support, appellant cited
to evidence presented at trial of possible alternate suspects; pointed out flaws with the
eyewitness identification, which were apparent at trial; and argued again that his counsel
should have retained a forensic pathologist to challenge the DNA evidence linking him to
Tenney.
       {¶22} In this ground for relief, it seems appellant is actually taking issue with the
sufficiency of the evidence.      He attacked the evidence presented at trial and the
conclusions the jury drew, or failed to draw, from the evidence.         Importantly, while
appellant asserted he is actually innocent, he failed to point to any evidence, inside or
outside of the record, to prove this.
       {¶23} Sufficiency of the evidence is an issue that could have been raised in
appellant’s direct appeal. State v. Jones, 7th Dist. Mahoning No. 16 MA 0192, 2017-
Ohio-9376, ¶ 21. Therefore, the trial court properly barred appellant’s eighth ground for
relief on the basis of res judicata.
       {¶24}    Accordingly, appellant’s second assignment of error is without merit and
is overruled.
       {¶25} Appellant’s first assignment of error states:

                THE TRIAL COUR ERRED IN DISMISSING ADAMS’ POST-
       CONVICTION        PETITION       WHEN    HE    PRESENTED         SUFFICIENT
       OPERATIVE FACTS TO MERIT RELIEF OR, AT A MINIMUM, AN
       EVIDENTIARY HEARING.




Case No. 18 MA 0116
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       {¶26}    In his first assignment of error, appellant argues that he presented
sufficient evidence to support his claims of constitutional error so that the trial court should
have granted him relief or at least held a hearing on his petition.
       {¶27} An appellate court reviews a trial court's denial of a petition for
postconviction relief under an abuse of discretion standard. State v. Gondor, 112 Ohio
St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. Abuse of discretion connotes more
than an error of law; it implies the trial court acted arbitrarily, unreasonably,
unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
       {¶28} A postconviction petitioner is not automatically entitled to a hearing. State
v. Cole, 2 Ohio St.3d 112, 443 N.E .2d 169 (1982). Before granting an evidentiary hearing
on the petition, the trial court shall determine whether there are substantive grounds for
relief. R.C. 2953.21(C). The trial court's decision of whether to hold an evidentiary
hearing in postconviction matters is reviewed for abuse of discretion.                State v.
Haschenburger, 7th Dist. Mahoning No. 08-MA-223, 2009-Ohio-6527, ¶ 43.
       {¶29} In his petition, appellant raised ten grounds for relief. As discussed in
appellant’s second assignment of error, the trial court properly dismissed grounds for
relief one, two, three, and eight based on the doctrine of res judicata. Thus, in this
assignment of error we will address appellant’s remaining six grounds for relief.
       {¶30} In appellant’s fourth ground for relief, he argued juror misconduct occurred
during the guilt-phase deliberations. He asserted that during the guilt phase of his trial,
several jurors became aware of his previous rape conviction. In support, appellant
attached Juror Maloney’s affidavit.
       {¶31} Juror Maloney averred that during both the guilt phase and the penalty
phase he did not know that appellant had a prior conviction for rape. (Postconviction
petition Ex. 3, ¶ 13). Although he did know that appellant had served a prior prison term.
(Postconviction petition Ex. 3, ¶ 22). Juror Maloney averred that after the jury had
completed deliberations in the penalty phase, the jurors went to lunch and one of the
jurors (which one he was not entirely sure of), told him that appellant had previously been
in prison for rape. (Postconviction petition Ex. 3, ¶ 5). He further averred that after the




Case No. 18 MA 0116
                                                                                      – 21 –


court delivered the verdict, the jurors went out to eat again where another juror told him
that appellant had been in prison for rape. (Postconviction petition Ex. 3, ¶ 6).
       {¶32} Significantly, as the trial court pointed out in ruling on appellant’s petition,
Juror Maloney’s affidavit does not assert that any juror knew of, or communicated, the
fact that appellant had previously been convicted of rape before the jury reached its
verdict in the penalty phase. Appellant has failed to produce any evidence that any of the
jurors knew of his rape conviction before reaching their verdict.
       {¶33} And as the trial court also pointed out, defense counsel disclosed to the
jury that appellant had previously served a lengthy prison sentence. Thus, the fact that
appellant had been in prison for a substantial amount of time was not something that the
defense attempted to hide from the jury.
       {¶34} Thus, the trial court did not abuse its discretion in overruling appellant’s
fourth ground for relief.
       {¶35} In appellant’s fifth ground for relief, he argued that Juror Sutton committed
juror misconduct because she failed to disclose that she had been a victim of rape during
voir dire. He claimed this omission deprived him of the right to a fair and impartial jury.
In support, appellant again cited to Juror Maloney’s affidavit. Juror Maloney averred that
a “younger juror,” who he believed to be Juror Sutton, was crying during the sentencing
deliberations because she had been raped and she went into detail about it.
(Postconviction petition Ex. 3, ¶ 21). Appellant also alleged that Juror Sutton was not
forthcoming about a robbery she listed on her juror questionnaire.
       {¶36} The state attached Juror Sutton’s affidavit to its motion for summary
judgment. In her affidavit, Juror Sutton averred that during the sentencing-phase
deliberations she disclosed to the other jurors that she believed she had been the victim
of a date rape but that she had no personal recollection of the event because she believed
she had been given a “date rape drug.” (State Motion for Summary Judgment Ex. 1, ¶
3). She further averred that she had not considered this to be a crime because she never
reported it to the police and person was never prosecuted. (State Motion for Summary
Judgment Ex. 1, ¶ 4). For this reason, Juror Sutton believed that she answered her juror
questionnaire, stating that she had never been a victim of a crime, truthfully. (State Motion




Case No. 18 MA 0116
                                                                                         – 22 –


for Summary Judgment Ex. 1, ¶ 5). Finally, she averred that her prior experience had no
effect on her judgment in this case. (State Motion for Summary Judgment Ex. 1, ¶ 6).
       {¶37} In order for a party to obtain a new trial based on a juror’s failure to disclose
information during voir dire, the “‘party must first demonstrate that a juror failed to answer
honestly a material question on voir dire, and then further show that a correct response
would have provided a valid basis for a challenge for cause.’” State v. Williams, 6th Dist.
Lucas No. L-17-1186, 2019-Ohio-2657, ¶ 31, quoting McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).
       {¶38} A court may infer bias on the part of a juror if it finds the juror deliberately
concealed information during voir dire; however, if the concealment was unintentional,
the appellant must show that the juror was actually biased. State v. Williams, 79 Ohio
St.3d 1, 1997-Ohio-407, 679 N.E.2d 646 (1997), citing Zerka v. Green (C.A.6, 1995), 49
F.3d 1181, 1184-1186.
       {¶39} In this case, the trial court correctly concluded the Juror Sutton did not fail
to honestly answer a question. Juror Sutton stated in her affidavit that she did not
consider herself to have been a victim of a crime because she could not recollect the
event, she never reported anything to the police, and nobody was prosecuted. Thus, she
believed she honestly answered her juror questionnaire. Moreover, as the trial court
found, appellant did not present any evidence of bias or prejudice. Juror Sutton averred
that her past experience had no effect on her judgment of this case.
       {¶40}     Thus, the trial court did not abuse its discretion in overruling appellant’s
fifth ground for relief.
       {¶41}     In appellant’s sixth ground for relief, he argued he was denied effective
assistance of counsel. He argued his trial counsel failed to reasonably investigate and
present expert eyewitness identification testimony in order to discredit John and Sandra
Allie’s eyewitness of identification of him using Tenney’s ATM card on the night she was
murdered.      In support, appellant attached the affidavit of Dr. Harvey Shulman, a
psychologist with expertise in eyewitness identification. Dr. Shulman averred that he
would have informed the jury of the frailties of eyewitness identification, the fact that the
identification occurred at night, the lack of detail given by the Allies, the potential of undue
influence, and the unreliability of cross-racial identifications.



Case No. 18 MA 0116
                                                                                     – 23 –


       {¶42} To prove an allegation of ineffective assistance of counsel, the appellant
must satisfy a two-prong test. First, appellant must establish that counsel's performance
has fallen below an objective standard of reasonable representation. 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), paragraph two of the syllabus. Second,
appellant must demonstrate that he was prejudiced by counsel's performance. Id. To
show that he has been prejudiced by counsel's deficient performance, appellant must
prove that, but for counsel's errors, the result of the trial would have been different.
Bradley, at paragraph three of the syllabus.
       {¶43} Appellant bears the burden of proof on the issue of counsel's
ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id.
       {¶44} At trial, the Allies both testified that they saw appellant at an ATM machine
in front of Giant Eagle on the night Tenney was murdered. (Trial Tr. Vol. II, 291, 330).
The two were waiting in their car for the person using the ATM (appellant) to finish. (Trial
Tr. Vol. II, 293). John Allie testified that when appellant exited the ATM area, he stood in
front of the Allies’ car and waved to them. (Trial Tr. Vol. II, 294). John stated he was
familiar with appellant from “around the neighborhood.” (Trial Tr. Vol. II, 290). John also
testified that it was still light out at the time. (Trial Tr. Vol. II, 301-302).
       {¶45} The trial court overruled this ground for relief finding that it was within the
realm of trial counsel’s strategy to decide whether or not to retain an expert on eyewitness
identification.
       {¶46} Trial counsel’s decision to forego an eyewitness-identification expert is a
recognized trial strategy. State v. Keeling, 1st Dist. Hamilton No. C-010610, 2002-Ohio-
3299, ¶ 8. In State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52, the
Ohio Supreme Court commented on the defendant’s claim that his counsel were
ineffective for failing to retain an identification expert. The Court’s comments are equally
applicable here:

       Appellant was represented by two experienced trial attorneys who
       presumably were aware of the issues involving the evidence of
       identification. Appellant's counsel evidently decided not to request the


Case No. 18 MA 0116
                                                                                      – 24 –


       appointment of an eyewitness identification expert, choosing instead to rely
       on their cross-examination of the witnesses in order to impeach the
       eyewitnesses.

Id. at 390.
       {¶47}    Likewise, in this case appellant was represented by two experienced trial
attorneys.     They were presumably aware of the issues that surround eyewitness
identification and made a tactical decision not to retain an expert on the subject. The trial
court did not abuse its discretion in determining this was a matter of trial strategy and
overruling appellant’s sixth claim for relief.
       {¶48} In appellant’s seventh ground for relief, he asserted his trial counsel were
ineffective for failing to retain and present testimony from a DNA expert. In support,
appellant attached a letter from Julie Heinig, a laboratory director at DNA Diagnostic
Center. In the letter, Heinig stated that she was unable to render an opinion on the DNA
testing unless she was granted access to the entire case file.
       {¶49} The state presented evidence at trial that the odds the DNA on Tenney’s
vaginal swab came from someone other than appellant were 1 in 38,730,000,000,000.
The odds that the DNA on Tenney’s underwear came from someone other than appellant
were 1 in 63,490,000,000,000,000,000.
       {¶50} In overruling this ground for relief, the trial court pointed out that appellant
offered nothing more than speculation of an independent analysis.
       {¶51} Counsel’s failure to call an expert and instead rely on cross-examination
does not constitute ineffective assistance of counsel. State v. Krzywkowski, 8th Dist.
Cuyahoga No. 83599, 2004-Ohio-5966, ¶ 21; citing State v. Nicholas, 66 Ohio St.3d 431,
436, 613 N.E.2d 225 (1993). “In many criminal cases, trial counsel's decision not to seek
expert testimony ‘is unquestionably tactical because such an expert might uncover
evidence that further inculpates the defendant.’” Id. at ¶ 22, quoting State v. Glover,
Clermont App. No. CA2001-12-102, 2002-Ohio-6392, ¶ 95.
       {¶52} The trial court did not abuse its discretion in denying appellant’s seventh
ground for relief. As the court pointed out, appellant offered nothing to suggest that his
counsels’ performance was deficient. Instead, he only offered speculation that a review
of the DNA testing might yield different results.


Case No. 18 MA 0116
                                                                                       – 25 –


         {¶53} In appellant’s ninth ground for relief, he argued the cumulative effect of the
many instances of ineffective assistance of counsel at trial violated his rights to counsel,
a fair trial, and due process.
         {¶54} The trial court found that appellant failed to show that he was denied a fair
trial due to the cumulative effect of the alleged errors.
         {¶55} Cumulative error provides that it is a cause for reversal when the
cumulative effect of errors in a trial deprives a defendant of a fair trial even though each
error alone does not individually constitute a cause for reversal. State v. DeMarco, 31
Ohio St.3d 191, 196-197, 509 N.E.2d 1256 (1987). When this court finds no error, the
doctrine does not apply. State v. Lyons, 7th Dist. Jefferson No. 16-JE-0008, 2017-Ohio-
4385, ¶ 46.
         {¶56}   Because appellant’s alleged instances of ineffective assistance of counsel
are either meritless or are barred by the doctrine of res judicata, we cannot conclude that
the trial court abused its discretion in finding appellant’s ninth ground for relief to lack
merit.
         {¶57} Finally, in appellant’s tenth ground for relief, he argued that the cumulative
effect of all of the errors he alleged in his petition entitled him to relief.
         {¶58} The trial court found that appellant failed to demonstrate that error existed
on any of his other alleged grounds for relief and, therefore, he could not demonstrate
cumulative error.
         {¶59}   Because appellant’s alleged grounds for relief either lack merit or are
barred by res judicata, the trial court did not abuse its discretion in overruling appellant’s
tenth ground for relief.
         {¶60}   Accordingly, appellant’s second assignment of error is without merit and
is overruled.
         {¶61}   Appellant’s third assignment of error states:

                 THE TRIAL COURT ERRED WHEN IT OVERRULED ADAMS’
         MOTION FOR LEAVE TO CONDUCT DISCOVERY.




Case No. 18 MA 0116
                                                                                               – 26 –


        {¶62}     Appellant filed a motion for discovery on September 26, 2012, and
requested discovery in his grounds for relief. By dismissing appellant’s postconviction
petition, the trial court impliedly overruled his request for discovery.
        {¶63} Appellant argues the trial court should have granted him leave to conduct
discovery on his petition. He acknowledges that the current state of the law does not
mandate discovery in postconviction proceedings, but argues that it was warranted in this
case.
        {¶64} The Ohio Supreme Court has held “there is no requirement of civil
discovery in postconviction proceedings.”            State ex rel. Love v. Cuyahoga Cty.
Prosecutor's Office, 87 Ohio St.3d 158, 1999-Ohio-314, 718 N.E.2d 426. And this court
has thoroughly addressed the issue of discovery in postconviction proceedings:

                In conclusion, state collateral review itself is not a constitutional right.
        State v. Calhoun (1999), 86 Ohio St .3d 279, 281.                    As appellant
        acknowledges, it is a civil attack on a judgment. See id. As such, the
        petitioner has only those rights granted by the statute. Id.; State v. Steffen
        (1994), 70 Ohio St.3d 399, 410. The post-conviction statute does not
        provide a right to discovery. See State ex rel. Love v. Cuyahoga Cty. Pros.
        Office (1999), 87 Ohio St.3d 158, 159 (refusing to issue a writ to compel
        prosecutor to provide records for petitioner to prepare post-conviction
        petition). Rather, it places the burden on the petitioner to produce collateral
        evidence in order to warrant an evidentiary hearing. Calhoun, 86 Ohio St.2d
        at 281.

                Thus, discovery is not required before determining whether an
        evidentiary hearing is warranted by a petition. State v. Herring, 7th Dist.
        No. 03MA12, 2004-Ohio-5357, ¶ 152 (no statutory right to discovery). No
        constitutional rights are violated by this rule. See State v. Leonard, 157
        Ohio App.3d 653, 660, 2004-Ohio-3323, ¶ 10 (where the First District held
        that the failure of the statutes to provide discovery in the initial stages of a
        post-conviction proceeding does not contravene any state or federal
        constitutional right); State v. Goff (Mar. 5, 2001), 12th Dist. No. CA2-5-05-



Case No. 18 MA 0116
                                                                                      – 27 –


      041 (where the appellant raised the same assignment of error and cited the
      same federal circuit court case law that commented on the lack of traditional
      discovery in Ohio's post-conviction process). See, also, Calhoun, 86 Ohio
      St.2d at 281 (no constitutional right to post-conviction review).

State v. Drummond, 7th Dist. Mahoning No. 05 MA 197, 2006-Ohio-7078, ¶ 119-120.
      {¶65}    Thus, the trial court did not err in denying appellant’s request for
postconviction discovery.
      {¶66}    Accordingly, appellant’s third assignment of error is without merit and is
overruled.
      {¶67}    For the reasons stated above, the trial court’s judgment is hereby affirmed.




Waite, P. J., concurs.

Robb, J., concurs.




Case No. 18 MA 0116
[Cite as State v. Adams, 2019-Ohio-4090.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.


         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                       NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
