         [Cite as State v. Valines, 2014-Ohio-890.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-130105
                                                          TRIAL NO. B-1107644
        Plaintiff-Appellee,                           :

  vs.                                                 :     O P I N I O N.

ANTONIO VALINES,                                      :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
                           Cause Remanded

Date of Judgment Entry on Appeal: March 12, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela M. Stagnaro, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




H ILDEBRANDT , Judge.


       {¶1}        Defendant-appellant Antonio Valines appeals the judgment of the

Hamilton County Court of Common Pleas convicting him of aggravated murder with

a firearm specification and having a weapon while under a disability.         He was

convicted after a jury trial.

                          A Drug Transaction and a Robbery

       {¶2}        One evening in November 2011, Dionte Armstead went to the Mt.

Airy neighborhood of Cincinnati to sell a quantity of marijuana. Later that same

night, Cincinnati police officers responded to a report of shots fired at an apartment

complex in Mt. Airy.

       {¶3}        When the officers arrived at the complex, they saw Cortaize Parker

in the parking lot. Parker was throwing a digital scale into a garbage can and seemed

very agitated. The officers took Parker into custody and entered one of the buildings

of the apartment complex.

       {¶4}        Once inside, the officers found the body of Armstead in the second-

floor hallway. He had been shot numerous times. Outside the apartment building,

the officers found a Glock handgun and a large amount of marijuana concealed in a

wooded area.

       {¶5}        Soon after, the investigating officers received a report that a

gunshot victim had been taken to the University of Cincinnati Medical Center. The

officers went to the hospital and discovered that Valines had been shot.         They

interviewed Valines, who told the officers that he had been shot in an attempted

robbery in the Avondale neighborhood of Cincinnati.




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        {¶6}     Subsequently, Valines told the officers that he had been involved in

the Mt. Airy shooting, but that he had been the victim of an attempted robbery.

Valines maintained that he had shot Armstead in self-defense after he had been fired

upon.

        {¶7}     At trial, Parker testified that he was staying at the apartment

complex on the day of the shooting, and Valines had called him to borrow a scale.

Parker had intended to retrieve the scale from his car and take it into the apartment

building. But after he had heard gun shots coming from the building, he had decided

to dispose of the scale instead. Parker confirmed that Valines had been known to

carry a Glock handgun.

        {¶8}     The state presented evidence that Armstead had died as a result of

gunshot wounds and that the bullets found in Armstead’s body were consistent with

having been fired from the Glock found outside the apartment building.

        {¶9}     Valines testified that he had arranged to buy marijuana from his

father and a man named Dionte Thompson. According to Valines, he was also going

to sell a Glock handgun to his father while buying marijuana from the pair. But

Valines testified that his father had not come to the apartment complex at the

appointed time. Instead, Thompson and Armstead had arrived at the complex’s

parking lot and held him at gunpoint.

        {¶10}    Valines testified that, despite being held at gunpoint, he had asked

Thompson and Armstead to follow him into the apartment building so that he could

weigh the marijuana. Valines testified that he had exchanged the money for the

marijuana after they had gone inside. But he stated that Armstead had taken the

marijuana back from him and had given it to Thompson. Then, according to Valines,

Armstead had begun shooting at him.



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       {¶11}      Valines testified that he had grabbed the marijuana back from

Thompson and had shot at Armstead while fleeing from the hallway of the apartment

building. Valines stated that he had left the building with the marijuana and that he

had concealed both it and the Glock in the wooded area near the apartment building.

       {¶12}      Valines stipulated that he had been convicted of a prior robbery in

2007 that had given rise to a legal disability.

       {¶13}      The jury found Valines guilty, and the trial court sentenced him to

life imprisonment without the possibility of parole for aggravated murder; to a

consecutive three-year prison term for the firearm specification; and to another

consecutive 36-month term for having a weapon under disability.

                                 Prior-Acts Evidence

       {¶14}      In his first assignment of error, Valines argues that the trial court

erred in admitting improper prior-acts evidence. Specifically, he contends that the

state was allowed to adduce inadmissible evidence about his previous robbery and

about his reputation for carrying a Glock handgun.

       {¶15}      We first note that because Valines did not object to the admission

of the evidence, we review the record for plain error. Under the plain-error standard,

we must affirm the conviction unless, but for the allegedly inadmissible evidence, the

outcome of the trial would have been different. See State v. Lukacs, 188 Ohio

App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 34 (1st Dist.).

       {¶16}      Evid.R. 404(B) states that “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other purposes, such as

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

absence of mistake or accident.” Demonstration of a defendant’s modus operandi is



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admissible under this rule if a prior criminal offense committed by an accused is

related to and shares “common features with the crime in question.” State v. Bey, 85

Ohio St.3d 487, 491, 709 N.E.2d 484 (1999), quoting State v. Lowe, 69 Ohio St.3d

527, 634 N.E.2d 616 (1994), paragraph one of the syllabus.

       {¶17}       In this case, there was no plain error in the admission of the

evidence. The state demonstrated that, in the prior robbery, Valines had lured his

victims to a designated location under the pretense of wanting to engage in a drug

transaction. He then robbed the victims at gunpoint. This same ruse was also the

alleged modus operandi in the instant case. The prior-acts evidence was therefore

admissible under Evid.R. 404(B). As for the testimony that he had been known to

carry a gun, we cannot say that such evidence likely affected the outcome of the trial,

in light of the other evidence adduced by the state. We overrule the first assignment

of error.

                               Prosecutorial Misconduct

       {¶18}       In his second assignment of error, Valines argues that the assistant

prosecutor made improper remarks to the jury and introduced inadmissible evidence

in violation of Valines’s right to a fair trial. Specifically, he argues that the prosecutor

made improper comments about his truthfulness and about the lack of evidence to

corroborate his testimony, and that the prosecutor improperly adduced evidence

about the prior robbery.      Valines failed to object to these alleged instances of

misconduct, and we again review the record for plain error.

       {¶19}       The test for prosecutorial misconduct is whether the prosecutor’s

questions or remarks were improper, and, if so, whether they prejudicially affected

the defendant’s substantial rights. State v. Glenn, 1st Dist. Hamilton No. C-090205,

2011-Ohio-829, ¶ 52, citing State v. Smith, 14 Ohio St.3d 13, 14-15, 470 N.E.2d 883




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(1984), and State v. Canyon, 1st Dist. Hamilton Nos. C-070729, C-070730, and C-

070731, 2009-Ohio-1263, ¶ 17.

        {¶20}       Once again, we find no plain error. The prosecutor’s statements

about Valines’s veracity focused on the evolving nature of his account of the events

during the investigation and how his previous statements diverged from his trial

testimony. Thus, the statements were fair comments on the evidence.

        {¶21}       And while comments about a defendant’s failure to present

evidence can certainly be improper under certain circumstances, we find no

impropriety in this case. Here, Valines asserted self-defense, which he was required

to prove by a preponderance of evidence. See State v. Carmen, 1st Dist. Hamilton

No. C-120692, 2013-Ohio-3325, ¶ 14. The prosecutor merely argued that Valines had

not met his burden and that his testimony did not withstand scrutiny.             The

comments did not tend to improperly shift the burden of proof or otherwise deprive

Valines of a fair trial.

        {¶22}       Next, though the prosecutor also referred to Valines as a “thief”

and a “predator,” these and similar references were based upon conduct that was

properly in evidence. As for the evidence and comments about the prior robbery, we

have addressed that issue under the first assignment of error.           The second

assignment of error is overruled.

                            Performance of Trial Counsel

        {¶23}       In his third assignment of error, Valines maintains that he was

deprived of the effective assistance of trial counsel.

        {¶24}       To establish ineffective assistance of counsel, the defendant must

demonstrate that counsel’s performance fell below an objective standard of

reasonable performance and that prejudice arose from counsel’s performance.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674



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(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two

and three of the syllabus.

       {¶25}       In this case, we find no deficiency on the part of trial counsel.

Valines first argues that counsel was derelict in failing to object to the prior-acts

evidence and to the alleged instances of prosecutorial misconduct. For the reasons

we have already stated, there was either no basis for objection or no prejudice

resulting from counsel’s performance.

       {¶26}       Valines also contends that counsel failed to object to the admission

of a statement he had made at the hospital on the night of the alleged offenses. But

because the record does not disclose any basis for the exclusion of the statement, we

find no merit in this argument.

       {¶27}       Valines also asserts that the prosecution was permitted to lead its

witnesses without objection and that defense counsel failed to more vigorously assert

that he had acted in self-defense. But as this court has held numerous times, we “will

not second-guess trial strategy and must indulge a strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance.” See, e.g.,

State v. Sweeting, 1st Dist. Hamilton No. C-120733, 2013-Ohio-5097, ¶ 16. Valines

has failed to overcome that presumption here, and we overrule the third assignment

of error.

                      Sufficiency and Weight of the Evidence

       {¶28}       In his fourth assignment of error, Valines argues that his

convictions were based on insufficient evidence and were against the manifest weight

of the evidence.

       {¶29}       In reviewing the sufficiency of the evidence to support a conviction,

the relevant inquiry for the appellate court “is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found


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the essential elements of the crime beyond a reasonable doubt.” State v. Waddy, 63

Ohio St.3d 424, 430, 588 N.E.2d 819 (1992). To reverse a conviction on the manifest

weight of the evidence, a reviewing court must review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses, and

conclude that, in resolving the conflicts in the evidence, the trier of fact clearly lost its

way and created a manifest miscarriage of justice in finding the defendant guilty.

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶30}       The aggravated-murder statute, R.C. 2903.01(B)(1), provides that

“[n]o person shall purposely cause the death of another * * * while committing or

attempting to commit, or while fleeing immediately after committing or attempting

to commit * * * aggravated robbery * * *.” R.C. 2911.01(A)(1), governing aggravated

robbery, provides that “[n]o person, in attempting or committing a theft offense ** *

or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly

weapon on or about the offender’s person * * * and either display the weapon,

brandish it, indicate that the offender possesses it, or use it * * *.”

       {¶31}       In this case, the convictions were in accordance with the evidence.

The state presented evidence that Armstead had gone to the apartment complex with

a large amount of marijuana and that Valines had fatally shot him.                 Valines’s

possession of the marijuana and the Glock after the shooting of Armstead supported

the state’s assertion that Valines had taken the marijuana from Armstead and his

companion by force. The jury apparently rejected Valines’s contention that he had

paid for the marijuana and that he had himself been the victim of an attempted

robbery.

       {¶32}       Still, Valines argues that his attempt to obtain a scale was

inconsistent with the state’s theory that he had intended to rob the victims. He



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contends that his telephone call to Parker while he was meeting with Armstead and

Thompson demonstrated his intent to purchase the marijuana. We find no merit in

this argument. Valines’s telephone call about the scale was consistent with the

state’s theory that he had intended to lure the victims into the apartment building

where he could rob them; the request to weigh the marijuana was simply part of the

subterfuge.    In any event, these issues of fact were properly submitted to the jury,

which resolved the issues in favor of the state. We cannot say that the jury lost its

way in finding Valines guilty, and we overrule the fourth assignment of error.

                                      Sentencing

       {¶33}      In his fifth and final assignment of error, Valines argues that the

court erred in its sentence. Valines contends that the trial court erred by failing to

consider the proper statutory factors before imposing a life sentence without the

possibility of parole. We find no merit in this argument. The court conducted a

thorough sentencing hearing during which it explicitly considered Valines’s abysmal

criminal record, noted that Valines posed a danger to society, and found that Valines

was not amenable to rehabilitation. The record supports those findings, and the

sentence was not contrary to law.         See, generally, R.C. 2953.08(G)(2); State v.

White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.). We overrule, in part, the

fifth assignment of error.

       {¶34}      Valines also argues that the court erred by imposing consecutive

sentences for aggravated murder and possessing a weapon under disability without

making the requisite statutory findings. See R.C. 2929.14(C)(4). The state concedes

that the trial court failed to make the necessary findings, and we accordingly sustain,

in part, the fifth assignment of error.




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                                      Conclusion

       {¶35}      We vacate the sentences and remand the cause for resentencing in

accordance with law. In all other respects, we affirm the judgment of the trial court.

          Judgment affirmed in part, sentences vacated in part, and cause remanded.



CUNNINGHAM, P.J., and HENDON, J., concur.




Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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