[Cite as State v. Stoermer, 2018-Ohio-4522.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2017-CA-93
                                                     :
 v.                                                  :   Trial Court Case No. 2016-CR-546
                                                     :
 CASEY STOERMER                                      :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                           Rendered on the 9th day of November, 2018.

                                                ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

KORT GATTERDAM, Atty. Reg. No. 0040434 and DAVID F. HANSON, Atty. Reg. No.
0059580, 280 Plaza, Suite 1300, 280 N. High Street, Columbus, Ohio 43215
     Attorneys for Defendant-Appellant

                                               .............

HALL, J.

        {¶ 1} Casey Stoermer appeals from his convictions for having weapons under

disability and for trafficking and possession of cocaine. A jury found Stoermer guilty of

two sets of trafficking and possession charges—one set for cocaine found on his person

when he was arrested in his residence and the other set for cocaine found in a car that
                                                                                           -2-


was searched pursuant to a search warrant. The trial court merged the trafficking and

possession charges for each set, and merged the related firearm specifications, but it did

not merge the charges resulting from the discovery of drugs in the two distinct places.

       {¶ 2} On appeal, Stoermer makes several contentions. He contends that evidence

should have been suppressed because the search that led to it was unlawful. Stoermer

also contends that the trial court should have merged all of the trafficking and possession

offenses and convicted him of only one trafficking and one possession offense. Lastly, he

contends that trial counsel was ineffective in failing to object to references to his pretrial

incarceration, in trying the weapons charge to the jury rather than the court, in eliciting

prejudicial testimony, and in failing to object to opinion testimony.

       {¶ 3} We find no merit in any of these contentions. Therefore, the judgment of the

trial court is affirmed.

                                I. Facts and Background

       {¶ 4} Around 7 a.m. on June 21, 2016, law enforcement officers with the SOFAST

task force (a unit run by the U.S. Marshals whose focus is arresting people with

outstanding felony warrants) knocked on the door of Aaron Smith’s home in Springfield,

Ohio, to arrest him on an outstanding warrant. Smith let the officers into the house. There

were two young children, two and three years old, sleeping on the living-room floor.

Officers found a handgun under one child, which Smith admitted to hiding there. They

asked Smith if there was someone in the house who could watch the children. Smith said

that their mother was at work, and he did not want to bother her. He said that “Casey”

(Stoermer) was upstairs and that Stoermer could watch them. The officers yelled upstairs

several times asking Stoermer to come down. When no one responded, Officer Tyler
                                                                                            -3-


Elliott of the Springfield Police Division and other members of the task force went upstairs

to find Stoermer. They saw him in the bedroom at the top of the stairs, standing at the

foot of the bed. On the bed they saw a Kel-Tec 9-millimeter handgun. The officers were

unaware that Stoermer had been living there. Officer Elliott had read an email about

Stoermer and drug sales, and Elliott knew that Stoermer had a prior felony conviction,

which barred him from possessing a firearm. The officers arrested Stoermer. They

searched him and found $2,700 in cash and a baggie containing six grams of cocaine.

       {¶ 5} Later that day, the officers obtained and executed a search warrant for the

residence. In the bedroom where Stoermer had been arrested, they found a digital scale

with residue on it, an empty “kilo wrapper,” and 9-millimeter ammunition in an unlocked

safe. They also found keys on the bed that opened a Honda Civic parked in the driveway.

In the car, officers found Stoermer’s state-issued identification, a pair of tennis shoes, four

black socks, and a red Nike duffel bag. In the duffel bag, they found plastic sandwich

bags, another pair of black socks, a receipt bearing Stoermer’s name, a digital scale,

cash, and over 240 grams of cocaine. Forensic tests on the socks revealed Stoermer’s

DNA on two of them.

       {¶ 6} Stoermer was indicted on one count of having weapons under a disability;

one count of trafficking and one count of possession for the cocaine found in the car; and

another trafficking count and possession count for the cocaine found on his person; each

count of trafficking and possession included a firearm specification. One trafficking charge

also had a specification that the offense occurred in the vicinity of a juvenile. Stoermer

moved to suppress the evidence obtained against him. A suppression hearing was held,

and based on the evidence presented, the trial court overruled the motion to suppress.
                                                                                           -4-


The court found that the initial encounter, the subsequent search of Stoermer’s person,

and the execution of the search warrant were all constitutional.

       {¶ 7} All of the charges were tried to a jury. Stoermer’s trial counsel stipulated that

Stoermer had a prior conviction that precluded him from possessing a firearm. Stoermer

testified in his own defense. On cross-examination, Stoermer admitted that he had three

prior drug-related felony convictions.

       {¶ 8} The jury found Stoermer guilty on all charges and specifications. As

indicated, at sentencing the trial court merged all the firearm specifications, merged the

trafficking and possession offenses for the cocaine found in the car, and merged the

trafficking and possession offenses for the cocaine found on Stoermer. The court

sentenced him to a total of 18 years in prison.

       {¶ 9} Stoermer appeals.

                                         II. Analysis

       {¶ 10} Stoermer presents three assignments of error for our review. The first

challenges the trial court’s overruling of his motion to suppress. The second challenges

the trial court’s refusal to merge all the drug offenses as allied offenses. The third

assignment of error claims that trial counsel rendered ineffective assistance.

                                  A. Motion to suppress

       {¶ 11} The first assignment of error alleges:

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

       OVERRULED MR. STOERMER’S MOTION TO SUPPRESS HIS

       UNLAWFUL ARREST BY THE POLICE, AND THE EVIDENCE

       GATHERED FOLLOWING HIS UNLAWFUL ARREST BY THE POLICE, IN
                                                                                           -5-


       VIOLATION OF MR. STOERMER’S RIGHTS UNDER THE FOURTH,

       SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

       CONSTITUTION, AND SECTIONS 10, 14, AND 16, ARTICLE I OF THE

       OHIO CONSTITUTION.

       {¶ 12} “Review of a trial court’s ruling on a motion to suppress is ‘a mixed question

of law and fact.’ We accept the trial court’s factual findings as long as they are supported

by competent, credible evidence. However, we review de novo the application of the law

to these facts.” (Citations omitted.) State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581,

74 N.E.3d 319, ¶ 100, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8.

       {¶ 13} The Fourth Amendment to the United States Constitution and Section 14,

Article 1 of the Ohio Constitution prohibit unreasonable searches. “The ultimate standard

set forth in the Fourth Amendment is reasonableness.” Cady v. Dombrowski, 413 U.S.

433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). “[T]he Fourth Amendment protects

citizens from only unreasonable government searches and seizures.” (Emphasis sic.)

State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 17, citing United

States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); see also

Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (saying that

the Fourth Amendment does not proscribe all police searches but only those that are

unreasonable). “An action is ‘reasonable’ under the Fourth Amendment, regardless of the

individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify

[the] action.’ ” (Emphasis added in Stuart.) Brigham City v. Stuart, 547 U.S. 398, 404, 126

S.Ct. 1943, 164 L.Ed.2d 650 (2006), quoting Scott v. United States, 436 U.S. 128, 138,
                                                                                               -6-


98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). “Reasonable belief is assessed from the facts and

circumstances known [to] the officers from their point of view.” (Citation omitted.) City of

Dayton v. Johnson, 2d Dist. Montgomery No. 17184, 1999 WL 55705, *3 (Feb. 5, 1999).

       {¶ 14} Law enforcement officers must obtain a warrant before conducting a search

unless the search falls within an exception to the warrant requirement. Katz v. United

States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One exception is the

“community-caretaking exception,” “which courts sometimes refer to as the ‘emergency-

aid exception’ or ‘exigent-circumstance exception.’ ” Dunn at ¶ 15. These “community

caretaking functions” are “totally divorced from the detection, investigation, or acquisition

of evidence relating to the violation of a criminal statute.” Dombrowski at 441. In other

words, if law enforcement officers happen to be in an otherwise protected area while

performing a community-caretaking function and see or discover evidence in furtherance

of that function, it is not a constitutional violation, because the intrusion is reasonable.

                                      Lawful presence

       {¶ 15} Stoermer does not dispute that if the officers were lawfully upstairs, they

could lawfully arrest him. The handgun on the bed was in plain view, and Officer Elliott

knew that Stoermer had a prior conviction that made it illegal for him to possess a firearm.

And if the officers could arrest him, then their search that turned up the baggie of cocaine

in his pocket was lawful incident to that arrest. There is no dispute that the officer’s

intrusion into the upstairs to look for “Casey” would be a “search” within the scope of the

Fourth Amendment. The key question is whether the “search” violated the Fourth

Amendment.

       {¶ 16} When a young child’s mother was arrested at her home in State v. Arbino,
                                                                                        -7-


83 Ohio Misc.2d 12, 677 N.E.2d 1273 (C.P.1996), the court found it reasonable for police

officers to walk through the home to look for someone who could care for the child.

Officers had arrested the defendant in the hallway outside her apartment, when they

noticed an eighteen-month-old child, who had opened the door himself, standing in the

open doorway of the apartment. The officers shouted into the apartment to see if there

was someone inside who could care for the child. No one responded. The child ran back

into the apartment, and an officer followed him inside and took his hand. The officers then

looked through the entire apartment to see if anyone was inside who could watch the

child. While they did not find anyone, they did find numerous cockroaches and a partially

decayed rat or mouse under a crib, as well as crack cocaine pipes. These observations

led to charges of child endangering and possession of drug paraphernalia. The defendant

moved to suppress that evidence based on an unlawful search, but the court concluded

that the officers “were under a legitimate and reasonable belief that the eighteen-month-

old child in question was in need of emergency assistance.” Id. at 15. The court noted

that “[t]he defendant expressed some concern for the child’s safety, and the officers had

received no response to their shouts into the apartment from the hallway.” Id. “The

dangers posed by leaving a child of such tender years alone in an apartment,” said the

court, “are considerable and potentially serious. The officers reasonably believed they

were confronted with a situation in which the life and safety of the child would be

compromised if the child was left alone in the apartment.” Id. “The exigent circumstances

the officers found,” the court concluded, “extended to a reasonable search of the premises

to locate supervision for the child.” Id., citing Magnuson v. Cassarella, 813 F.Supp. 1321,

1324 (N.D.Ill.1992). The court found that “[t]he scope of their search did not exceed the
                                                                                          -8-

exigency with which they were presented.” Id. at 16. “Since a capable adult might be

sleeping in another room in the apartment,” reasoned the court, “the police had to walk

through the entire apartment to determine whether there was an adult on the premises

capable of caring for the child and ensuring his safety.” Id. at 16.

       {¶ 17} We agree with the Arbino court’s conclusion and rationale and conclude that

the circumstances in this case allowed the officers to go upstairs to find “Casey.” Smith

was going to be arrested, so his children were going to be left unattended. The officers

asked Smith if there was anyone who could care for the children. He told them that

“Casey” was upstairs and that he could watch them. The officers called up the stairs for

“Casey” to come down. They called several times, but no one came down or responded.

Having been told by Smith that the person he wanted to watch two very young children

was upstairs, the officers went up to make sure that the person was there and could watch

the children. This action was entirely reasonable. Indeed, arguably, Smith gave his

implied consent to this action.

       {¶ 18} When the officers went upstairs to rouse the babysitter chosen by the

children’s father, they were performing a community-caretaking function. The trial court

expressly found that “[t]he officers went up to the second floor of the house for the sole

purpose of ascertaining whether or not there was anyone present who could watch over

the welfare of the children in the home. Had the defendant responded to the officers’ call

and come down the stairs,” said the court, “there would have been no need for the officers

to go up to the second floor.” There is little evidence that the “search” of the upstairs had

anything to do with “the detection, investigation, or acquisition of evidence relating to the

violation of a criminal statute.” Dombrowski, 413 U.S. at 441, 93 S.Ct. 2523, 37 L.Ed.2d
                                                                                         -9-


706. Therefore, the officers’ presence upstairs was reasonable and constitutional.

                                     Search of the car

       {¶ 19} After the officers arrested Stoermer, they obtained a search warrant for the

house “and surrounding curtilage.” In the room in which Stoermer was arrested, they

found car keys on the bed that opened the Honda Civic parked in the home’s driveway,

just outside. In the car, officers found over 240 grams of cocaine as well as evidence

linking the car and drugs to Stoermer. Stoermer argues that the search of the car was

unlawful because it went beyond the scope of the search warrant. He points out that

neither the warrant itself nor the supporting affidavit says anything about vehicles or car

keys found in the residence, and Stoermer contends that the Civic was not parked within

the residence’s curtilage.

       {¶ 20} “The curtilage of a house is the area immediately surrounding and

associated with that residence.” State v. Dudley, 2d Dist. Montgomery No. 21781, 2008-

Ohio-6545, ¶ 7, citing United States v. Oliver, 466 U.S. 170, 180, 104 S.Ct. 1735, 80

L.Ed.2d 214 (1984). We have held that “ ‘vehicles parked in a driveway or otherwise in

immediate proximity to the house are part of the curtilage and properly searched when

the search warrant specifies “curtilage.” ’ ” (Citation omitted.) State v. Simpson, 2d Dist.

Montgomery No. 19011, 2002 WL 441488, *2 (Mar. 22, 2002), quoting State v. Amendola,

71 Ohio Misc.2d 30, 34, 654 N.E.2d 196 (C.P.1995). Generally, “Ohio appellate courts

have recognized that such a warrant [authorizing the search of curtilage] extends to

permit search of motor vehicles located within the curtilage of the premises.” (Citations

omitted.) State v. Ballez, 6th Dist. Lucas No. L-10-1012, 2010-Ohio-4720, ¶ 13. “Indeed,

courts in most jurisdictions say that vehicles found on the curtilage of a target premises
                                                                                         -10-

may be searched. 2 Wayne R. LaFave, Search and Seizure, Section 4.10(c) (5th

Ed.2012) (citing numerous cases). ‘The assumption [made by these courts] seems to be

that a vehicle should be viewed in the same way as any other personal effects found on

the described premises.’ Id.” State v. Nelms, 2017-Ohio-1466, 81 N.E.3d 508, ¶ 10 (2d

Dist.).

          {¶ 21} We disagree with Stoermer’s contention that the Civic was not parked within

the residence’s curtilage. Plainly, it was, and this means that the search of the car was

within the scope of the warrant.

          {¶ 22} Stoermer cites several cases that he says hold that a driveway like the one

here is not part of a home’s curtilage for Fourth Amendment purposes. None of those

cases is helpful because each of the searches was warrantless.

          {¶ 23} The trial court properly overruled Stoermer’s motion to suppress. The first

assignment of error is overruled.

                               B. Merger of the drug offenses

          {¶ 24} The second assignment of error alleges:

          THE    TRIAL    COURT      ERRED      IN   ORDERING       CONSECUTIVE

          SENTENCES FOR CONVICTIONS ARISING FROM THE SAME

          CONDUCT, PURSUANT TO R.C. § 2941.25 FOR SENTENCING

          PURPOSES. SAID ERROR VIOLATED STOERMER'S RIGHTS UNDER

          THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO

          THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION 10

          OF THE OHIO CONSTITUTION.

          {¶ 25} Stoermer was found guilty on two counts of trafficking and on two counts of
                                                                                      -11-


possession: one count of each was based on the cocaine found on Stoermer when he

was arrested, and one count of each was based on the cocaine later found in the car. The

trial court merged the two offenses for the cocaine found on Stoermer’s person and

merged the two offenses for the cocaine found in the car, but the court did not merge the

offenses related to the 6 grams found on Stoermer with the 240 grams found in his car.

Stoermer argues that the trial court erred.

       {¶ 26} By statute, “[w]here the defendant’s conduct * * * results in two or more

offenses of the same or similar kind committed separately * * * the defendant may be

convicted of all of them.” R.C. 2941.25(B). The Ohio Supreme Court has explained that

“the offenses cannot merge and the defendant may be convicted and sentenced for

multiple offenses” if “the offenses were committed separately.” State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25.

       {¶ 27} Stoermer cites several cases that he says show that his offenses were

committed together and with the same animus. But as the State points out, in each of the

cases Stoermer cites, the drugs were found in the same geographic location. For

example, in one of the cited cases, State v. Bradley, 2015-Ohio-5421, 55 N.E.3d 580 (8th

Dist.), the Eighth District emphasized the importance of the location in which the drugs

were found and the fact that the offenses were based on the same drugs. The court

concluded that, under the circumstances in that case, the defendant could not be

sentenced separately for each individual package of cocaine. “Although separately

packaged,” said the court, “the cocaine found in [the defendant]’s possession was stored

together, inside one large baggie. * * * The subject drugs were being transported at the

same time and were discovered in the same location.” Id. at ¶ 43.
                                                                                          -12-


       {¶ 28} Here, the separately packaged cocaine was found in two geographically

separate locations—Stoermer’s person and the car—and at separate times as a result of

separate searches. The cocaine was not being stored together, and it was being

transported separately. Under these circumstances, we believe that the trial court

properly concluded that the two sets of offenses were committed separately.

Consequently, they were not allied offenses, and Stoermer may be convicted and

sentenced for both sets of offenses.

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

                     C. Claim for ineffective assistance of counsel

       {¶ 30} The third assignment of error alleges:

       APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF

       TRIAL COUNSEL IN VIOLATION OF APPELLANT'S RIGHTS UNDER

       THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

       STATES CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF THE

       OHIO CONSTITUTION.

       {¶ 31} Stoermer argues that his trial counsel was ineffective for failing to object to

references that he was in jail pending trial and to references that he had prior contacts

with law enforcement. He also argues that counsel was ineffective for trying the charge

of having weapons under disability to the jury instead of to the court. Lastly, Stoermer

argues that counsel was ineffective for eliciting testimony about other bad acts and for

failing to object to opinion testimony.

       {¶ 32} “To prove ineffective assistance of counsel, a petitioner must demonstrate

both deficient performance and prejudice.” Sexton v. Beaudreaux, — U.S. —, 138 S.Ct.
                                                                                          -13-

2555, 2558, 201 L.Ed.2d 986 (2018), citing Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show that counsel’s performance was

deficient, a defendant must show unreasonable conduct. See id. at 2559. “A defendant

can establish prejudice by showing that but for counsel’s errors, there exists a reasonable

probability that the result of the trial would have been different.” State v. Beasley, 2018-

Ohio-493, 108 N.E.3d 1028, ¶ 140, citing State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989), paragraph three of the syllabus. Reviewing courts “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Strickland at 689. “The benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.” Id.

at 686.

                            References to pretrial incarceration

       {¶ 33} Stoermer argues that trial counsel was ineffective for failing to object to

testimony referring to the fact that he had been jailed for the charged offenses in this case

and to testimony referring to his prior contacts with law enforcement. The following

exchange from the testimony of Detective Collins contains the challenged testimony:

       Q (by the Prosecutor). Now, also in your preparation for trial and your further

       investigation after you leave a residence, do you also pull jail calls or

       request that jail calls be pulled to listen to inmates while they’re in jail?

       A. On occasions we do, yes.

       Q. Did you do that in this particular case?

       A. Yes.
                                                                                        -14-


       Q. I’m going to hand you what’s been previously marked as State’s Exhibit

       86 and 86-A and identify those for us, please.

       A. It’s a CD-R and it’s labeled Clark County Jail Inmate Calls and the name

       of Casey Stoermer with number 77712 with the dates of 6/21/16 to 6/25/16.

       Q. Detective Collins, do you know what Casey Stoermer sounds like?

       A. I’m familiar with his voice.

       Q. * * * Now, Detective Collins, in preparation for this case you listened, as

       you previously mentioned, to jail calls, correct?

       A. I listened to some of them, yes.

       Q. And you were trying to see if there w[ere] any statements made inside

       those jail calls that may be incriminating?

       A. Correct.

       Q. Did you locate any type of evidence inside those jail calls?

       A. There was one specific call.

       * * * [The call was played.]

       A. I’ve heard it before. So it sounded like he said, the person on the phone

       said that they had a little bit of powder and something about a firearm.

       ***

       Q. And who was that person that you believed to be on that phone call?

       A. It sounded like the Defendant.

(Tr. Vol. 1, 201-203).

       {¶ 34} Stoermer argues that this testimony destroyed the presumption that he was

innocent by suggesting to the jury that he must be guilty because he had already been
                                                                                         -15-


incarcerated for the offenses. It suggested, says Stoermer, that he was a dangerous

person who needed to be locked up. He says that trial counsel should have objected to

the testimony, moved for a mistrial, or at least requested a limiting instruction.

       {¶ 35} Courts have held that verbal references to the jail status of a defendant are

improper and potentially prejudicial because they erode the presumption of innocence,

for the same reason that wearing prison or jail clothing does. E.g., State v. Watters, 8th

Dist. Cuyahoga No. 82451, 2004-Ohio-2405, ¶ 15-16 (concluding that it was improper for

the prosecutor to ask a witness if he was aware that the defendant had been taken into

custody at the time of the incident and if he knew whether the defendant had been in

custody since that time). If there has been a reference to pretrial incarceration, the

question then becomes whether the reference prejudiced the defendant. Courts have held

that isolated comments from which it could be inferred that the defendant was in jail are

not enough to show prejudice. E.g., United States v. Washington, 462 F.3d 112, 1136-

1137 (9th Cir.2006) (finding that “the impact of referring to a defendant’s incarceration is

not [as] constant as it is with prison garb”); State v. Sharp, 12th Dist. Butler No. CA2009-

09-236, 2010-Ohio-3470, ¶ 107, citing Washington (saying that one isolated comment is

not enough, “as a single reference to appellant’s custodial status does not have the same

impact as wearing prison clothing throughout a trial”); State v. Gaona, 5th Dist. Licking

No. 11 CA 61, 2012-Ohio-3622, ¶ 37 (saying that a possible inference from one isolated

comment about pretrial incarceration is not enough to show prejudice).

       {¶ 36} Here, the prosecutor did not explicitly ask, and Detective Collins did not

explicitly say, that Stoermer had been in jail. Rather, the testimony was that there were

calls made from jail, and that Stoermer was a party to one of those calls. The State says
                                                                                            -16-


that this testimony laid the foundation for a party-opponent admission—Stoermer’s prior

statement that he had “a little bit of powder.” Regardless, we conclude it would be

reasonable to infer from this testimony that Stoermer was the party in jail.

       {¶ 37} But we cannot say that trial counsel was ineffective for not objecting. Not

objecting to testimony is a reasonable trial strategy that counsel may use to avoid

attracting a jury’s attention to a matter. State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833,

¶ 68 (2d Dist.). Here, trial counsel could have withheld his objection because he thought

it best not to draw the jury’s attention to the matter of Stoermer’s incarceration, particularly

when the testimony did not clearly place him in jail. Even if counsel should have objected,

“[t]he failure to object to error, alone, is not enough to sustain a claim of ineffective

assistance of counsel.” State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988);

State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 144 (quoting

the same). Stoermer must also show that the failure to object prejudiced his defense. He

has not done that. Viewing Detective Collins’s testimony in the context of all the evidence

presented, we cannot say that there is a reasonable probability that the results of

Stoermer’s trial would have been different but for trial counsel’s failure to object to this

testimony.

                           Trying the weapons charge to the jury

       {¶ 38} Stoermer next argues that counsel was ineffective for trying the charge of

the having weapons under a disability to the jury rather than trying it separately to the

court. The consequence of trying the charge to the jury, says Stoermer, was that the jury

learned that he had a prior conviction for cocaine possession and that he was then forced

to testify and to reveal that he had two more prior convictions.
                                                                                          -17-


       {¶ 39} At a bench conference immediately after the testimony of the State’s final

witness, the State asked trial counsel if he would like to stipulate to Stoermer’s prior drug

convictions. Counsel said that he was going to ask Stoermer about the prior convictions

when he testified. In the end, counsel agreed to stipulate that a prior conviction for cocaine

possession put Stoermer under a disability to possess firearms from which he had not

been relieved.

       {¶ 40} “ ‘A recognized concern with trying a weapons under a disability charge to

the jury is that, in a case where a defendant does not testify, the jury would learn about a

defendant’s prior conviction for the sole reason that the charge was tried before them and

not a judge.’ ” State v. Jones, 2d Dist. Montgomery No. 24409, 2011-Ohio-5966, ¶ 11,

citing State v. Ingram, 10th Dist. Franklin No. 06AP-984, 2007-Ohio-7136, ¶ 77. But when

a defendant chooses to testify in his own defense, the defendant may be subject to cross-

examination about his prior felony convictions. State v. Sanders, 2016-Ohio-4724, 66

N.E.3d 1239, ¶ 32 (2d Dist.), citing Evid.R. 609(A) and State v. Wright, 48 Ohio St.3d 5,

7, 548 N.E.2d 923 (1990) (noting that evidence of an accused’s prior convictions may be

admitted as bearing on credibility). “When a defendant’s version of what occurred

contradicts other witnesses, his credibility is at issue and it may be appropriate to impeach

the defendant and to test his credibility by introducing testimony regarding his prior

convictions.” State v. Owings, 2d Dist. Montgomery No. 21429, 2006-Ohio-4281, ¶ 29;

Sanders at ¶ 33 (quoting the same).

       {¶ 41} Here, Stoermer testified about his prior convictions. However, the trial court

gave the jury a limiting instruction stating that evidence of the prior convictions was

admitted for the limited purposes of proving a legal disability and assessing his credibility
                                                                                         -18-


and could not be considered as character evidence or to indicate that he had acted in

conformance with such character:

               The law and fundamental fairness prohibit you from drawing an

       inference that other crimes alleged to have been committed by the

       Defendant make it more likely that he committed the offenses for which he

       is on trial. * * *

               ***

               If you find that the State has proven prior convictions beyond a

       reasonable doubt, you may consider that evidence but only for the limited

       purposes of determining whether it proves that the Defendant was under a

       legal disability on the date in question and evaluating the Defendant's

       credibility as a witness. You may not consider it for purposes of drawing the

       aforementioned forbidden inference.

(Tr. Vol. II 140-141). Since a limiting instruction was given and Stoermer testified, we

cannot conclude that trial counsel was ineffective for trying the weapons charge to the

jury. Compare Sanders at ¶ 34 (concluding the same where a weapons charge was tried

to the jury, the defendant testified, and the court gave a limiting instruction).

       {¶ 42} Stoermer suggests that his choice to testify was the result of counsel’s

decision to try the weapons charge to the jury. But to show ineffective assistance,

Stoermer must show that his free decision to testify was encumbered by trial counsel’s

decision. See Sanders at ¶ 35. Stoermer has not shown this. There is no evidence that

his decision to testify was influenced by trial counsel’s decision to try the weapons charge

to the jury.
                                                                                       -19-

        Testimony about involvement with law enforcement and opinion testimony

       {¶ 43} Stoermer lastly argues that counsel was ineffective for eliciting testimony

about his past involvement with law enforcement and for failing to object to opinion

testimony. The alleged improper testimony was given by Detective Collins and concerned

the jail-call recordings. This is the pertinent exchange during defense counsel’s cross-

examination of Collins:

       Q. We heard an audio recording apparently of a jail call, and you identified

       that as being Mr. Stoermer’s voice?

       A. I said it sounded like his voice, yes, sir.

       Q. Sounded like his voice. Have you had the opportunity to have contact

       with Mr. Stoermer in the past and interview him? Have you had the chance

       in the past to interview one-on-one Mr. Stoermer?

       A. Mr. Stoermer and I had a law enforcement relationship prior to this arrest

       in 2010 where we spoke on the phone on a consistent basis.

(Tr. Vol. 1, 220-221). And this is the pertinent exchange on redirect:

       Q. In the jail call you heard Mr. Stoermer admits to having a little bit of

       powder, correct?

       A. Correct.

       Q. Is it surprising to you through your investigation that he would not admit

       to having a lot of powder that was located in that vehicle?

       A. No.

(Id. at 227).

       {¶ 44} Stoermer says that the testimony elicited by counsel during the cross-
                                                                                       -20-


examination gave the jury the impression that he was in the drug business, making it

more likely for the jury to believe that the drugs involved in this case were his. He also

argues that counsel should have objected to the redirect testimony on grounds of

relevance. Basically, Stoermer contends that Detective Collins told the jury that he was a

drug dealer and that drug dealers do not admit possessing large quantities of drugs.

       {¶ 45} Viewing Detective Collins’s testimony in the aggregate, we conclude that

Stoermer has failed to meet his burden of demonstrating that the testimony was actually

prejudicial to his defense. Jurors could have inferred that Stoermer had been an informant

in the past and had been of assistance to law enforcement. Even assuming that Collins’s

testimony was improper, we are unable to say that there is a reasonable probability that

the result of the trial would have been different but for this testimony.

       {¶ 46} The third assignment of error is overruled.

                                      III. Conclusion

       {¶ 47} We have overruled the three assignments of error presented. The trial

court’s judgment is affirmed.

                                      .............



WELBAUM, P.J. and FROELICH, J., concur.




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