[Cite as State v. Caldwell, 2013-Ohio-1417.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      26306

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
PHILLIP D. CALDWELL                                  COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 11 09 2469 (A)

                                  DECISION AND JOURNAL ENTRY

Dated: April 10, 2013



        CARR, Judge.

        {¶1}     Appellant Phillip Caldwell appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}     According to Christopher Trammell, on the evening of July 23, 2011, he attended

a friend’s bachelor party. When he got home, his fiancée, April Haskins, began arguing with

him, so he went out to his car to have a cigar and watch television. After a while he decided to

go inside, but before he got to the door, two men approached, and one of them shot him two

times. At the hospital, Mr. Trammell told police that he knew the shooter as “PT.” Officers

presented him with a photo array, and he identified Phillip Caldwell and Russell Suggs as the

two men who had approached him. At trial, however, Mr. Trammell said that he does not snitch

on other people. He claimed that he does not know who PT is and that “PT” is merely the name

he has given to the person that he heard his fiancée was seeing while he was in prison. He
                                                 2


testified that, because he was on medication while he was at the hospital, he misunderstood the

officer’s instructions about the photo array and merely identified anyone that he recognized in

the pictures. He testified that he had never had any problems with Mr. Caldwell or Mr. Suggs,

that they are like family to him, and that he could not think of any reason that one of them would

shoot him.

       {¶3}    Dwayne Tomlinson testified that he is Ms. Haskins’s brother. He said that, on the

night of the shooting, he asked his girlfriend, Maya Hammonds, to drive him to his sister’s

house. When they arrived, he went into the house and Ms. Hammonds stayed in the car. He

looked around, but could not find his sister or Mr. Trammell, so he returned to the car. As they

pulled away, he noticed Mr. Trammell standing in the driveway, so he told his girlfriend to stop.

After he got out, he saw another car pull up with Mr. Caldwell and Mr. Suggs inside. When he

heard a gunshot, he looked and saw that Mr. Caldwell was holding a gun. After the second shot,

he ran back to his girlfriend’s car and they drove away. They returned a short time later and

found Mr. Trammell lying on the ground bleeding. According to Mr. Tomlinson, while they

were at the hospital waiting for news on Mr. Trammell’s condition, Mr. Suggs arrived and

explained to them that “he didn’t know what was going on,” but that it “wasn’t his fault” and that

he had “nothing to do with what was going on.”

       {¶4}    April Haskins testified that she is Mr. Trammell’s fiancée. She said that, a few

hours before the shooting, she ran into Mr. Caldwell and Mr. Suggs at a bar. She said that, at

one point, Mr. Caldwell touched her inappropriately, but he later apologized. She did not tell

Mr. Trammell about the incident. She testified that, after Mr. Trammell went out to his car, she

fell asleep on the couch. She did not wake up until a police officer knocked at her door

following the shooting. She said that, at the hospital, Mr. Trammell told her that Mr. Caldwell
                                                3


and Mr. Suggs were at their house at the time he got shot. She also said that Mr. Suggs came to

the hospital and admitted that he was present during the shooting. She also overheard Mr. Suggs

tell Mr. Caldwell on the telephone “I’m about to come get you. This bitch ass nigga C boy done

snitched,” meaning that Mr. Trammell had revealed who shot him.                She denied being

romantically involved with Mr. Caldwell, but thought that Mr. Caldwell had dated Mr.

Trammell’s daughter.

       {¶5}    Ms. Hammonds testified that she has known Mr. Trammell and Ms. Haskins for a

long time, but she did not know Mr. Caldwell or Mr. Suggs until after the shooting. According

to her, she drove Mr. Tomlinson to his sister’s house because that was where he was staying and

he told her that he needed to get something. She said that, as she was waiting in the car, she saw

Mr. Trammell standing at the entrance of the garage when a man walked up to him. She said

that, as the men were talking, she saw her boyfriend exit the house, then heard gunshots. Her

boyfriend ran back to the car and they drove away. When they returned to the house, Mr.

Trammell was lying on the ground. Ms. Hammonds testified that she met Mr. Suggs at the

hospital. When he arrived, she tried to tell the police that he had been with the shooter, but they

would not listen to her. Ms. Hammonds did not remember Mr. Suggs making any telephone

calls while he was at the hospital because, according to her, he was too busy arguing with her.

       {¶6}    The Grand Jury indicted Mr. Caldwell for felonious assault with a firearm

specification. A jury found him guilty of the offense and specification, and the trial court

sentenced him to seven years in prison. Mr. Caldwell has appealed, assigning five errors.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN ADMITTING HEARSAY EVIDENCE OVER
       DEFENDANT’S OBJECTION.
                                                 4



       {¶7}    Mr. Caldwell argues that the trial court incorrectly allowed Mr. Tomlinson, Ms.

Haskins, and Mr. Hammonds to testify about what Mr. Suggs said at the hospital, incorrectly

allowed Ms. Haskins to testify about whom Mr. Trammell told her had shot him, incorrectly

allowed a police officer to testify that Mr. Trammell identified his shooter as PT, and incorrectly

allowed an officer to testify about what Mr. Tomlinson had stated during a police interview. He

has argued that the statements were inadmissible hearsay.         Evidence Rule 801(C) defines

“hearsay” as “a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” As a general rule, hearsay

is not admissible. Evid.R. 802.

       {¶8}    Mr. Caldwell failed to object to several of the statements that he alleges were

hearsay. This Court has long held that “an appellate court will not consider as error any issue a

party was aware of but failed to bring to the trial court’s attention[ ]” at a time when the trial

court might have corrected the error. State v. Dent, 9th Dist. No. 20907, 2002–Ohio–4522, ¶ 6.

Mr. Caldwell, therefore, has forfeited his right to challenge those statements on appeal. State v.

Mohamed, 9th Dist. No. 11CA0050-M, 2012-Ohio-3636, ¶ 22.

       {¶9}    The Ohio Supreme Court has held that, even if a party forfeits an argument by

failing to make an appropriate objection during trial, a court may notice plain error. State v.

Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 15, 23. Mr. Caldwell, however, did not argue

plain error in his brief. While he argued plain error in his reply brief, a party “may not raise new

* * * issues for consideration in his reply brief; rather, the reply brief is ‘merely an opportunity

to reply to the brief of the appellee.’” Willett v. Willett, 9th Dist. No. 22167, 2005-Ohio-342, ¶ 8

fn. 1, quoting State v. Palmison, 9th Dist. No. 20854, 2002-Ohio-2900, ¶ 32, fn. 2; see Loc.R.
                                                5


7(D). Accordingly, this Court will only review the alleged hearsay statements to which Mr.

Caldwell objected.

       {¶10} Mr. Caldwell’s first hearsay objection was to Mr. Tomlinson’s testimony about

what Mr. Suggs said at the hospital after the shooting. According to Mr. Tomlinson, Mr. Suggs

“was just trying to see if [Mr. Trammell] was all right and saying that he didn’t have nothing to

do with what was going on, he didn’t know what was going on.” When asked whether Mr.

Suggs was being apologetic, Mr. Tomlinson answered: “He was just saying it wasn’t his fault,

he didn’t know what was going on.” Mr. Caldwell argues that the testimony bolstered the

testimony of other witnesses regarding whether Mr. Suggs was present when he allegedly shot

Mr. Trammell.

       {¶11} Even if the trial court improperly allowed Mr. Tomlinson’s testimony, we

conclude that it was harmless error. Crim.R. 52(A) (providing that any error that does not affect

substantial rights shall be disregarded). As Mr. Caldwell has noted, Mr. Tomlinson was not the

only witness who testified about what Mr. Suggs said at the hospital. See State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, ¶ 59 (concluding that admission of cumulative evidence was

harmless error). According to Ms. Haskins, she heard Mr. Suggs say that, although he was at her

house, he was not involved with the shooting. Mr. Caldwell did not object to her testimony. Ms.

Hammond also testified without objection that Mr. Suggs admitted at the hospital to being

present during the shooting.

       {¶12} Mr. Caldwell also objected to Ms. Haskins’s testimony about what Mr. Trammell

told her about the shooting. According to Ms. Haskins, when she asked Mr. Trammell about the

shooting, the first time he told her that he did not know who shot him and the second time he told

her that Mr. Suggs and Mr. Caldwell were at their house when he got shot. Mr. Caldwell argues
                                                6


that Ms. Haskins’s testimony impermissibly bolstered the testimony of the State’s other

witnesses.

       {¶13} Ms. Haskins’s testimony was admissible because it was offered to impeach Mr.

Trammell’s testimony, not “for the truth of the matter asserted.” Evid.R. 801(C); see State v.

Young, 9th Dist. No. 93CA005710, 1994 WL 466802, *2 (Aug. 31, 1994).              According to a

police detective, following the shooting, Mr. Trammell told him that Mr. Caldwell had been

involved. At trial, however, Mr. Trammell testified that the only reason that he picked Mr.

Caldwell out of the photo array was because he had been heavily medicated and misunderstood

the detective’s instructions. Consequently, the court allowed the State to treat Mr. Trammell as a

hostile witness. Ms. Haskins’s testimony that Mr. Trammell told her that Mr. Caldwell was at

their house at the time of the shooting cast doubt on Mr. Trammell’s explanation for why he had

selected Mr. Caldwell out of the photo array.        Accordingly, it was proper impeachment

testimony. See State v. Conley, 10th Dist. No. 99AP-579, 2000 WL 290189, *7 (Mar. 21, 2000)

(explaining that “[i]mpeachment by contradiction is a recognized mode of impeachment not

governed by the Rules of Evidence but rather by common law principles.”); Evid.R. 616(C).

       {¶14} Upon review of the record, we conclude that Mr. Caldwell has not established that

the court improperly admitted any hearsay testimony that affected his substantial rights. See

Crim.R. 52(A). His first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       MR. CALDWELL WAS DENIED THE EFFECTIVE ASSISTANCE OF
       COUNSEL AND HIS CONVICTION WAS IN VIOLATION OF HIS SIXTH
       AMENDMENT RIGHT TO COUNSEL.

       {¶15} Mr. Caldwell argues that his lawyer was ineffective for not objecting to a number

of alleged hearsay statements. He also argues that his lawyer failed to move for a fingerprint
                                                 7


analysis of the shell casings that were found at the scene of the shooting, failed to involve him in

the jury selection process, and improperly allowed an active police officer to serve on the jury.

In order to demonstrate ineffective assistance of counsel, Mr. Caldwell must show (1) deficiency

in the performance of counsel “so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by counsel

were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington, 466 U.S.

668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for counsel’s

errors, there is a reasonable possibility that the outcome of the trial would have been different.

Id. at 694.

        {¶16} Regarding his lawyer’s failure to object to hearsay, Mr. Caldwell argues that his

lawyer should have objected when Ms. Haskins testified that Mr. Suggs told her at the hospital

on the night of the shooting that, although he was present during the shooting, he was not

involved. He argues that his lawyer should also have objected when Ms. Haskins testified about

what she allegedly heard Mr. Suggs say on the phone to Mr. Caldwell. He also argues that his

lawyer should have objected when Ms. Hammonds testified that Mr. Suggs told her that he had

been the driver of the shooter’s vehicle. He further argues that his lawyer should have objected

when a police officer testified about what Mr. Tomlinson told him during interviews on the night

of the shooting.

        {¶17} The Ohio Supreme Court has written that “the failure to make objections [to

inadmissible hearsay] is not alone enough to sustain a claim of ineffective assistance of counsel.”

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 103. The defendant still has to show

that there was a substantial violation of counsel’s essential duties to his client and that he was

materially prejudiced by his lawyer’s ineffectiveness. State v. Holloway, 38 Ohio St.3d 239, 244
                                                 8


(1988). In this case, Mr. Caldwell has not demonstrated that he was prejudiced by his lawyer’s

actions.

       {¶18} Regarding the officer’s testimony about his interview with Mr. Tomlinson, we

conclude that, even if the testimony was hearsay, its admission was not prejudicial because Mr.

Tomlinson testified and was available for cross-examination. State v. Spirko, 59 Ohio St.3d 1,

31 (1991) (concluding that admission of hearsay evidence was not prejudicial because the person

whom the witness quoted testified and was available for cross-examination on the issue).

Regarding Mr. Suggs’s alleged statements to Ms. Haskins and Ms. Hammonds that, although he

had been present during the shooting, he was not involved, we note that his alleged statements

did not implicate Mr. Caldwell. Furthermore, although Ms. Haskins claimed that the person Mr.

Suggs called from the hospital was Mr. Caldwell, the only statement that she alleged that she

overheard him say did not include anything that would identify Mr. Caldwell as the person on

the other end of the call. In light of the fact that Mr. Suggs’s alleged statement did not identify

Mr. Caldwell as the person he was talking to or otherwise implicate Mr. Caldwell in the

shooting, we conclude that Mr. Caldwell has not demonstrated that there is a reasonable

possibility that the outcome of the trial would have been different if his lawyer had objected to

the testimony.

       {¶19} With respect to Mr. Caldwell’s lawyer’s discovery requests, we note that

“[d]ebatable trial tactics and strategies do not constitute a denial of effective assistance of

counsel.” State v. Smith, 9th Dist. No. 24382, 2009-Ohio-1497, ¶ 9. According to Officer

Michael Fox, he did not test the shell casings for fingerprints because, even if the casings had

fingerprints on them at some point, they would have been vaporized when the shells were fired.

He also testified that, although they did find one unfired round, they did not process the scene for
                                                  9


fingerprints because it had been raining, which can “wash away evidence[,] so to speak.” In

light of his uncontested testimony, we conclude that it was reasonable for Mr. Caldwell’s lawyer

not to request a fingerprint analysis of the bullet and shell casings found at the scene.

       {¶20} Regarding the lawyer’s reason for leaving a police officer on the jury, we note

that the officer was the last alternate added to the jury and that the lawyer had already used all of

Mr. Caldwell’s peremptory challenges. She used one of the challenges on another police officer,

one on the spouse of an attorney, one on a federal law clerk, and one on the vice-president of a

company. Furthermore, there is nothing in the record that demonstrates that the juror should

have been challenged for cause. See State v. Richmond, 2d Dist. No. 2011-CA-17, 2011-Ohio-

6807, ¶ 2, 35-37. During voir dire, the juror told the court that the previous day he had made five

traffic stops and had let each person go with a warning. Mr. Caldwell’s lawyer also specifically

asked the juror to explain the phrase “innocent until proven guilty” to her. The juror also

correctly answered a question about reasonable doubt. Mr. Caldwell’s lawyer, therefore, could

have reasonably determined that the juror would correctly apply the law to the facts, despite his

employment as a police officer.

       {¶21} Regarding Mr. Caldwell’s assertion that his lawyer failed to consult with him

during voir dire, the Ohio Supreme Court has held that, if “a defendant bases an ineffective-

assistance claim on an assertion that his counsel allowed the impanelment of a biased juror, the

defendant ‘must show that the juror was actually biased against him.’” State v. Mundt, 115 Ohio

St.3d 22, 2007-Ohio-4836, ¶ 67, quoting Miller v. Francis, 269 F.3d 609, 616 (6th Cir.2001).

The record does not contain any information regarding the extent to which Mr. Caldwell was

able to consult with his lawyer during voir dire or any obvious juror bias. We, therefore,

conclude that this issue would be more appropriate for a post-conviction relief proceeding than
                                                 10


addressed on direct appeal. See State v. Dowdell, 9th Dist. No. 25930, 2012-Ohio-1326, ¶ 10;

State v. Sweeten, 9th Dist. No. 07CA009106, 2007-Ohio-6547, ¶ 12. Mr. Caldwell’s second

assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE FINDING THAT MR. CALDWELL WAS GUILTY WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶22} Mr. Caldwell argues that his conviction is against the manifest weight of the

evidence.   A determination of whether a conviction is against the manifest weight of the

evidence does not permit this Court to view the evidence in the light most favorable to the State

to determine whether the State has met its burden of persuasion.      State v. Love, 9th Dist. No.

21654, 2004–Ohio–1422, ¶ 11. Rather, “an appellate court must review the entire record, weigh

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

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶23} Weight of the evidence concerns the tendency of a greater amount of credible

evidence to support one side of the issue more than the other. State v. Thompkins, 78 Ohio St.3d

380, 387 (1997). Further, when reversing a conviction on the basis that it was against the

manifest weight of the evidence, an appellate court sits as a “thirteenth juror,” and disagrees with

the factfinder’s resolution of the conflicting testimony. Id.

       {¶24} The jury convicted Mr. Caldwell of felonious assault under R.C. 2903.11. Mr.

Caldwell does not deny that someone shot Mr. Trammell. His argument is that the evidence does

not establish that he was involved in it. He notes that there was no physical evidence connecting

him to the shooting. He also notes that Mr. Trammell testified that the only reason he picked Mr.
                                                11


Caldwell out of a photo array is because he was under the influence of medication and thought

that he was supposed to identify anyone that he knew.           He contends that, although Mr.

Tomlinson testified that he was at Mr. Trammell’s residence at the time of the shooting, Mr.

Tomlinson did not testify that he was the shooter.         He also contends that, although Mr.

Tomlinson told the police that Mr. Caldwell was the shooter, Mr. Tomlinson was merely going

along with what he thought Mr. Trammell had told police. Mr. Caldwell further notes that Ms.

Haskins and Ms. Hammond gave conflicting testimony with respect to whether Mr. Suggs called

Mr. Caldwell from the hospital. Finally, he argues that this Court should not give any weight to

any of the hearsay statements that were admitted during the course of the trial.

       {¶25} The first time Mr. Tomlinson spoke to police, he said that he saw Mr. Suggs and

another man get out of a car and that it was the man that he could not identify who shot Mr.

Trammell. He indicated that, before the interview began, an officer had told him that Mr.

Trammell said the shooter’s name was Phil. He said that there was only one Phil that he could

think of and that the gait of the shooter was consistent with that person. About an hour later, Mr.

Tomlinson spoke to the officer again and revealed that he had not disclosed everything he knew

about the shooting. During the second interview, Mr. Tomlinson affirmatively identified the

person he knows as Phil as the person who shot Mr. Trammell. At trial, Mr. Tomlinson testified

that he saw Mr. Suggs and Mr. Caldwell get out of a car at Mr. Trammell’s house. After the first

shot, he looked to see who had the gun and saw that it was Mr. Caldwell. He testified that,

although Mr. Suggs showed up at the hospital, Mr. Caldwell did not. He also corroborated Ms.

Haskins testimony that Mr. Suggs made telephone calls from the hospital.

       {¶26} Although there were some discrepancies in the witnesses’ testimony, Mr.

Tomlinson maintained from shortly after the shooting that Mr. Caldwell was the person who shot
                                                12


Mr. Trammell. Mr. Trammell also initially identified Mr. Caldwell as one of the men who had

been involved in the attack, before changing his story at trial, claiming that “I don’t tell on

people.”   Upon review of the record, we cannot say that the jury lost its way when it determined

that Mr. Caldwell feloniously assaulted Mr. Trammell. Mr. Caldwell’s third assignment of error

is overruled.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING ON
       DEFENDANT’S MOTION FOR NEW TRIAL.

       {¶27} After the jury found Mr. Caldwell guilty, he moved for a new trial alleging

ineffective assistance of counsel, prosecutorial misconduct, and insufficient evidence. The trial

court denied the motion because it determined that ineffective assistance is not a ground for a

new trial, that Mr. Caldwell had not demonstrated prosecutorial misconduct, and that there was

sufficient evidence to support his conviction. Mr. Caldwell argues that the court should have

held a hearing on his motion because several of the issues he raised could not be resolved

without one. The decision on whether a motion for new trial warrants a hearing lies within the

discretion of the trial court. State v. Smith, 30 Ohio App.3d 138, 139 (9th Dist.1986).

       {¶28} Regarding Mr. Caldwell’s ineffective assistance claims, the trial court incorrectly

concluded that they could not be raised in a motion for new trial. State v. Lei, 10th Dist. No.

05AP-288, 2006-Ohio-2608, ¶ 25; State v. Lordi, 140 Ohio App.3d 561, 569 (7th Dist.2000)

(“Although a petition for post-conviction relief may provide a more effective and appropriate

vehicle for the assertion of an ineffective-assistance-of-counsel claim, a defendant may validly

assert the denial of effective assistance of counsel as a basis for new trial pursuant to Crim.R.

33(A)(1) or (E)(5).”); State v. Judy, 1st Dist. No. C-850796, 1986 WL 8100, *1 (July 23, 1986).
                                                13


The question, however, is whether the mistake made by the trial court affected Mr. Caldwell’s

substantial rights. See Crim.R. 52(A).

       {¶29} Mr. Caldwell argues that he raised two issues that could not be resolved without a

hearing. First, he argued in his motion that his lawyer failed to request a fingerprint analysis of

the shell casings. As we previously explained, an officer from the crime scene unit testified that,

even if a shell casing contains a fingerprint, the fingerprint vaporizes when the shell is fired. He

also indicated that any fingerprints that might have been on the unfired bullet were likely

destroyed by the rain. Mr. Caldwell did not present any evidence with his motion for new trial

that disputed the officer’s testimony. Second, Mr. Caldwell argued that his lawyer did not

involve him in the jury selection process. In order to establish a claim for ineffective assistance

of counsel, Mr. Caldwell had to establish that, but for his lawyer’s errors, there is a reasonable

possibility that the outcome of the trial would have been different. Strickland v. Washington,

466 U.S. 668, 694 (1984). In his motion, Mr. Caldwell did not allege anything he would have

done differently during voir dire. Accordingly, we conclude that the trial court did not abuse its

discretion when it denied Mr. Caldwell’s motion for new trial without holding a hearing. His

fourth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR V

       THE ADMISSION OF CO-DEFENDANT SUGGS’S HEARSAY STATEMENT
       WAS IN VIOLATION OF MR. CALDWELL’S RIGHT TO
       CONFRONTATION OF WITNESSES AS GUARANTEED BY THE SIXTH
       AMENDMENT TO THE UNITED STATES CONSTITUTION.

       {¶30} Mr. Caldwell argues that the trial court violated his right to confrontation by

allowing Ms. Haskins and Ms. Hammonds to testify about what they heard Mr. Suggs say at the

hospital. Mr. Caldwell, however, did not object to the testimony and has not developed a plain

error argument in his appellate brief. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 15,
                                                14


23; State v. Strehl, 9th Dist. No. 10CA0063-M, 2012-Ohio-119, ¶ 18. While he has argued plain

error in his reply brief, he may not raise a new issue for consideration in his reply brief. Willett

v. Willett, 9th Dist. No. 22167, 2005-Ohio-342, ¶ 8 fn. 1, quoting State v. Palmison, 9th Dist. No.

20854, 2002-Ohio-2900, ¶ 32, fn. 2; see Loc.R. 7(D).           Accordingly, Mr. Caldwell’s fifth

assignment of error is overruled.

                                                III.

       {¶31} Mr. Caldwell’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT
                                                 15




MOORE, P. J.
CONCURS.

BELFANCE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶32} I concur in the judgment. With regard to Mr. Caldwell’s second assignment of

error, I believe there could be merit to his argument that counsel was ineffective in failing to

secure testing of the cartridge and casings that remained in the gun. I do not agree with the

majority that Officer Fox’s testimony about the likelihood of discovering fingerprints on the

cartridge and casings found at the scene establishes that Mr. Caldwell’s trial counsel was not

deficient in failing to have them examined. Officer Fox’s testimony was speculative. He did not

have knowledge as to whether fingerprints were present or not. He merely stated that it was

possible that they did not exist. Furthermore, I do not believe that it is appropriate to potentially

foreclose Mr. Caldwell from post-conviction relief (e.g. discovering that someone else’s

fingerprints were on the items discovered at the scene) on the basis that Officer Fox testified that

he did not believe fingerprints were likely to be found. He could be wrong, and this could cause

potential problems concerning the law of the case. Nevertheless, because the record contains no

evidence whether there were any fingerprints on the cartridge or casings discovered at the scene

of the shooting, Mr. Caldwell cannot demonstrate in his direct appeal that he suffered any

prejudice, even assuming that his trial counsel was deficient. Therefore, his assignment of error

should still be overruled.

       {¶33} I also would overrule Mr. Caldwell’s first assignment of error on the basis that

any error in admitting the alleged hearsay evidence was harmless.

       {¶34} Accordingly, I concur in the judgment.
                                         16



APPEARANCES:

SCOT A. STEVENSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
