[Cite as State v. Anderson, 2012-Ohio-1491.]




                                       COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



THE STATE OF OHIO

                         Plaintiff-Appellee

-vs-


RONALD ANDERSON

                    Defendant-Appellant

:      JUDGES:
:      Patricia A. Delaney, P.J.
:      Sheila G. Farmer, J.
:      Julie A. Edwards, J.
:
:      Case No. 2011CA0006
:
:
:      OPINION




CHARACTER OF PROCEEDING:                           Criminal Appeal from Morrow County
                                                   Court of Common Pleas Case No.
                                                   2011-CR-0007

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            March 29, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant
CHARLES HOWLAND                                     WILLIAM T. CRAMER
Morrow County Prosecutor                            470 Olde Washington Road
                                                    Suite 200
BY: JOCELYN STEFANCIN                               Westerville, Ohio 43082
Assistant Prosecutor
60 East High Street
Mt. Gilead, Ohio 43338



Edwards, J.

       {¶1}   Defendant-appellant, Ronald Anderson, appeals his conviction and

sentence from the Morrow County Court of Common Pleas on one count of having

weapons while under disability. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On January 31, 2011, the Morrow County Grand Jury indicted appellant

on one count of having weapons while under disability in violation of R.C. 2923.13, a

felony of the third degree, one count of domestic violence in violation of R.C. 2919.25, a

misdemeanor of the first degree, and one count of assault in violation of R.C.

2903.13(A), a misdemeanor of the first degree.        The basis for the weapons under

disability charge was a prior 1990 murder conviction for which appellant served 18

years in prison. On February 2, 2011, appellant entered a plea of not guilty to the

charges.

       {¶3}   Subsequently, a jury trial commenced on March 14, 2011. The following

testimony was adduced at trial.

       {¶4}   Tina Stolpa is appellant’s younger half-sister. At the time of the trial, she

was in the process of getting a divorce. In 2010, Kara Kassler, appellant’s girlfriend,

moved in with Stolpa and, approximately a month or so later, appellant also moved into
Stolpa’s house. Stolpa testified that she owned a gun that was kept in the garage in a

case and that the bullets were kept in their own bag.

       {¶5}   Stolpa testified that in December of 2010, appellant’s truck was involved in

an accident. At the time of the accident, Kassler was driving and Stolpa’s oldest child

was in the truck. According to Stolpa, there was tension between appellant and Kassler

after the accident.

       {¶6}   Stolpa testified that on New Year’s Eve, appellant, Kassler, Stolpa’s

mother, Deborah Myer and Stolpa’s children were all at Stolpa’s house. She further

testified that she was in and out of her garage with Kassler, Myer and appellant drinking

beer, smoking and listening to music. While they were in the garage, Stolpa told Kassler

that, by the same time next year, she would be divorced and would be able to go out

with friends to a bar and shoot pool. According to Stolpa, after Kassler indicated that

she could go with Stolpa, appellant said that he did not want Kassler going out to a bar

and the two got into an argument. Stolpa then went back into the house. When

appellant came into the house shortly thereafter, his tongue was bleeding. After

appellant fell asleep on the couch, Kassler told Stolpa that she should wake appellant

up because appellant wanted to shoot Stolpa’s gun off at midnight. According to Stolpa,

the gun was in appellant’s pants underneath his shirt.

       {¶7}   After appellant woke up, he put the gun back in the garage after Stolpa

told him that she did not want an accident to happen and her neighbors did not like loud

noises. Once Stolpa’s children went to bed, all of the adults had a shot of alcohol and

went out to the garage to smoke. After returning to the house, appellant and Kassler got

into an argument over whether or not to pull out the sofa bed. According to Stolpa,
Kassler was swearing and yelling at appellant and told him that she would not lay with

him. Stolpa testified that, in response, appellant told Kassler that she was drunk and did

not know what she was saying. They all then went to sleep.

       {¶8}   At trial, Stolpa testified that the next day, New Year’s Day, Kassler

announced that she was going to walk into town, which was three miles away, to get

some cigarettes and to clear her head. After Kassler returned, she sat on the couch

opposite from appellant and the two hardly spoke to each other. According to Stolpa, at

approximately 8:00 p.m., Kassler, who had been smoking in the garage, came into the

house and told appellant that they were through. Stolpa testified that appellant agreed

and that after Kassler whispered something to appellant, appellant smacked Kassler in

the face and the two began yelling at each other. After Kassler indicated that she was

going to leave, appellant told her that she was not going anywhere and the two

continued arguing loudly until Stolpa told them to leave. Appellant and Kassler then left

Stolpa’s house.

       {¶9}   Stolpa testified that she was in the garage smoking with her mother when

appellant came into the garage and went to get the gun, which was stored in a case in

her husband’s Firebird. When Stolpa told appellant that the gun was hers and that he

could not take it, appellant threatened to knock her out. Appellant then took the gun out

of the car into the house, sat down at the kitchen table and started putting the bullets in

the clips. The following is an excerpt from Stolpa’s testimony at trial:

       {¶10} “Q. Did he load one clip or both clips?

       {¶11} “A. He loaded both of them. So he sat down to put his boots on and he

said, well, he stood up after he got done tying his boots, put his boots on. He stood up
and stood by my front door. He turned around and looked at me and said, well - -

excuse me. He said, ‘Well, the next time that you see Kara or me we are both going to

be dead, because when I find her it is going to be over, because she is going to be

dead. I’m going to kill her. I’m going to kill myself. So the next time you see us just

make sure you bring a rose to her grave and you can piss on my grave for all I care

because I’m done. I can’t take this. I can’t take it out here no more. This is - -

everything is just too much.’ And she is just, ‘I can’t live without her and I’m not going to

let her live without me.’ And all this crazy stuff.

       {¶12} “And I’m - - I’m still trying to talk him down at the same time. I’m like,

‘dude, she is not worth it. Just let her go.’ I’m like, ‘You don’t’ have to do this.’ And he

told me - - at the kitchen table I was trying to take the gun from him. I mean I put - - I

put one hand on, I put my one hand on his arm. I’m like, ‘You don’t need to do this.

Just let me have my gun back.’ He is like, ‘At this point now, sis, if you get in my way

I’m going to kill you, too.’ I mean just the look, the look in his eyes there is - - it is like he

was not even him any more (sic). It was like my brother was gone. There was so much

anger and hate and rage in there. I don’t even know.” Transcript at 250-251.

       {¶13} When Stolpa told appellant that the neighbors might see the gun and call

the police, appellant told her that he would shoot them also. After appellant left, Stolpa

locked the door and sat down on the couch with her mother.

       {¶14} Approximately fifteen or twenty minutes after appellant left, Stolpa and

Myer heard a knock on the door and found Kassler outside shaking and crying. Kassler

told Stolpa that appellant had passed her on the road and that she had heard and seen

a gun. Stolpa then dialed 9-1-1.
      {¶15} Stolpa testified that before calling the police, she called Bruce Campbell

after appellant left her house with the gun. She testified that she believed that Campbell,

who was appellant’s best friend, could talk some sense into appellant. Stolpa further

testified that after appellant was in police custody, she found the gun and bullets in a

sack on her front porch on January 2, 2011. She turned the gun over to the Sheriff’s

Department. Stolpa denied receiving a telephone call from Campbell, on January 2,

2011 or that she had called Campbell after appellant was taken into custody. She

further testified that she did not talk to Campbell the day appellant was arrested, or the

next day or the day after that about the gun. She testified that the only communication

that she had with Campbell was the night on which the incident occurred.

      {¶16} During trial, Stolpa indicated that appellant knew where the gun was kept

in the garage because appellant was friends with her husband and had seen him put

away the gun. She testified that appellant had used the gun for target shooting.

      {¶17} On cross-examination, Stolpa testified that she owned a van that had

been broken for over a year. She testified that it would cost between $300.00 and

$400.00 to fix. When asked, Stolpa denied that she ever discussed selling the gun to

Bruce Campbell or having him sell the same in order to raise money to fix the van. She

testified that Campbell was an acquaintance of hers and that appellant had given her

Campbell’s telephone number in case something happened when she was driving down

to Tennessee for Christmas. Stolpa also testified that Campbell came to her house

after appellant was arrested to pick-up appellant’s clothes.

       {¶18} Stolpa further testified that she did not visit Campbell’s house on New

Year’s Eve with appellant and Kassler and that appellant and Kassler had gone to
Campbell’s house the day before New Year’s Eve. Stolpa also denied that, after New

Year’s Day, she sent a text message to Kassler saying that she would not let her

brother go down for this. She testified that she spoke with Kassler and told her that she

did not want to see appellant go down and that he needed help with rage, anger and

self-control.

       {¶19} At trial, Bruce Campbell testified that shortly before New Year’s, appellant

and Kassler came down to see him. He testified that on January 1, 2011 in the evening,

appellant called him and asked him to come pick him up because he had had a fight

with his girlfriend. Campbell said no. Later at approximately midnight appellant showed

up at Campbell’s door after riding his bike to Campbell’s house. Campbell testified that

appellant was not carrying anything. Appellant spent the night at Campbell’s house and

was arrested there the next morning. Campbell testified that when he spoke with Stolpa

after appellant’s arrest, she asked him about the gun and Campbell indicated that there

was no gun. However, when Campbell went out later, he noticed that appellant’s bike

was leaning up against Campbell’s privacy fence just outside his garage door.

Campbell testified that when he brought the bike into the garage, he observed the gun

six inches under the door. There was a three or four inch gap between the door and the

ground. The ammunition was next to the gun and there was a magazine in the gun. A

second magazine was in a plastic bag with other ammunition. Campbell testified that he

then unloaded the gun and called Stolpa who said that the gun was hers. He then

returned the gun to Stolpa in a paper bag along with two empty magazines and a bag of

bullets.
        {¶20} Campbell testified that on approximately February 7, 2011, he received an

unsigned letter. He testified that he recognized the handwriting on the letter and that it

was appellant’s handwriting. Stolpa also indentified the handwriting as appellant’s.

According to Campbell, the letter, which was admitted as Exhibit 14 at trial, asked

Campbell not to say anything that was going to damage appellant’s case.1 Campbell

further testified that he received a phone call from appellant after he was arrested. The

call was recorded and was marked as Exhibit 16 and was played for the jury. During

the conversation, appellant made several comments about selling the gun or that Stolpa

had sold the gun. Campbell denied knowing anything about that. Appellant also asked

Campbell not to turn on him.

        {¶21} On cross-examination, Campbell denied that Stolpa called him at 10:00 or

11:00 on New Year’s Day and asked him to come get appellant and to talk him out of

whatever he was going to do. He further testified that his garage/barn was locked the

night of January 1, 2011, because he was security conscious due to incidents of

vandalism. Campbell testified that he had video cameras outside his house, but that

they were not running on the night in question. Campbell also testified that he collected

guns, that he had approximately 45 guns, and that he occasionally participated in the

sale or trading of guns. He testified that appellant did not have a gun on him when

appellant showed up at his door. The following testimony was adduced when he was

questioned about the telephone conversation:

        {¶22} “Q. You heard the phone conversation. When you said I ain’t going down,

were those your words, sir?


1
 Appellant, in such letter, indicated that things were not going “to [sic] good for me at the moment but
depending on you things could get a lot better for me.”
       {¶23} “A. Yes, they were.

       {¶24} “Q. What did you mean by that, sir?

       {¶25} “A. Well, I figured since I didn’t call the police when I found the gun and I

took it to Tina’s house, that I put myself in some sort of jeopardy.

       {¶26} “Q. When Mr. Anderson asked you, there was a question in there where

he said something about Tina selling the gun. You answered, no, I don’t believe she

sold it. What did you mean by that, sir?

       {¶27} “A. Well, when I called her after they arrested him, she said, ‘Where is my

gun?’ So if she had sold it - -“ Transcript at 424.

       {¶28} On cross-examination, Campbell testified that Stolpa, appellant and

Kassler all came to his house on New Year’s Eve and that he gave a partial bottle of

Wild Turkey to appellant to celebrate the new year. He denied that Stolpa asked him to

sell the gun so that she could raise money to fix her van. He testified that when the

officers who arrested appellant asked him where the gun was, he indicated that there

was no gun.

       {¶29} On redirect, Campbell testified that appellant and Kassler had spent the

night at his house not very long before the incident in this case. He was unable to recall

the specific date. Campbell also testified that he did not call the police once he found

the gun because he suspected that it was placed where it was by appellant.

       {¶30} Kassler was declared to be a court’s witness and was cross-examined by

both parties. She testified that she was residing in Cleveland with appellant’s mother

and stepfather as of the time of trial. Kassler testified that she had known appellant
since she was 14 and that they had a daughter together. She testified that she moved in

with Stolpa, Stolpa’s husband and their three children in November of 2010.

       {¶31} According to Kassler, on December 30, 2010, Stolpa dropped appellant

and Kassler off at Bruce Campbell’s house, but did not spend the night there with them.

She testified that they went back to Stolpa’s the next day and that when Stolpa talked

about going to a bar and playing pool with Kassler, appellant was not happy. Kassler

testified that she accidentally bit appellant’s tongue while they were kissing, causing it to

bleed. At trial, Kassler further testified that she and appellant had a fight and that there

was tension between them. According to Kassler, at approximately 8:00 p.m. on

December 31, 2010, appellant said that he was done with her and hit her on the side of

her face with his hand. She then told appellant that she was going to leave. The

following is an excerpt from her testimony at trial:

       {¶32} “Q. And what was the defendant’s response to that?

       {¶33} “A. I don’t think he really cared. He was kind of, you know, he was upset.

       {¶34} “Q. Do you recall the defendant saying anything to you about you weren’t

going anywhere until you go to Court for wrecking his truck?

       {¶35} “A. We were arguing and he made the statement he was afraid I wasn’t

going to go to Court, that I was going to take off, which I wouldn’t do that.

       {¶36} “Q. Do you recall arguing about the truck? Did the defendant ever say to

you, that about this business about Court and that you would be lucky if the defendant

didn’t kill you before then?

       {¶37} “A. Could you please repeat that question, sorry?
         {¶38} “Q. The defendant said, you are not going anywhere until after you go to

Court for wrecking this truck and that you would be lucky if the defendant didn’t kill you

before then. Do you remember saying anything to that effect?

         {¶39} “A. I think I wrote that out in my statement.

         {¶40} “Q. Is that in your statement?

         {¶41} “A. I’m pretty certain.

         {¶42} “A. So that’s what you wrote out in your statement; is that correct?

         {¶43} “A. I’m pretty certain that is.” Transcript at 473.

         {¶44} Kassler testified that she did not recall appellant threatening to kill her if

she left, although such statement was in her written statement to police. She testified

that she was pretty upset when she wrote out her statement to police.

         {¶45} Although, in her written statement to police, Kassler had indicated that

Stolpa would not drop her off anywhere because she was afraid, Kassler testified that

such statement was inaccurate and indicated that Stolpa could not take her anywhere

because the car belonged to Deborah Myers and Myers told Stolpa that she could not

use the car. When questioned whether she recalled telling Stolpa’s mother that

appellant was going to kill her if she did not get out, Kassler testified that while she

wrote such statement in her written statement, she exaggerated because she was

upset.

         {¶46} Kassler, in her written statement to police, stated that appellant threw her

on the ground, grabbed her by the hair and told her to get the “FF in the house.”

Transcript at 481. She also stated that when they went back into the house, appellant
hit her again. However, at trial, she testified that appellant did not hit her again, but

rather that appellant had raised his hands to protect himself because she was angry.

      {¶47} Testimony was adduced that after Stolpa told appellant and Kassler to

leave, Kassler went about three houses away and hid in the trees behind a house for

approximately 15 minutes. In her statement to police, she stated that after she started

walking toward the road, she heard appellant talking on his phone and heard a clicking

sound which she thought was a gun. She testified that she never saw a gun, but that

after going back to Stolpa’s house and hearing what had happened, she thought that

the clicking sound must have come from a gun.

      {¶48} Kassler admitted that, in her written statement to police, she stated that

she wanted Stolpa to call the police so that appellant would not come back and kill her.

She also admitted writing that appellant was very dangerous and had threatened to kill

her the whole evening.

      {¶49} According to Kassler, she witnessed Bruce Campbell come to Stolpa’s

house on January 2, 2011 and hand the gun over to Stolpa. She further testified that

after moving out of Stolpa’s house on February 3rd or 4th of 2011, she received a text

message from Stolpa.

      {¶50} Deborah Myers, Stolpa’s mother, testified that appellant was her stepson

at one time. She testified that she came to visit her daughter in December of 2010.

According to Myers, Stolpa took appellant and Kassler to Bruce Campbell’s on

December 30, 2010 and dropped them off there. After the two returned on New Year’s

Eve, all four adults had shots of Wild Turkey and were going in and out of Stolpa’s

garage smoking. When asked if, at some point in time on the evening of December 31,
2010, she saw a gun, Myers testified that she saw a gun down appellant’s pants while

appellant was sitting on the sofa. Appellant appeared to be asleep. After Stolpa woke

appellant up, he went into the garage for approximately twenty minutes to half an hour.

      {¶51} Myers testified that, on January 1, 2011, appellant and Kassler were not

talking to one another, but that later in the evening, she heard their voices raised. She

testified that her 13 year old granddaughter told her that she had seen appellant hit

Kassler. Later, when Myers was out in the garage with Stolpa, appellant came into the

garage and took a black bag out of a Trans Am parked in the garage. Myers testified

that appellant then went into the house and that she observed him loading a gun at the

kitchen table. According to Myers, appellant said that he was going to find Kassler and

shoot her and then himself. She testified that he also said that he was not going to go

back to prison.

      {¶52} At the conclusion of the evidence and the end of deliberations, the jury, on

March 17, 2011, found appellant not guilty of domestic violence, but guilty of having a

weapon while under disability.     The charge of assault had been dismissed upon

appellee’s motion due to lack of evidence. Pursuant to a Judgment Entry filed on May 5,

2011, appellant was sentenced to five years in prison.

      {¶53} Appellant now raises the following assignments of error on appeal:

      {¶54} “I. APPELLANT WAS DEPRIVED OF HIS CONFRONTATION RIGHTS

UNDER THE SIXTH AMENDMENT (AS APPLIED THROUGH THE FOURTEENTH

AMENDMENT) AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN

THE TRIAL COURT REFUSED TO ALLOW APPELLANT TO PRESENT A DEFENSE
SHOWING THAT THE PROSECUTION’S PRIMARY WITNESS WAS BIASED,

PREJUDICED, AND HAD A MOTIVE TO LIE.

      {¶55} “II. APPELLANT WAS DEPRIVED OF HIS CONFRONTATION RIGHTS

UNDER THE SIXTH AMENDMENT (AS APPLIED THROUGH THE FOURTEENTH

AMENDMENT) AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN

THE TRIAL COURT REFUSED TO ALLOW APPELLANT TO PRESENT EVIDENCE

OF INCONSISTENT STATEMENTS BY THE PROSECUTION’S MAIN WITNESSES IN

REGARD TO A MATERIAL ISSUE GOING TO BIAS.

      {¶56} “III. APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL DUE

PROCESS RIGHT TO A FAIR TRIAL WHEN THE PROSECUTION WAS ABLE TO

ELICIT PREJUDICIAL INFORMATION ABOUT APPELLANT’S PRIOR MURDER

CONVICTION IN VIOLATION OF EVID.R. 403(B).

      {¶57} “IV.   APPELLANT      WAS     DENIED     HIS   STATE     AND    FEDERAL

CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY

COUNSEL’S FAILURE TO PROPERLY OBJECT TO INADMISSIBLE EVIDENCE.

      {¶58} “V.    APPELLANT      WAS     DENIED    HIS    STATE     AND    FEDERAL

CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY THE

CUMULATIVE EFFECT OF THESE ERRORS.”

                                              I

      {¶59} Appellant, in his first assignment of error, argues that he was deprived of

his confrontation rights under the Sixth Amendment and Section 10, Article 1 of the

Ohio Constitution when he was not permitted to show that Tina Stolpa, his half-sister,

was biased against him and had a motive to lie.
       {¶60} Trial courts are granted broad discretion with respect to the admission or

exclusion of evidence at trial. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343,

348, (1987). Thus, an appellate court will not reverse a trial court's ruling absent an

abuse of discretion. State v. Myers, 97 Ohio St.3d 335, 348, 2002-Ohio-6658, 780

N.E.2d 186, ¶ 75. “The term ‘abuse of discretion’ connotes more than an error of law or

judgment;    it   implies   that   the   court's   attitude   is   unreasonable,   arbitrary   or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140,

(1983). Absent an abuse of discretion resulting in material prejudice to the defendant, a

reviewing court should be reluctant to interfere with a trial court's decision in this regard.

State v. Hymore, 9 Ohio St.2d 122, 224 N.E.2d 126, (1967).

       {¶61} Cross-examination is the primary means by which the credibility of a

witness is tested. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347,

(1974). Exposing a witness' motivation in testifying is a proper and important function of

the right of cross-examination. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400,

1413, 3 L.Ed.2d 1377 (1959).

       {¶62} Evid. R. 403(A) provides as follows:

       {¶63} “[a]lthough relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or

of misleading the jury.”

       {¶64} In the case sub judice, appellant sought to cross-examine Tina Stolpa to

show that she was biased against him because he was planning to testify at her divorce

proceedings that she had falsely accused her husband of domestic violence against

their daughter. Appellant sought to introduce such evidence to show that Stolpa was
biased against him and had a motivation to lie about appellant being in possession of

the gun. The trial court refused to let appellant cross-examine Stolpa about the divorce

proceedings finding that the same was not relevant.

       {¶65} At trial, appellant proffered Stolpa’s testimony.      We note that Stolpa,

during voir dire outside the presence of the jury, testified that she was unaware that

appellant had been subpoenaed to testify against her in court in the domestic matter.

Thus, appellant failed to show that Stolpa was biased and was trying to get back at

appellant by testifying against him. We also concur with appellee that whether or not

domestic violence occurred within Stolpa’s home was not relevant to the issues in this

case. Finally, we find that, assuming, arguendo, that the trial court erred in not admitting

the proffered evidence, such error was harmless based on the evidence. Stolpa, Bruce

Campbell and Deborah Myers all connected appellant to the gun. Moreover, Kassler, in

her written statement to police, stated that she heard clicking sounds and knew that

appellant had a gun. As is stated above. Campbell testified that on approximately

February 7, 2011, he received an unsigned letter with appellant’s handwriting. The

letter, which was marked as an Exhibit, asked Campbell not to say anything that was

going to damage appellant’s case. Finally, during trial, a recorded telephone call from

the jail from appellant to Campbell was admitted.       During the call, appellant asked

Campbell about the gun and sighed when told that Campbell had returned the same to

Stolpa. Appellant, during the call, told Campbell not to let them talk him into testifying

and asked Campbell not to put the gun in appellant’s hands. Appellate also asked

Campbell not to turn on him and Campbell replied that he would do what he could, but

that he wans’t going down.
       {¶66} Appellant’s first assignment of error is, therefore, overruled.

                                             II

       {¶67} Appellant, in his second assignment of error, argues that he was deprived

of his right to confrontation when the trial court limited his right to cross-examine Kassler

about a conversation she allegedly overheard between Stolpa and Bruce Campbell.

       {¶68} During trial, Kassler was asked whether or not she had witnessed any

conversation between Stolpa and Bruce Campbell involving a gun. Both Stolpa and

Campbell denied having any discussions about selling the gun. After she testified that

she heard Stolpa talk about selling her gun after appellant was arrested, appellee

objected on the basis of hearsay and the objection was sustained. The trial court

ordered the jury to disregard such statement. Kassler was later asked whether she

witnessed Stolpa and Campbell discussing the gun on January 2, 2011. After appellee

objected on the basis of hearsay, the court sustained the objection.

       {¶69} Kassler then testified that, on January 2, 2011, and then about a week

after that, she witnessed a conversation between Campbell and Stolpa about a gun.

The conversation on January 2, 2011, occurred while she was at Campbell’s house.

She testified that after she heard the conversation, she “[a]bout had a stroke” and

moved out of Stolpa’s house. Transcript at 512.

       {¶70} Subsequently, the following discussion took place on the record:

       {¶71} “MR. DESMOND: Did I say that Kara Kassler would testify that she heard

Tina Stolpa and Bruce Campbell talking about the sale of this gun? Did I say that?

       {¶72} “MS. STEFANCIN: I thought she testified to that.

       {¶73} “THE COURT: She started to.
       {¶74} “MR. DESMOND: Then you stopped her.

       {¶75} “THE COURT: Yeah.

       {¶76} “MS. STEFANCIN: We had a bunch of side bars up here yesterday. I’m

trying to remember.

       {¶77} “MR. DESMOND: Let me try to clear it up. She would have testified, had

she been allowed to, that she witnessed - -

       {¶78} “THE COURT: It was a relevancy issue because it took - - the

conversation took place from what I understand substantially later.

       {¶79} “MS. STEFANCIN: Much later.

       {¶80} “THE COURT: After the incident.

       {¶81} “MS. STEFANCIN: She said it was after a week or so.

       {¶82} “THE COURT: After the 1st.

       {¶83} “MS. STEFANCIN: Yeah, she said she heard the conversation a week or

so after and that’s why you weren’t allowed to get into the details.

       {¶84} “MR. DESMOND: Did I say that she heard them talking about the sale of

this gun?

       {¶85} “THE COURT: Yes.

       {¶86} “MR. DESMOND: Okay. Then I don’t have any proffer.

       {¶87} “THE COURT: Right.” Transcript at 635-636.

       {¶88} Appellant now maintains that he was denied his right to confrontation

when the trial court refused to permit him to question Kassler about the specific details

of the conversation that she overheard. Appellant notes that both Campbell and Stolpa
denied that they discussed selling the gun and argues that the issue of how and when

Campbell came to possess the gun was germane to the case.

       {¶89} We note that such conversation allegedly occurred approximately a week

after the incident in this case. There was no proffer as to what Kassler’s testimony

would have been had appellant been permitted to cross-examine Kassler in greater

detail about the conversation. Furthermore, assuming, arguendo, that the trial court

should have allowed Kassler to testify about the specific details of the conversation, we

find such error harmless based on the overwhelming evidence of appellant’s guilt.

       {¶90} Appellant’s second assignment of error is, therefore, overruled.

                                                 III

       {¶91} Appellant, in his third assignment of error, argues that he was denied of

his right to a fair trial when appellee was able to elicit information about appellant’s prior

murder conviction. Appellant’s murder conviction was the basis for the weapon under

disability charge.

       {¶92} In the case sub judice, appellant offered to stipulate to having a prior

offense of violence, but appellee indicated that it had a right to refuse such stipulation

because the prior conviction was an element of the offense of having a weapon while

under disability. Appellee sought to prove appellant’s prior conviction through testimony

about the nature of appellant’s prior conviction and a certified copy of the record of

appellant’s prior murder conviction. Appellee further argued that appellant’s criminal

history was relevant because it revealed why the witnesses in this case were afraid of

him and that, because of appellant’s prior murder conviction, the victims took appellant’s

threats seriously.
          {¶93} The trial court found that the probative value of appellant’s murder

conviction was outweighed by the prejudicial value and advised the parties that the prior

conviction could not be referred to as a murder conviction.          The trial court further

advised the parties that it was not prohibiting appellee from delving into the details of

the murder conviction “if it is necessary, under 404(B) for the jury to understand what

was going on in the minds of those folks back at that time.” Transcript at 184. The trial

court went on to indicate that if appellee felt that it needed to get into the details of the

murder conviction at trial, it could request admission under Evid.R. 404(B) and the

court would make a ruling. Although the trial court ruled that appellee could not talk

about murder during opening statements, when asked by appellee, the trial court stated

that appellee could indicate that the act of violence occurred in 1990. Appellant did not

object.

          {¶94} Appellant now maintains that “[d]espite the trial court’s ruling, and without

first requesting admission under Evid.R. 404(B), the prosecution, managed to

emphasize the severity of [appellant’s] prior conviction on multiple occasions.” Appellant

notes that, during opening statements, the prosecution stated that the offense of

violence occurred in 1990 and that appellant had spent 18 years in prison for the prior

offense before being paroled. Appellant further notes that, during two other occasions

during trial, the prosecution reminded the jury that appellant had spent 18 years in

prison.

          {¶95} While appellant, in his assignment of error, argues that he was denied his

right to a fair trial when the prosecution was able to elicit prejudicial information about

his prior murder conviction, we note that the prior conviction was never referred to
during trial as a murder conviction. We further note that appellant did not object when

the trial court ruled that the prosecution could indicate that the act of violence occurred

in 1990, so a plain error analysis applies. In order to prevail under a plain error analysis,

appellant bears the burden of demonstrating that the outcome of the trial clearly would

have been different but for the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804,

(1978). Notice of plain error “is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Id. ¶ three of the

syllabus.

       {¶96} As is discussed above, there was overwhelming evidence of appellant’s

guilt. Because there was overwhelming evidence, any reference to appellant’s prior 18

year prison term did not violate appellant’s right to a fair trial.

       {¶97} Appellant’s third assignment of error is, therefore, overruled.

                                                   IV

       {¶98} Appellant, in his fourth assignment of error, contends that he was denied

the effective assistance of trial counsel due to counsel’s failure to object when the

prosecution informed the jury that appellant had spent 18 years in prison for his prior

conviction.

       {¶99} To show ineffective assistance of counsel, appellant must satisfy a two-

prong test. Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052 (1984). First,

he must show that his trial counsel engaged in a substantial violation of any essential

duty to his client. State v. Bradley, 42 Ohio St.3d 136, 141, 538 N.E.2d 373 (1989),

quoting State v. Lytle, 48 Ohio St.2d 391, 396, 358 N.E.2d 623 (1976). Second, he must

show that his trial counsel's ineffectiveness resulted in prejudice. Bradley, at 141–142,
quoting Lytle, at 396–397. “Prejudice exists where there is a reasonable probability that

the trial result would have been different but for the alleged deficiencies of counsel.”

Bradley, ¶ three of the syllabus.

       {¶100} Having overruled appellant’s third assignment of error, we find that

defense counsel's performance was not deficient.

       {¶101} Appellant’s fourth assignment of error is, therefore, overruled.
                                             V

       {¶102} In his fifth assignment of error, appellant argues that, in light of the

foregoing assignments of error, the cumulative effect of those errors denied him due

process. Because we find no error with respect to assignments I through IV, we find no

cumulative error.

       {¶103} Appellant’s fifth assignment of error is, therefore, overruled.

       {¶104} Accordingly, the judgment of the Morrow County Court of Common Pleas

is affirmed.




By: Edwards, J.

Delaney, P.J. and

Farmer, J. concur

                                                     ______________________________



                                                     ______________________________



                                                     ______________________________

                                                                  JUDGES

JAE/d0119


               IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT
THE STATE OF OHIO                           :
                                            :
                       Plaintiff-Appellee   :
                                            :
                                            :
-vs-                                        :       JUDGMENT ENTRY
                                            :
RONALD ANDERSON                             :
                                            :
                    Defendant-Appellant     :       CASE NO. 2011CA0006




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Morrow County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                _________________________________


                                                _________________________________


                                                _________________________________

                                                             JUDGES
