         [Cite as State v. Ridley, 2011-Ohio-2477.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-100301
                                                          TRIAL NO. B-0902588
        Plaintiff-Appellee,                           :

  vs.                                                 :   D E C I S I O N.

DAMON RIDLEY,                                         :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Affirmed

Date of Judgment Entry on Appeal: May 25, 2011


Joseph T. Deters, Hamilton County Prosecutor, and Ronald W. Springman, Jr.,
Assistant Prosecutor, for Plaintiff-Appellee,

Bryan Perkins, for Defendant-Appellant.




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




C UNNINGHAM , Judge.

       {¶1}    Defendant-appellant Damon Ridley appeals the judgment of the

Hamilton County Court of Common Pleas convicting him on one count of attempted

bribery. For the reasons that follow, we affirm.

       {¶2}    In 2008, Ridley was the bailiff for Judge John West of the Hamilton

County Court of Common Pleas.        Routinely, Judge West would review sentencing

information compiled by his bailiff several days before a scheduled sentencing

hearing and handwrite the sentence that he intended to impose on a document kept

with the case jacket.      The judge stored these case jackets on a credenza in his

chambers until sentencing. Ridley had access to the judge’s chambers, and he had

the responsibility after sentencing to transport the handwritten sentencing order to a

secretary to be typed and then journalized.

       {¶3}    On March 25, 2008, Charles Johnson pleaded guilty to drug-

trafficking charges in Judge West’s courtroom. The judge ordered a presentence

investigation and scheduled Johnson’s sentencing for May 7, 2008.            Johnson

thought that he would be sentenced to prison for the third- and fourth-degree

felonies that he had pleaded guilty to because of his prior criminal record and

because the state was seeking incarceration.        Several days before Johnson’s

scheduled sentencing hearing, Judge West asked for and received Johnson’s case

jacket from Ridley. He then created a handwritten sentencing document indicating

that he would sentence Johnson to River City, a drug-treatment facility, instead of to

prison. The judge chose River City because Johnson had not been previously treated

for a drug addiction.

       {¶4}    Shortly before Johnson’s May 7, 2008, sentencing hearing, federal

agents from the Drug Enforcement Administration (DEA) secured a warrant to


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wiretap Johnson’s cellular phone calls as part of a federal drug investigation.

Johnson, who was unaware that his phone conversations were being monitored, had

conversations on the evening of May 6, 2008, indicating that he had just learned that

he would definitely be sentenced to River City. These conversations aroused the

suspicions of the DEA agents, who contacted the county prosecutor’s office and

asked the state to request a continuance of the sentencing. The next day, the state

requested a continuance of Johnson’s sentencing without disclosing the DEA’s

investigation. The court continued the sentencing hearing to May 21, 2008.

       {¶5}    Johnson’s recorded conversations over the next two weeks with

friends and family members established that Johnson’s friend Ronald Steele had

arranged for Johnson to meet Judge West’s bailiff at the Salway Park ball fields on

Spring Grove Avenue on the evening of May 6, 2008, and that, at the meeting,

Johnson had paid the bailiff $1000 to guarantee that Johnson would be sentenced to

River City. The recordings further indicated that the bailiff had offered to guarantee

“straight probation” for an additional $1500; that Johnson and the bailiff were to

meet again at the park on May 20, 2008, for Johnson to pay the bailiff the additional

$1500; that Johnson called Steele from the park to report that the bailiff had not

shown, and that Steele had been unable to contact the bailiff by telephone; and that

Johnson and Steele agreed that Johnson should meet with the bailiff the next

morning before his sentencing hearing.

       {¶6}    Federal officers performing surveillance observed Johnson appearing

at Salway Park on May 20, 2008, around 6:15 p.m., at a time when there were no ball

games scheduled. Officers observed Johnson look around, make a telephone call to

Steele concerning the bailiff’s absence, and then depart.     Several minutes later,

officers observed Ridley arrive in a Ford Explorer. Another male entered Ridley’s

vehicle and Ridley drove away.



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          {¶7}     On the next day, May 21, 2008, Officer Luke Putnick of the Cincinnati

Police Department appeared at the courthouse for Johnson’s sentencing hearing.

While sitting outside Judge West’s courtroom, Putnick observed Johnson and Ridley

leave the courtroom separately and converse in the hallway for five to ten minutes

before Johnson’s sentencing. Johnson was ultimately sentenced by Judge West to

River City.

          {¶8}     While Johnson served his sentence at River City, the DEA’s

investigation of Johnson’s drug-trafficking activities continued. In October 2008,

Johnson was indicted on federal drug charges.                 He then agreed to assist law

enforcement in the investigation against his codefendants in the federal crimes, as

well as in the investigation against Ridley, who had become the target of a formal

investigation by the Cincinnati Police Department.

          {¶9}     On October 28, 2008, Cincinnati police executed a search warrant at

Ridley’s residence. The next morning, on October 29, 2008, McKinley Brown, Chief

Investigator for the Hamilton County Prosecutor’s Office, interviewed Judge West

privately in his chambers about the information involving Ridley that federal

investigators had discovered in May 2008 from the wiretap on Johnson’s phone.

Ridley, who had been asked by the judge to retrieve Johnson’s case file that morning,

interrupted the interview by telling Detective Brown that he knew why Brown was

there and that he wanted to speak with Brown privately because he did not want to

hurt Judge West any further.

          {¶10}    Detective Brown and Ridley left the courthouse and walked across the

street to Brown’s office in the Hamilton County Prosecutor’s Office. There, Brown

and Sergeant Chris Conners of the Cincinnati Police Department commenced a

recorded interview after Ridley had waived his Miranda1 rights.


1   Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602.


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       {¶11}   When Brown asked Ridley if he knew Ronald Steele, Ridley stated

that he had known Steele for many years and that he had last seen Steele about a

month earlier at a bar where Steele had loaned him money to promote a comedy

event. Ridley also stated that he gambled two to three times a month at the riverboat

casinos in Indiana, and that, one day in March 2008, he had gambled away his entire

yearly check for coaching basketball, about $2000. When asked about Johnson’s

criminal case in Judge West’s courtroom, Ridley admitted that Steele had asked him

about it and that he had told Steele that he believed, based on his viewing of the

judge’s written sentencing recommendation, that Johnson would be sentenced to

River City.

       {¶12}   Ridley also admitted later in the interview that, around the time of

Johnson’s original sentencing hearing, he and Steele had arranged to meet at the ball

fields, and that Steele had said he would bring Johnson.       During the meeting,

Johnson asked Ridley if Ridley could do anything for him on his criminal case.

Ridley stated to Brown and Conner that he had merely told Johnson that he believed

Johnson would be sentenced to River City, and he denied taking any money from

him. At that interview, Ridley also denied that he had spoken to Johnson on May 21,

2008, outside Judge West’s courtroom.

       {¶13}   Ridley eventually informed Brown that he wanted to talk to him alone

without the tape recorder on. The interview ended soon after, and Brown and Ridley

then left Brown’s office and went outside. After a conversation on the street corner,

the two returned to Brown’s office, and the interview continued in the presence of

Hamilton County Assistant Prosecutor Mark Piepmeier. In this recorded interview,

Brown, Piepmeier, and Ridley discussed the possibility of Ridley pleading guilty to a

bill of information charging him with theft in office. Ridley also stated that Steele




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had given him $200 at a bar to “take care of him” after he had told Steele that

Johnson was going to be sentenced to River City.

        {¶14}   The day after these interviews, Ridley tendered his resignation. The

Ohio Bureau of Investigations performed an audit of Judge West’s criminal cases

during Ridley’s tenure as bailiff and discovered no discrepancies. Ridley was later

indicted on three counts, including theft in office, bribery, and attempted bribery.

The theft-in-office and bribery counts involved Ridley’s acceptance of $100o on May

6, 2008, in exchange for information about the promise of the River City sentence;

the attempted-bribery count involved Ridley’s offer of straight probation for an

additional $1500.

        {¶15}   Upon his arrest on May 28, 2009, Ridley was interviewed by Brown

and Conners at police headquarters. In this recorded interview, Ridley stated that

Steele had given him $500 at the ball fields after he had given Steele information

about Johnson.      He also remembered that, on the day of Johnson’s sentencing, he

had motioned for Johnson to meet him outside the courtroom, and that, as they

walked down the hallway, he had told Johnson that he would be sentenced to River

City.

        {¶16}   Ridley was tried before a jury, and all three of his recorded interviews

were played at trial and admitted into evidence. Johnson testified that Steele had

arranged for him to meet Ridley at the Salway Park ball fields the night before his

scheduled but continued May 7, 2008, sentencing hearing, and that he had given

Ridley $1000 in exchange for a sentence to River City instead of prison.

        {¶17}   Johnson also testified that Ridley had offered him a sentence of

straight probation in exchange for $1500, and that they were to meet at 6:00 p.m. at

Salway Park on the evening before his May 21, 2008, sentencing hearing. When

Ridley did not appear as planned, Johnson called Steele and asked Steele to call



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Ridley because he had not appeared. Johnson testified that he then learned from

Steele that Steele was only able to reach Ridley’s voice mail. Johnson and Steele then

agreed that Johnson should meet with Ridley in the morning at the courtroom. By

the next morning, Johnson had decided to “take the River City [sentence]” and he

had met with Ridley outside Judge West’s courtroom before his sentencing.

       {¶18}    Johnson testified to his plea agreement on the federal drug-

conspiracy charges, which included leniency for his cooperation in Ridley’s

prosecution.    The court allowed the state to offer into evidence, over Ridley’s

objection, the recordings from Johnson’s cellular phone wiretap.           On cross-

examination, Johnson was thoroughly questioned about his plea agreement.

       {¶19}     Ridley testified at trial. He denied ever accepting any money from

Johnson, but he did admit that he had told Steele before the sentencing hearing that

Johnson would be sentenced to River City. Further, he claimed, in contradiction to

his prior statements to investigators, that he had only taken money from Steele as a

loan for his business of promoting shows, and that he had never taken any money

from Steele at the ball fields.

       {¶20}    The jury acquitted Ridley of theft in office and bribery, but it found

him guilty of attempted bribery. The trial court sentenced Ridley to 14 months’

incarceration. This appeal followed.

         Admission of Wiretapped Cellular Phone Conversations

       {¶21}    In his first assignment of error, Ridley challenges the trial court’s

admission of Johnson’s wiretapped cellular phone conversations that contained out-

of-court statements of Johnson and nontestifying declarants such as Ronald Steele.

       {¶22}    During Johnson’s testimony, the state offered into evidence

Johnson’s wiretapped cellular phone conversations that corroborated Johnson’s

testimony. In these conversations, Johnson described to various friends and family



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members how he had paid money to Ridley to influence his sentence on a criminal

drug-trafficking case pending before Judge West, how Ridley had offered him

straight probation for more money, and how he had set up a meeting with Ridley to

exchange the money. The recordings also contained Johnson’s conversations with

Steele while he was at the ball fields on May 20, 2008, waiting for Ridley to appear.

At one point, Johnson called Steele and said, “Hey, uh, he ain’t never showed.”

Steele replied, “Let me call his cell phone, man, and see.       Is there a game down

there? * * * Let me call you back.”

       {¶23}   Johnson then received a phone call from Steele, and the following

conversation was recorded:

       {¶24}   “Johnson: Hello.

       {¶25}   “[Steele]: His phone ain’t even on. So * * * you going to have to get

with him in the morning, you going to have to have your phone on.

       {¶26}   “Johnson: Right.

       {¶27}   “[Steele]:   You going to have to get with him in the morning, you

going to have to have your phone on.

       {¶28}   “Johnson: Yeah, y’all.

       {¶29}   “[Steele]: I am going to call him in the morning.

       {¶30}   “Johnson: I am going to go down there about eight.

       {¶31}   “[Steele]: Right, ‘cause he come in at 8:15.

       {¶32}   “Johnson: Okay.

       {¶33}   “[Steele]: So, yeah, I be down there, too, man.

       {¶34}   “Johnson: Okay.

       {¶35}   “[Steele]: All right.”




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶36}   The conversations were admitted over Ridley’s objection.         Ridley

objected only on hearsay grounds, contending that the state could not offer its own

witness’s prior statements.

       {¶37}   Now Ridley argues that the recorded statements were inadmissible

for two reasons:     (1) they contained hearsay that rendered their admission

inappropriate under the rules of evidence, and (2) they contained hearsay statements

of nontestifying declarants that rendered their admission in violation of his state and

federal constitutional right to confront witnesses against him.

                       1. Johnson’s Recorded Statements

       {¶38}   The state responds with three arguments to support the admissibility

of Johnson’s out-of-court statements on the recordings. First, the state contends

that Johnson’s statements were not hearsay because Johnson testified at trial. Next,

the state contends that Johnson’s out-of-court statements do not fall within the

definition of hearsay because they were not offered to prove their truth but to explain

the course of the investigation against Ridley and to show the actions Johnson took

after making and receiving the telephone calls. Finally, the state contends that the

recordings were also properly admitted under Evid.R. 801(D)(1)(b) to rebut an

express or implied charge of recent fabrication.

       {¶39}   First, we reject the state’s argument that the recordings of Johnson’s

out-of-court statements did not contain hearsay simply because Johnson testified at

trial. This assertion is contrary to Evid.R. 801(C), which defines hearsay as “a

statement, other than one made by the declarant while testifying at the trial or

hearing, offered into evidence to prove the truth of the matter asserted.”

       {¶40}   We also reject the state’s argument that the statements were not

hearsay because they were offered only to explain the course of the investigation

against Ridley and to explain Johnson’s actions after making and receiving the phone



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                       OHIO FIRST DISTRICT COURT OF APPEALS



calls.    Most of Johnson’s statements were clearly offered to bolster Johnson’s

credibility and to show a conspiracy to commit bribery between Johnson, Steele, and

Ridley.

          {¶41}   We now review whether the statements were admissible in light of the

hearsay exception found in Evid.R. 801(D)(1)(b), which applies to an out-of-court

statement of a witness that is consistent with his trial testimony and is offered to

rebut an express or implied charge against him of recent fabrication or improper

influence or motive. In this case, defense counsel, in opening statement, introduced

Johnson as “one of the most violent individuals you could possibly see in this

courtroom” and who “at this very moment in time” is “looking at getting life in

federal prison.”     Counsel continued by calling Johnson a “liar” and stating that

“[t]here is only one way for him to not get life in prison and that’s for him to

cooperate with the government.”

          {¶42}   Although this court has been reluctant to hold that counsel’s

allegations of fabrication or improper influence raised during opening argument can

satisfy the foundational requirement of Evid.R. 801(D)(1)(c),2 under these

circumstances we conclude that the foundational requirement was met.3                  Defense

counsel’s attack on Johnson’s testimony on the basis of a recent fabrication

motivated by a desire for leniency was direct and clear. Further, defense counsel’s

cross-examination of Johnson continued with this attack on Johnson’s credibility in

that it was based in part on his cooperation with investigation authorities; thus, at


2  See State v. Penland (1998), 132 Ohio App.3d 176, 182, 724 N.E.2d 841 (defense counsel’s
“vague” allusion to the veracity of the arresting officer concerning a small discrepancy in the
amount of cash in the defendant’s possession when he was arrested did not amount to an implicit
or express charge of recent fabrication that rendered the officer’s contemporaneously recorded
description of his pursuit of the defendant exempt from the definition of hearsay under the
exception found in Evid.R. 801[D][1][b]); State v. Abdur-Rahman (Oct. 23, 1996), 1st Dist. No. C-
950942 (holding that defense counsel’s comment in opening statement that a sex-offense victim
was “sad, confused and disturbed” did not alone constitute a charge of recent fabrication or
improper motive as contemplated by Evid.R. 801[D][1][b].)
3 See State v. Britta, 11th District No. 2009-L-017, 2010-Ohio-971, ¶93; Stadler v. Rankin (June
29, 1993), 10th Dist. No. 92AP-1269.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



worst, the state’s use of the recorded statements to rehabilitate Johnson’s credibility

was premature.

        {¶43}    In addition, some of the statements in the recordings were subject to

admission as the nonhearsay statements of a coconspirator. For example, Johnson’s

statements in his phone conversations with Steele about his meeting with Ridley

were admissible after the state had offered independent proof of the conspiracy

involving the three men, because the statements were made during the course of and

in furtherance of the bribery conspiracy.4 We hold that there was no reversible error

in the admission of Johnson’s recorded statements.5

                               2. Nontestifying Declarants

        {¶44}    The state argues that the statements of the unidentified friends and

family members were not offered for their truth but to provide context to Johnson’s

statements. Thus, the state contends that these statements were not hearsay and that

their admission did not implicate Confrontation Clause considerations.

        {¶45}    First, we note that Ridley did not object to these statements at trial,

and he therefore has waived all but plain error in their admission.6 Further, we agree

that the statements of the unidentified friends and family members were not offered

for their truth except for the statements of Steele, which were made during the

course of and in furtherance of the bribery conspiracy. These statements of Steele, a

non-testifying declarant, although offered for their truth, were statements of a co-

conspirator that did not constitute hearsay.7 Ridley has failed to demonstrate plain

error in the admission of any of these statements.

        {¶46}    Accordingly, we overrule the first assignment of error.




4 Evid.R. 801(D)(2)(e).
5 See State v. Jones, 1st Dist. No. C-090137, 2010-Ohio-4116, at ¶21.
6 See Crim.R. 52(B).
7 Evid.R. 801(D)(2)(e).




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                      OHIO FIRST DISTRICT COURT OF APPEALS



                 Admission of Ridley’s Recorded Interviews

       {¶47}    In his second assignment of error, Ridley argues that the trial court

erred by not redacting portions of his recorded interviews with law enforcement. He

challenges the admission of (1) his discussions with the assistant prosecutor about a

potential plea agreement during his second interview on October 29, 2008, including

the prosecutor’s opinion that Ridley had committed the offense of theft in office, and

(2) Ridley’s statements during all three interviews concerning his gambling habits.

We address each argument in turn.

                                  1. Plea Discussions

       {¶48}    On the morning of October 29, 2008, shortly after the conclusion of

Ridley’s interview with Brown and Conner, Ridley met with Brown and Hamilton

County Assistant Prosecutor Mark Piepmeier. According to Brown, Ridley had asked

to talk to a prosecutor. During this conversation, which lasted less than 15 minutes,

Ridley denied taking any money from Johnson, but he admitted that he had received

$200 from Steele after informing Steele that Johnson was going to be sentenced to

River City. Piepmeier indicated that Ridley was probably guilty of theft in office, and

the two discussed the possibility of Ridley avoiding the grand-jury process by

agreeing to plead guilty to a bill of information.

       {¶49}    Before trial, Ridley moved to exclude the entire interview with

Piepmeier on the basis that it contained statements made during plea discussions.

Evid.R. 410(A)(5), in relevant part, deems inadmissible against a defendant “[a]ny

statement made during the course of plea discussions in which counsel for the

prosecuting authority or for the defendant was a participant and that do not result in

a plea of guilty or that result in a plea of guilty later withdrawn.”

       {¶50}    Ridley also sought to have portions of his other two interviews with

law enforcement redacted on various grounds. The state argued that Ridley was not



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specific enough in identifying the challenged evidence. The trial court determined

that it would decide the issue at trial.

          {¶51}   At trial, Ridley again objected to the state’s playing of the recorded

interview with the prosecutor, and he cited specific passages. The trial court stated

that it would sustain Ridley’s objection to one passage where the prosecutor stated

that Ridley was guilty of committing theft in office, and the court instructed the jury

to ignore that statement when the recording was played to the jury.

          {¶52}   The state argued that the remaining portions of Ridley’s interview

with the prosecutor were admissible under Evid.R. 410(B)(1), which provides that

otherwise inadmissible statements made during plea discussions are admissible if

“another statement made in the course of the same plea or plea discussions had been

introduced and the statement should, in fairness, be considered contemporaneously

with it.” The trial court accepted the state’s argument that the exception of Evid.R.

410(B)(1) applied, but initially it had ruled that the interview was admissible because

Ridley had been given his Miranda rights.

          {¶53}   On appeal, the state seeks to change the factual basis for the issue by

arguing that the interview did not involve plea negotiations.

          {¶54}   The determination of whether a statement was made during plea

negotiations involves a mixed question of fact and law.8 The resolution of the facts

generally requires an evidentiary hearing. In this case, the state conceded in the trial

court that the interview involved plea discussions, so there was no need for an

evidentiary hearing concerning the statements that Ridley sought to exclude. Under

these circumstances, we hold that the state is foreclosed from arguing on appeal that

the statements were not made during plea discussions.




8   See State v. Frazier, 73 Ohio St.3d 323, 337, 1995-Ohio-235, 652 N.E.2d 1000.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶55}    Because the interview contained statements made during plea

discussions, the state could not offer the statements against Ridley unless the

exception of Evid.R. 410(B)(1) or 410(B)(2) applied, or unless Ridley had expressly

waived the exclusionary provisions of Evid.R. 410.9 Subdivision (B)(1) embodies the

“rule of completeness” found in Evid.R. 106, which addresses “Remainder of or

Related Writings or Recorded Statements.”10 That exception did not apply in this

case to require the introduction of the remainder of a recorded statement, where

Ridley had not offered any statements from the interview into evidence at trial.

       {¶56}    Subdivision (B)(2) of Evid.R. 410 can render an otherwise

inadmissible statement admissible in a criminal proceeding for perjury or making a

false statement, if the statement was made by the defendant under oath, on the

record, and in the presence of counsel. The exception of that subdivision did not

apply in this case either.

       {¶57}    Finally, there is no indication that Ridley had waived the application

of Evid.R. 410. His decision to engage in plea discussions with the prosecutor after

having earlier waived his Miranda rights did not amount to an express waiver of the

protections of Evid.R. 410. Because we have not found a basis for their admission,

we conclude that the trial court erroneously admitted the statements made during

Ridley’s plea discussions with the prosecutor.

       {¶58}    Although we have found error in the trial court’s admission of Ridley’s

interview with the prosecutor, this court will not disturb a conviction where an error

is harmless.11 Pursuant to our harmless-error analysis, the erroneous admission of

evidence in a criminal trial must be considered prejudicial unless this court can




9  See State v. Williams, 5th Dist. No. 08-CA-23, 2008-Ohio-6842, ¶17, citing United States v.
Mezzanatto (1995), 513 U.S. 196, 115 S.Ct. 797.
10 Staff Note to Amended Evid. R. 410, eff. July 1, 1991.
11 See Crim.R. 52(A).




                                             14
                      OHIO FIRST DISTRICT COURT OF APPEALS



declare, beyond a reasonable doubt, that the error was harmless, and unless there is

no reasonable possibility that the evidence may have contributed to the accused’s

conviction.12 “Whether [the] error was harmless beyond a reasonable doubt is not

simply an inquiry into the sufficiency of the remaining evidence.             Instead, the

question is whether there is a reasonable possibility that the evidence complained of

might have contributed to the conviction.”13

       {¶59}    After reviewing the entire record in this case, we are convinced that

there is no reasonable possibility that the erroneous admission of the evidence

concerning the plea discussions might have contributed to Ridley’s conviction for

attempted bribery.

       {¶60}    The    plea   discussions    involved   Ridley’s   conduct     of   “selling

information”—that Johnson would be sentenced to River City—that Ridley had

learned because he was a bailiff. Based on the indictment and the state’s theory of

guilt pursued at trial, those facts pertained to the theft-in-office offense and arguably

the bribery offense, but Ridley was acquitted on both of those counts. Ridley denied

ever taking any money from Johnson.

       {¶61}    The attempted-bribery conviction was based on different facts:

Ridley’s solicitation of $1500 from Johnson in exchange for the sentence involving

only “straight probation.” And that conviction, as even Ridley notes, “rests squarely

upon the testimony of Charles Johnson.” Johnson’s testimony was corroborated by

ample admissible evidence. This evidence included the recordings of Johnson’s

wiretapped cellular phone conversations; the testimony of the DEA agent about both

Johnson’s and Ridley’s appearances at Salway Park the evening before Johnson’s

final sentencing hearing; Officer Putnik’s testimony that he observed Ridley


12 State v. Bayless (1976), 48 Ohio St.2d 73, 106, 357 N.E.2d 1035, vacated in part on other
grounds (1978), 438 U.S. 911, 98 S.Ct. 3135.
13 State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶78.




                                            15
                      OHIO FIRST DISTRICT COURT OF APPEALS



conversing with Johnson outside Judge West’s courtroom at the final sentencing

hearing; testimony from Judge West that Ridley had the opportunity to change the

judge’s sentence before it had been journalized; and Ridley’s testimony at trial that

he had conversed with Johnson outside Judge West’s courtroom at Johnson’s

sentencing hearing. The state also provided a strong motive for Ridley’s commission

of the crime of attempted bribery by pointing out his gambling problems. This

evidence was presented most effectively during Ridley’s cross-examination.

       {¶62}    Further, with respect to Ridley’s specific challenge to Piepmeier’s

statement during the recorded interview that Ridley had committed the offense of

theft in office, we note that the court sustained Ridley’s objection to that opinion and

told the jury not to consider it. We presume that juries follow the trial court’s

instructions.14 We apply that presumption here, even though Piepmeier’s opinion

was not redacted from the recording of the interview that was sent to the jury room

for deliberations, where the jury acquitted Ridley of the theft-in-office offense.

       {¶63}    Under these circumstances, we conclude that there is no reasonable

possibility that the evidence erroneously admitted may have contributed to Ridley’s

conviction for attempted bribery, and therefore, we hold that the trial court’s error in

admitting the transcript of Ridley’s plea discussions with the prosecutor was

harmless beyond a reasonable doubt.

                                2. Gambling Habits

       {¶64}    Finally, Ridley contends that the trial court erred by admitting over

his objection portions of his interviews that referred to his gambling habits. Ridley

characterizes this evidence as other-act testimony that was prohibited by Evid.R.

404(B). At trial, the state argued, and the court agreed, that the evidence of Ridley’s



14State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1031, ¶86, citing State v.
Fears, 86 Ohio St.3d 329, 334, 1999-Ohio-111, 715 N.E.2d 136.


                                            16
                         OHIO FIRST DISTRICT COURT OF APPEALS



gambling habits was admissible to show motive, a purpose expressly recognized in

Evid.R. 404(B).

        {¶65}    We agree with the trial court and the state that evidence of Ridley’s

gambling habits, which reflected Ridley’s desperate need for money, demonstrated

Ridley’s motive to commit the offenses that he was charged with—theft in office,

bribery, and attempted bribery.15 Thus, the evidence was admissible for this purpose

under Evid.R. 404(B).

        {¶66}    In conclusion, we hold that the trial court erred only by admitting into

evidence Ridley’s recorded interview involving the plea discussions. But because we

have determined that this error was harmless error, we overrule the second

assignment of error.

                             Sufficiency of the Evidence

        {¶67}    In his third assignment of error, Ridley contends that his conviction

for attempted bribery was not supported by sufficient evidence. The bribery statute

provides in relevant part that “[n]o person, either before or after he is * * * employed

* * * as a public servant * * * shall knowingly solicit or accept for himself or another

person any valuable thing or valuable benefit to corrupt or improperly influence him

or another public servant or party official with respect to the discharge of his or the

other public servant’s or party official’s duty.”16

        {¶68}    The attempt statute provides, in relevant part, that “[n]o person,

purposely or knowingly * * * shall engage in conduct that, if successful, would

constitute or result in the offense.”17 Factual or legal impossibility is not a defense to




15 See Evid.R. 404(B).
16 R.C. 2921.02(B).
17 R.C. 2923.02(A).




                                             17
                       OHIO FIRST DISTRICT COURT OF APPEALS



an attempt charge if the “offense could have been committed had the attendant

circumstances been as the actor believed them to be.”18

        {¶69}    Ridley’s sufficiency argument focuses on factual impossibility as a

defense in this case. He contends that because it was undisputed at trial that he

could not influence the sentence chosen by Judge West, the conviction cannot stand.

But Ridley’s argument ignores evidence that Ridley could have altered the sentence

chosen by Judge West by changing it without his knowledge. Thus, the impossibility

defense did not preclude his conviction.

        {¶70}    Viewing the evidence in the light most favorable to the state, as we are

required to do, we hold that a reasonable trier of fact could have found all the

essential elements of attempted bribery beyond a reasonable doubt.19 Accordingly,

we overrule the third assignment of error.

                                Weight of the Evidence

        {¶71}    In his fourth assignment of error, Ridley argues that his conviction

was against the manifest weight of the evidence. But our review of the record fails to

persuade us that 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.20 The

jury believed Johnson, despite Ridley’s repeated attempts to discredit him. Johnson’s

credibility was greatly bolstered by the wiretap recordings of his cellular phone

conversations concerning the bribery agreement and by the testimony of the DEA agent

about the arrival of both Johnson and Ridley at Salway Park on May 20, 2008, shortly

after the arranged 6:00 p.m. meeting for the exchange of money. We note that the weight




18 R.C. 2923.02(B).
19 State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus,
following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781.
20 See Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211; see, also, State v. Thompkins, 78 Ohio
St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.


                                                18
                       OHIO FIRST DISTRICT COURT OF APPEALS



to be given the evidence and the credibility of the witnesses were primarily for the trier of

fact to determine.21 Accordingly, we overrule the fourth assignment of error.

                                    Change of Venue

        {¶72}    In his fifth assignment of error, Ridley contends that the trial court’s

denial of his motion for a change of venue deprived him of his rights to due process

and a fair trial.22 We disagree.

        {¶73}    A change of venue is appropriate only when “it appears that a fair and

impartial trial cannot be held in the court in which the action is pending.”23 We

review the denial of motion for a change of venue under an abuse-of-discretion

standard.24

        {¶74}    Ridley argues that he could not receive a fair and impartial trial in

Hamilton County due to negative pretrial publicity and because of an “inherent

conflict of interest” that he claimed arose when he was “tried at the scene of the

alleged crime,” by the same people he “supposedly betrayed.”

                                   1. Pretrial Publicity

        {¶75}    Ridley attached to his motion for a change of venue three news stories

concerning the case that had been published months before the trial. Generally,

prejudice from pretrial publicity will not be presumed, and the fact that prospective

jurors have been exposed to pretrial publicity does not, alone, establish prejudice.25

“ ‘[A] careful and searching voir dire’ ” is the best method to determine whether




21 See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus.
22  The record does not include an entry of the trial court denying the motion. But the transcript
of the proceedings indicates that the trial court was aware of the motion, and under a
presumption of regularity, we presume the trial court overruled it sub silentio when it empaneled
the jury.
23 Crim.R. 18(B). See, also, R.C. 2901.12(K).
24 State v. Maurer (1984), 15 Ohio St.3d 239, 250-251, 473 N.E.2d 768; State v. Booher (1988),
54 Ohio App.3d 1, 13, 560 N.E.2d 786.
25 State v. White, 82 Ohio St.3d 16, 21, 1998-Ohio-363, 693 N.E.2d 772.




                                               19
                       OHIO FIRST DISTRICT COURT OF APPEALS



pretrial publicity has prevented the selection of an impartial jury from the

cummunity.26

       {¶76}    In this case, the voir dire process failed to reveal that pretrial publicity

would prevent Ridley from obtaining a fair and impartial jury in Hamilton County.

In fact, the voir dire transcript indicates that none of the jurors had heard about the

case and that each had indicated an ability to be fair and impartial.

                                2. Conflict of Interest

       {¶77}    Ridley argues also that an “inherent conflict of interest” existed that

prevented a fair trial in this county, because the case involved the local court system.

But Ridley’s argument is too speculative under the facts of this case to render the

trial court’s denial of the motion an abuse of discretion. We note that there is

absolutely no probative evidence in the record demonstrating a factual basis to doubt

the impartiality or fairness of the trial.

       {¶78}    Accordingly, we overrule the fifth assignment of error.

                                       Sentencing

       {¶79}    In his final assignment of error, Ridley argues that the trial court

erred by sentencing him to a 14-month prison term. Specifically, Ridley argues that

the sentence is unreasonable, disparate, and excessive.                     In his sentencing

memorandum, he had requested community control because he had no prior record;

he had lived a productive life and had volunteered in his community prior to this

conviction; and he had been found guilty of a nonviolent felony of the fourth degree.

       {¶80}    We conduct a two-part review of Ridley’s sentence of imprisonment.27

First, we must determine whether the sentence was contrary to law.28 Then, if the




26 Id., quoting State v. Bayless, 48 ohio St.2d at 98.
27See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
28 See id. at ¶14.




                                              20
                           OHIO FIRST DISTRICT COURT OF APPEALS



sentence was not contrary to law, we must review it to determine whether the trial

court abused its discretion in imposing it.29

          {¶81}     Here, the sentence imposed was neither contrary to law nor an abuse

of discretion. The sentence for attempted bribery, a fourth-degree felony,30 was

within the range provided by statute for the offense.31 The trial court stated that it

had considered all the relevant sentencing factors, including the mitigating ones. But

the court noted that when Ridley had addressed the court, he was not remorseful,

and that Ridley had lessened public confidence in the entire system of justice. The

trial court was well acquainted with the facts of the offense, having presided over the

jury trial.      And Ridley failed to establish that his sentence was disparate from

sentences “imposed for similar crimes committed by similar offenders.”32

          {¶82}     After our review of Ridley’s sentence, we conclude that the

assignment of error is meritless. Accordingly, we overrule the sixth assignment of

error, and we affirm the trial court’s judgment.

                                                                         Judgment affirmed.



HILDEBRANDT, P.J., and SUNDERMANN, J., concur.



Please Note:

           The court has recorded its own entry on the date of the release of this decision.




29   See id. at ¶17.
30   See R.C. 2923.02(E)(1); R.C. 2921.02(E)
31   See R.C. 2929.14(A)(4); see, also, Kalish, supra at ¶11-12.
32   See R.C. 2929.11(B).


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