[Cite as State v. Barnett, 2013-Ohio-2496.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 8-12-09

        v.

ROBBY B. BARNETT,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                            Trial Court No. CR-08-0157

                                       Judgment Affirmed

                              Date of Decision: June 17, 2013




APPEARANCES:

        Valerie Kunze for Appellant

        William T. Goslee and Eric C. Stewart for Appellee
Case No. 8-12-09


ROGERS, J.

       {¶1} Defendant-Appellant, Robby B. Barnett, appeals the judgment of the

Court of Common Pleas of Logan County convicting him of illegal possession of

chemicals for the manufacture of drugs, illegal manufacture of drugs, and

possession of drugs.      On appeal, Barnett argues that the trial court erred by

admitting impermissible evidence regarding the death of Jeff Aldrich (“Jeff”) in an

unrelated trailer fire.    Barnett also claims that he was denied the effective

assistance of counsel. For the reasons that follow, we affirm the trial court’s

judgment.

       {¶2} On September 13, 2011, the Logan County Grand Jury indicted

Barnett on three counts: (1) Count I - illegal assembly or possession of chemicals

for the manufacture of drugs in violation of R.C. 2925.041, a felony of the third

degree; (2) Count II - illegal manufacture of drugs in violation of R.C. 2925.04, a

felony of the second degree; and (3) Count III - possession of drugs in violation of

R.C. 2925.11, a felony of the fifth degree.

       {¶3} The trial of this matter commenced on June 28, 2012 and concluded

the next day.

       {¶4} In its opening statement, the State referred to a fire in Auglaize

County at Jeff’s trailer and how it led law enforcement to investigate Barnett’s

possible role in the manufacture of methamphetamine.           However, the State


                                         -2-
Case No. 8-12-09


explicitly cautioned the jurors as follows regarding the Auglaize County fire: “I

would like to caution you, you only have to consider what’s going on here in

Logan County.”          Trial Tr., p. 65.        Barnett’s counsel likewise referred to the

Auglaize County fire in his opening statement. In doing so, Barnett’s counsel also

included a caveat for the jurors: “I would like to state we’re not here for a death

case. That stuff happened in Auglaize County. While tragic, that’s not what

you’re here for.”1 Trial Tr., p. 72.

           {¶5} Sergeant Doug Burke with the Auglaize County Sheriff was the first

witness called to the stand. He indicated that on May 4, 2011, he responded to a

fire in a trailer park near Wapakoneta. Sergeant Burke testified that the trailer was

owned by Jeff, who died in the fire. According to Sergeant Burke, the fire marshal

could not determine the cause of the fire and after the investigation was finished,

the authorities released the scene and allowed Jeff’s family members to access the

trailer. Shortly after this, Jeff’s sons, Jimmy (“Jimmy”) and Josh (“Josh”) Aldrich,

went to Sergeant Burke and said that they had found suspicious materials at the

trailer.

           {¶6} Sergeant Burke testified that the materials were consistent with the

manufacture of methamphetamine, which led the police to question Corey Reed,

Barnett’s nephew.          Reed then gave the police information that led them to

1
  There is some indication in the record that the State pursued a separate indictment against Barnett in
Auglaize County. However, the record before us does not include any filings that indicate the disposition
of a Auglaize County prosecution.

                                                  -3-
Case No. 8-12-09


investigate Barnett.       Sergeant Burke subsequently made initial contact with

Barnett, who admitted that he had been at Jeff’s trailer the night of the fire to

deliver food. Sergeant Burke also testified that during the initial contact, he

observed burn marks on Barnett’s hands.

       {¶7} On cross-examination, the following relevant exchange occurred:

       Q: And they [Jeff’s family members] already had an opinion as to
       how [the fire started] when they arrived [at the Sheriff’s office], did
       they not?

       A:    They?

       Q:    They thought they knew who did it and what the cause was.

       A:    Not initially, no. Trial Tr., p. 100.

Sergeant Burke also acknowledged that Jeff’s family members essentially had free

reign over the trailer and scene of the fire after the fire marshal released it.

Further, he admitted that there was no police supervision of the family members’

activities at the scene.

       {¶8} The State subsequently called Jimmy to the stand. He testified that he

was friends with Barnett and worked for Barnett’s carpet cleaning business

periodically for about 10 years. Jimmy said that he contacted the Auglaize County

Sheriff because “we had noticed that there was some odd looking things in the

house that didn’t seem right. * * * [I]t looked like there was some type of illegal

activity going on * * *.” Trial Tr., p. 140. According to Jimmy, Barnett asked


                                           -4-
Case No. 8-12-09


several members of Jeff’s family, including Jeff himself, to purchase Sudafed for

him.   Jimmy also indicated that Barnett had previously provided him with

methamphetamine.

       {¶9} Jimmy said that there were two fires in Barnett’s residence and that

one time, the fire severely burned Barnett’s face.       The following exchange

occurred regarding this fire:

       Q:   Did you ask [Barnett] what had happened?

       A: Yeah. And he quoted, “yeah, the s[---] took off and blew up in
       my face.”

       Q:   What did you take that to mean?

       A: That he was cooking meth and it blew up in his face. Trial Tr.,
       p. 143-44.

       {¶10} On cross-examination, Barnett’s trial counsel elicited testimony

regarding Jimmy’s beliefs about the cause of the fire at Jeff’s trailer.       The

pertinent colloquy proceeded as follows:

       Q: Okay. Now, I think part of what’s going on is you believe that
       [Barnett] had something to do with your father’s death; is that true?

       A:   Absolutely.

       Q: Okay. And you knew that the Fire Marshall had stopped his
       investigation, didn’t see it that way; is that true?

       A:   I don’t know.




                                        -5-
Case No. 8-12-09


       Q: You weren’t happy with what the Fire Marshall was saying,
       you decided that you needed to contact the authorities yourself, you
       and your brother and your sister?

       A:   No, I don’t believe that’s how that went. Trial Tr., p. 47-48.

       {¶11} Josh also testified. Like his brother, Josh was a periodic employee of

Barnett’s carpet cleaning business. He testified that as part of his duties, he often

had to buy Coleman camping fuel for Barnett, which he said was odd because

Barnett did not camp. Josh also indicated that he purchased Sudafed for Barnett

and saw him smoke methamphetamine.

       {¶12} Josh testified that when he went to the trailer after the fire, he saw

“several possessions of [Barnett’s] throughout the house, a lot of his chemicals

and the things that he uses.” Trial Tr., p. 152. Finding these items “tipped [him]

off that, you know, [Barnett] was definitely involved in some fashion with the

fire.” Trial Tr., p. 153. After discovering these materials, Josh gathered them and

provided them to the Auglaize County Sheriff.

       {¶13} On cross-examination, Josh testified as follows regarding his

personal anger towards Barnett:

       Q: Okay. So did it seem – it seemed weird to you, did it not, that
       you couldn’t get ahold of [Barnett, Jeff’s] close friend when you
       were trying to get ahold of him and tell him that your father had
       passed.

       A:   Absolutely.



                                         -6-
Case No. 8-12-09


      Q: And it had to be very frustrating, was it not, that you couldn’t
      get ahold of him?

      A:   Yeah, it was very frustrating.

      Q: And, in fact, you at some point, maybe because of the way he
      acted or interpreted what you were saying to him, you might have
      gotten angry that he wasn’t around; is that true?

      A:   I was – I was a little irritated, yes. Trial Tr., p. 163.

To rehabilitate Josh, the State elicited testimony on redirect examination as

follows:

      Q:   What do you believe [Barnett] did [to harm the relationship]?

      A: I believe he was basically the instigator of what happened at
      my father’s house that night.

      Q: [Barnett’s counsel] wants to imply that you were trying to get
      back at him for that. Have you done anything, plant any evidence, to
      try and get back at [Barnett]?

      A:   No, sir. Trial Tr., p. 165.

      {¶14} Custodians of records for Wal-Mart, CVS, and Rite Aid testified as

to Barnett’s purchases of Sudafed, which contains pseudoephedrine, in stores

throughout Ohio and Indiana. According to the custodians’ testimonies and the

documents they provided, Barnett purchased approximately 300 tablets over a

two-year span in 2010 and 2011.             On cross-examination, the custodians

acknowledged that Barnett’s purchases did not cause any of their stores to flag

Barnett as barred from buying additional pseudoephedrine-containing drugs.


                                         -7-
Case No. 8-12-09


       {¶15} Investigator Kim Reiher of the Grand Lake Drug Task Force testified

regarding the execution of a search warrant on May 17, 2011 at Barnett’s

residence in Logan County. She indicated that she was present when officers took

pictures of Barnett’s burnt hands and went with him to the hospital, where blood

and urine samples were collected from him. As part of Investigator Reiher’s

testimony, the State introduced three pictures of Barnett’s burnt hands into

evidence. On cross-examination, Investigator Reiher indicated that the purpose of

taking the pictures was to possibly pursue a case in Auglaize County.

       {¶16} Deputy Michael Voorhees of the Auglaize County Sheriff’s Office

also testified as to the police’s search of Barnett’s residence in Logan County. He

indicated that the officers found black soot in the bathroom of the residence which

was consistent with Jimmy’s testimony that there were previous fires at Barnett’s

residence. Deputy Voorhees additionally found the following: (1) a Wal-Mart

receipt showing the purchase of Coleman camping fuel; (2) a paper plate in the

oven that had a “green vegetative” material on it, trial tr., p. 173; (3) respirators;

(4) a “spent fire extinguisher,” trial tr., p. 174; (5) rubber gloves with black soot on

them; (6) mason jars and a funnel that were found under the bathroom sink; (7) a

partially melted mouthwash bottle; (8) coffee filters with white powder on them,

which was found to be pseudoephedrine after chemical testing; (9) lye drain

cleaner; (10) a paper plate with aluminum foil and straw that had white power on


                                          -8-
Case No. 8-12-09


it, which was found to be methamphetamine residue after chemical testing; and

(11) aluminum foil with burn marks.

        {¶17} On cross-examination, Deputy Voorhees testified that all of the

discovered materials could be used for legal purposes, except for the

methamphetamine residue on the paper plate, and that many people have them in

their residences.   However, on redirect examination, he indicated that it was

unusual that the drain cleaner was found in Barnett’s closet. Deputy Voorhees

also testified that pseudoephedrine is not usually found in crushed white power

form.

        {¶18} Forensic scientists Megan Snyder and Dr. Travis Worst of the Ohio

Bureau of Criminal Identification and Investigation (“BCI & I”) testified regarding

the tests that they performed on the white power collected from Barnett’s

residence.    They found that the powder contained pseudoephedrine and

methamphetamine residue.

        {¶19} The State’s last witness was Special Agent Scott Duff of BCI & I.

He was offered as an expert on the manufacture of methamphetamine and

discussed at length the “shake and bake method” of “cooking meth.” Trial Tr., p.

244. The process uses pseudoephedrine, which is derived from Sudafed, and

Coleman camping fuel as an accelerant. According to Agent Duff, the process is

highly volatile and fires or explosions occur quite frequently. The manufacture of


                                        -9-
Case No. 8-12-09


methamphetamine also involves the use of mason jars, funnels, aluminum foil, and

coffee filters.   Based on the items discovered at Barnett’s residence and his

knowledge of the typical cooking process, Agent Duff opined that they were being

used to manufacture methamphetamine.

       {¶20} On cross-examination, Agent Duff acknowledged that the discovery

of the items did not necessarily indicate that the methamphetamine was

manufactured at Barnett’s residence. He also admitted that it was possible that

someone besides Barnett could have placed the materials at the residence.

       {¶21} After Agent Duff’s testimony, the State rested. Barnett offered the

testimony of Robby Strickland, one of his house guests, who indicated that he did

not suspect that Barnett was manufacturing methamphetamine at his Logan

County residence. Barnett offered no other witnesses and rested.

       {¶22} The jury found Barnett guilty on all three counts alleged in the

indictment. The trial court merged Barnett’s convictions on Counts I and II for the

purposes of sentencing and the State elected to proceed on Count II.

Consequently, on August 13, 2012, the trial court sentenced Barnett to five years

on Count II and 12 months on Count III with the sentences ordered to be served

concurrently.

       {¶23} Barnett timely appealed his convictions, presenting the following

assignments of error for our review.


                                       -10-
Case No. 8-12-09


                           Assignment of Error No. I

      THE TRIAL COURT ERRED WHEN IT ADMITTED
      IRRELEVANT AND PREJUDICIAL EVIDENCE ABOUT
      THE DEATH OF MR. ALDRICH AND THUS DENIED
      ROBBY BARNETT HIS RIGHTS TO DUE PROCESS AND A
      FAIR TRIAL. OHIO EVIDENCE RULE 401, 403(A), 404(B),
      R.C. 2945.59, FIFTH AND FOURTEENTH AMENDMENTS
      TO THE UNITED STATES CONSTITUTION, AND SECTION
      16, ARTICLE I OF THE OHIO CONSTITUTION.

                           Assignment of Error No. II

      TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
      OF COUNSEL, IN VIOLATION OF THE SIXTH
      AMENDMENT TO THE UNITED STATES CONSTITUTION
      AND SECTION 10, ARTICLE I OF THE OHIO
      CONSTITUTION. STATE V. WASHINGTON, 466 U.S. 668, 104
      S.CT. 2052 (1984).

                            Assignment of Error No. I

      {¶24} In his first assignment of error, Barnett contends that his convictions

should be reversed because the evidence of the fire that killed Jeff was improperly

admitted under Evid.R. 401, 402, 403(A), and 404(B) as well as R.C. 2945.59.

We disagree.

                               Standard of Review

      {¶25} Barnett failed to object to any of the challenged evidence at trial.

Accordingly, he has waived all but plain error. State v. Bump, 3d Dist. No. 8-12-

04, 2013-Ohio-1006, ¶ 81. To have plain error under Crim.R. 52(B), the error

must be an “obvious” defect in the trial proceedings that affected the defendant’s


                                       -11-
Case No. 8-12-09


“substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Plain error is to

be used “with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” Id. Further, plain error only exists

where “but for the error, the outcome of the trial would clearly have been

otherwise.” State v. Biros, 78 Ohio St.3d 426, 431 (1997).

                      Relevance Under Evid.R. 401 and 402

       {¶26} Evid.R. 402 provides that relevant evidence is generally admissible

unless the Rules of Evidence or other law provides to the contrary. Evid.R. 401

defines relevant evidence as “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” These provisions produce

a low threshold of admissibility, which “reflect[s] the policy favoring the

admission of relevant evidence for the trier of fact to weigh.” State v. Kehoe, 133

Ohio App.3d 591, 606 (12th Dist. 1999).

           Other Acts Evidence Under R.C. 2945.59 and Evid.R. 404(B)

       {¶27} Satisfaction of Evid.R. 401 and 402 does not end our inquiry,

however, since both R.C. 2945.59 and Evid.R. 404(B) operate to bar otherwise

relevant evidence. See State v. Grubb, 111 Ohio App.3d 277, 280 (2d Dist. 1996)

(“Character evidence is generally excluded not because it lacks relevancy, but

because its probative value is substantially outweighed by the danger of unfair


                                        -12-
Case No. 8-12-09


prejudice.”); State v. Bell, 145 Ohio Misc.2d 55, 2008-Ohio-592, ¶ 23 (C.P.)

(“[Evid.R. 404(B)] deal[s] with the exclusion of otherwise relevant evidence.”).

These provisions generally proscribe the admission of evidence of other bad acts

for the purpose of showing the defendant’s propensity to commit crimes or that he

acted in conformity with negative character traits. See State v. Jaimson, 49 Ohio

St.3d 182, 183 (1990) (“Under longstanding principles of Anglo-American

jurisprudence, an accused can not be convicted of one crime by proving he

committed other crimes or is a bad person.”). However, both R.C. 2945.59 and

Evid.R. 404(B) allow for various contexts in which other acts evidence is

admissible.

      {¶28} R.C. 2945.59 allows such evidence if offered to show the defendant’s

“motive or intent, the absence of mistake or accident * * *, [or] the defendant’s

scheme, plan, or system in doing an act * * *.” Evid.R. 404(B) similarly provides

for other acts evidence to prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”      See also State v.

Darrington, 6th Dist. No. WD-07-019, 2008-Ohio-3269, ¶ 13 (“When other acts

demonstrate criminal conduct, they should be so blended or connected with the act

on trial that proof of one incidentally * * * explains the circumstances [of the

charged crimes].”), citing State v. Roe, 41 Ohio St.3d 18, 23-24 (1989). The

Supreme Court of Ohio has harmonized its interpretation of R.C. 2945.59 and


                                      -13-
Case No. 8-12-09


Evid.R. 404(B), State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, syllabus,

and has noted that Evid.R. 404(B) “afford broad discretion to the trial judge

regarding the admission of other acts evidence,” id. at ¶ 17. Still, both the statute

and the rule “must be strictly construed against admissibility.”            State v.

Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 67 (12th Dist.), citing

State v. Broom, 40 Ohio St.3d 277, 281-82 (1988).

                      Unfair Prejudice Under Evid.R. 403(A)

       {¶29} Even if evidence crosses the low threshold of relevance and the

dictates of R.C. 2945.59 and Evid.R. 404(B), the evidence may still be

inadmissible where “its probative value is substantially outweighed by the danger

of unfair prejudice * * *.” Evid.R. 403(A). In Oberlin v. Akron Gen. Med. Ctr.,

91 Ohio St.3d 169 (2001), the Supreme Court of Ohio outlined the contours of

“unfair prejudice” as follows:

       “Exclusion on the basis of unfair prejudice involves more than a
       balance of mere prejudice. If unfair prejudice simply meant
       prejudice, anything adverse to a litigant’s case would be excludable
       under Rule 403. Emphasis must be placed on the word ‘unfair.’
       Unfair prejudice is that quality of evidence which might result in an
       improper basis for a jury decision. Consequently, if the evidence
       arouses the jury’s emotional sympathies, evokes a sense of horror, or
       appeals to an instinct to punish, the evidence may be unfairly
       prejudicial. Usually, although not always, unfairly prejudicial
       evidence appeals to the jury’s emotions rather than intellect.” Id. at
       172, quoting Weissenberger, Ohio Evidence, Section 403.3, 85-87
       (2000).



                                        -14-
Case No. 8-12-09


                                     Challenged Evidence

        {¶30} Barnett complains of the following evidence regarding the fire that

killed Jeff: (1) Sergeant Burke’s testimony regarding the investigation of the fire;

(2) Reiher’s identification of the pictures showing Barnett’s burnt hands; and (3)

Jimmy’s and Josh’s testimony regarding the fire.2 We now turn to addressing each

of these items.

                         Sergeant Burke’s and Reiher’s Testimony

        {¶31} Sergeant Burke testified regarding his investigation of the fire that

killed Jeff and how it led the police to focus on Barnett as a possible manufacturer

and distributor of methamphetamine.                Meanwhile, in Reiher’s testimony, she

identified three pictures showing Barnett’s burnt hands that were admitted into

evidence. On cross-examination, Reiher indicated that the pictures were taken for

the purpose of pursuing a case in Auglaize County.

        {¶32} In applying the low threshold of Evid.R. 401 and 402, Ohio courts

have previously found that evidence relating to the police’s investigation of a

criminal defendant is relevant and admissible. E.g., State v. Trent, 5th Dist. No.

2004CA00360, 2005-Ohio-5793, ¶ 18 (implicitly finding that police officer’s

testimony was admissible since it “was offered merely to explain police
2
   Barnett also complains of the prosecutor’s references to the fire during his opening and closing
statements. However, such references were argument, not evidence. State v. Clay, 181 Ohio App.3d 563,
20009-Ohio-1235, ¶ 45 (8th Dist.). Consequently, Barnett cannot complain of the references’ purported
inadmissibility. To challenge these references, Barnett should have brought a prosecutorial misconduct
challenge. Since he has not done so, we are compelled to disregard Barnett’s identification of the
prosecutor’s references to the fire as impermissible evidence. App.R. 12(A)(2).

                                                -15-
Case No. 8-12-09


investigative behavior”); State v. Bailey, 8th Dist. No. 81498, 2003-Ohio-1834, ¶

27-29 (implicitly finding that police officer’s testimony regarding the investigation

of the defendant was relevant since it “was necessary to explain” events leading to

the defendant’s arrest); State v. Payne, 8th Dist. No. 66214 (Oct. 20, 1994) (“Such

background information [regarding the police’s investigation] provides the jury

with a view toward the setting of the case and is relevant [to the charged

crimes].”). Ohio courts have also found that such evidence overcomes the bars of

R.C. 2945.59 and Evid.R. 403 and 404(B). E.g., Trent at ¶ 18; Bailey at ¶ 27-29.

However, courts have also recognized that providing extensive testimony

regarding a prosecution’s background may be excluded where it is unfairly

prejudicial or otherwise contrary to the Rules of Evidence. See State v. Nichols,

10th Dist. No. 97APA09-1162 (May 5, 1998) (“Although a certain amount of

background information is generally admissible in order to give the jury the

‘setting’ of the case, * * * the evidence offered in this matter far exceeded that

threshold.”).

       {¶33} Some of the evidence regarding the investigation of the Auglaize

County fire may have been admissible since it identified the background of the

indictment and the evidence that led police to investigate Barnett in Logan

County. But, Sergeant Burke’s and Reiher’s testimony focused extensively on

Barnett’s activities in Auglaize County and went beyond the scope of what was


                                        -16-
Case No. 8-12-09


permissible background information. Since the indictment charged Barnett with

violating Ohio law in Logan County, the references to the Auglaize County fire

were of minimal relevance.      Nevertheless, the State elicited testimony that

seemingly implicated Barnett as being involved in setting the fire and causing

Jeff’s death. Such evidence was calculated to strike at the jurors’ “instinct for

punishment,” Oberlin, 91 Ohio St.3d at 172, and it is plainly the type of character

evidence that the Rules of Evidence are meant to exclude in prosecutions for mere

drug offenses, compare State v. Satta, 3d Dist. No. 9-01-38, 2002-Ohio-5049, ¶ 39

(finding that the admission of evidence indicating that the defendant used illegal

drugs was outside confines of Evid.R. 404(B) since the defendant was charged

with aggravated murder, burglary, kidnapping, and rape).

      {¶34} As such, the evidence of Barnett’s potential role in the Auglaize

County fire was impermissible other acts evidence.         Further, the evidence’s

minimal relevance was easily outweighed by the unfair prejudice that inherently

comes when the State elicits testimony that implicates a defendant in an unrelated,

uncharged death. Consequently, the State should not have offered the evidence

and it should not have been admitted.

      {¶35} Despite the inadmissibility of Sergeant Burke’s and Reiher’s

testimony regarding the Auglaize County fire, we find that its admission was not

plain error. The record reveals that the State presented overwhelming evidence to


                                        -17-
Case No. 8-12-09


establish the elements of the crimes charged in the indictment. The State elicited

testimony regarding Barnett’s purchases of large quantities of pseudoephedrine-

containing medications. It also elicited testimony from Jimmy and Josh that

Barnett asked them, and other members of their family, to purchase

pseudoephedrine-containing medications.

        {¶36} Even more critically, the State offered testimony from investigating

police officers and documentary evidence regarding the materials seized from

Barnett’s residence. The officers found Coleman camping fuel, lye, respirators,

plastic bottles with tubes coming out of them, coffee filters with white powder on

them, and aluminum foil with burn marks. The forensic scientists from BCI & I

testified that the white power was pseudoephedrine and that the aluminum foil

contained methamphetamine residue. Agent Duff also provided expert testimony

regarding the methamphetamine manufacturing process and opined that the

materials found in Barnett’s residence were being used for such manufacturing.3

        {¶37} The above evidence was more than sufficient for the jury to find

Barnett guilty of the crimes charged in the indictment. As a result, the admission

of Sergeant Burke’s testimony, the pictures of Barnett’s hands, and Reiher’s




3
  The only contradictions of this evidence were (1) the acknowledgments by the State that the mere
possession of the materials seized from Barnett’s residence is not criminal; and (2) the meager testimony of
Strickland.

                                                   -18-
Case No. 8-12-09


testimony about them did not affect Barnett’s “substantial rights.”4 See Satta,

2002-Ohio-5049, at ¶ 39 (finding that improper admission of other acts evidence

was not plain error since there was “overwhelming physical evidence” to support

guilty verdicts on charged crimes); State v. Newcomb, 3d Dist. No. 8-01-07 (Nov.

27, 2001) (finding that admission of other acts evidence was harmless when “a

review of the record reveals substantial other evidence supporting the guilty

verdict”).

                                 Jimmy’s and Josh’s Testimony

        {¶38} Jimmy and Josh essentially testified that they believed Barnett was

involved in the Auglaize County fire and the death of their father, Jeff. This

evidence was improper under R.C. 2945.59 and Evid.R. 403(A) and 404(B) for the

same reasons that Sergeant Burke’s and Reiher’s testimony was inadmissible.

Nevertheless, despite the impropriety of the evidence, we find that its admission

was invited error. It is axiomatic that “a criminal defendant may not make an

affirmative, apparently strategic decision at trial and then complain on appeal that

the result of that decision constitutes reversible error.” State v. Dorr, 8th Dist. No.

84433, 2005-Ohio-775, ¶ 7. The doctrine of invited error stems from this axiom

and “holds that a litigant may not ‘take advantage of an error which he himself

invited or induced.’” State v. Campbell, 90 Ohio St.3d 320, 324 (2000), quoting

4
  Further, both the prosecutor and Barnett’s defense counsel said during their opening and closing
statements that the jurors need not consider the Auglaize County fire when deciding Barnett’s guilt in this
matter.

                                                  -19-
Case No. 8-12-09


Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio St.3d 20 (1986),

paragraph one of the syllabus. Ohio courts have typically found invited error

“when a party introduces inadmissible evidence * * * [by] elicit[ing] extensive

testimony about prior crimes on cross examination.” State v. Eichelbrenner, 1st

Dist. No. C-110431, 2013-Ohio-1194, ¶ 16; see also State v. Myers, 9th Dist. No.

25737, 2012-Ohio-1820, ¶ 14 (finding invited error where “the testimony

surrounding the underlying facts of the earlier case was elicited on cross

examination by defense counsel”).

      {¶39} The opening statement of Barnett’s trial counsel included the

following pertinent argument:

      What I want to caution you – and I think the evidence will show
      someone here has an axe to grind. Someone here has a vendetta
      against [Barnett].
      I would submit that the evidence will show that the people that have
      the axe to grind are the people that lost their loved one in that fire.
      And they’re the ones that generated the investigation and started the
      police on their investigation and led them that way. We believe the
      evidence will show that they had access and they had knowledge
      about methamphetamines and that the evidence will show that it was
      them and not [Barnett] that committed the crimes. Trial Tr., p. 74-
      75.

According to this statement, Barnett’s theory of the case was that Jimmy and Josh

had a “vendetta” against him and sought to implicate him in the manufacture of

methamphetamine. To further develop this theory, Barnett sought to establish

Jimmy’s and Josh’s motive for the vendetta. As such, Barnett was the first to


                                       -20-
Case No. 8-12-09


elicit testimony regarding the beliefs of Jeff’s sons as they relate to the fire, Jeff’s

death, and Barnett’s alleged role.

       {¶40} Barnett questioned Sergeant Burke, the State’s first witness, as

follows on cross-examination:

       Q: And [Jimmy and Josh] already had an opinion as to how [the
       fire started] when they arrived [at the police station], did they not?

       A:   They?

       Q:   They thought they knew who did it and what the cause was.

       A:   Not initially, no. Trial Tr., p. 100.

Barnett also initiated the following exchange with Jimmy on cross-examination:

       Q: Okay. Now, I think part of what’s going on is you believe that
       [Barnett] had something to do with your father’s death; is that true?

       A:   Absolutely. Trial Tr., p. 147.

By being the first to broach the topic of the beliefs of Jimmy and Josh as to

Barnett’s role in the fire and Jeff’s death, Barnett opened the door and invited any

error relating to the admission of this evidence. Further, the admission of Jimmy’s

and Josh’s beliefs did not constitute plain error. As discussed above, the State

offered a significant amount of properly admissible evidence regarding the

charged crimes.

       {¶41} In sum, Sergeant Burke’s, Reiher’s, Jimmy’s, and Josh’s testimony

regarding the Auglaize County fire was not admissible. Still, the admission of the


                                         -21-
Case No. 8-12-09


testimony was not plain error and the admission of Jimmy’s and Josh’s testimony

was invited by Barnett. As such, no reversible error arose from the erroneous

admission of this evidence.

       {¶42} Accordingly, we overrule Barnett’s first assignment of error.

       {¶43} Although we find no plain error to Barnett in the admission of the

above evidence, we are compelled to note that the State’s extended focus on the

Auglaize County fire was entirely unnecessary, even to provide the relevant

background for the indictment. As conceded by the State at oral argument, the

State simply needed to elicit testimony that there was an unrelated incident in

Auglaize County that led the police to investigate Barnett for possible

methamphetamine production.          The State further compounded its errors by

referring to the “loss” experienced by Jimmy and Josh and the negative effects

caused by the manufacture of methamphetamine during its closing argument.

Although these errors are glaring, we nevertheless find that they did not taint the

fairness of Barnett’s trial to the point of reversible error.

                              Assignment of Error No. II

       {¶44} In his second assignment of error, Barnett argues that the trial court’s

judgment should be reversed because he was denied the effective assistance of

counsel. Specifically, Barnett contends that his trial counsel was ineffective since




                                          -22-
Case No. 8-12-09


he did not object to any of the evidence about the fire that killed Jeff. We

disagree.

                    Ineffective Assistance of Counsel Standard

       {¶45} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d

136 (1989), paragraph two of syllabus. “To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.” Id. at paragraph three of syllabus. “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial.   State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by

constitutional amendment on other grounds as recognized by State v. Smith, 80

Ohio St.3d 89, 103 (1997). Further, the court must look to the totality of the

circumstances and not isolated instances of an allegedly deficient performance.

State v. Malone, 2d Dist. No. 10564 (Dec. 13, 1989). “Ineffective assistance does

not exist merely because counsel failed ‘to recognize the factual or legal basis for

a claim, or failed to raise the claim despite recognizing it.’” Id., quoting Smith v.

Murray, 477 U.S. 527, 106 S.Ct. 2661 (1986).




                                        -23-
Case No. 8-12-09


                           Counsel’s Purported Errors

      {¶46} Ineffective assistance of counsel does not exist where the

complained-of conduct was the result of trial counsel’s tactical and strategic

decisions. See State v. Newsome, 3d Dist. No. 12-12-03, 2012-Ohio-6119, ¶ 50

(“Debatable trial tactics, without more, will not be grounds for a claim of

ineffective assistance of counsel.”); State v. Wells, 11th Dist. No. 2011-A-0073,

2012-Ohio-4459, ¶ 92 (“Strategic and tactical decisions fall squarely within the

scope of professionally reasonable judgment.”). Further, when considering trial

counsel’s tactical decisions, courts are expected to exercise a high degree of

deference. See Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527 (2003)

(“[S]trategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable.”). After reviewing trial counsel’s

performance in this matter, we believe that his decision to not object to evidence

of the Auglaize County fire was part of a reasonable trial strategy. As discussed

above, Barnett sought to establish that Jimmy and Josh had a vendetta against him

and   sought   to   wrongfully    implicate   Barnett   in   the   manufacture   of

methamphetamine. To show this vendetta, Barnett had to establish that Jimmy’s

and Josh’s motive was to retaliate against him since they believed he was involved

in Jeff’s death. Although this strategy was of debatable merit, we are not in a

position to second-guess it or to label it unreasonable. Indeed, it was perhaps the


                                       -24-
Case No. 8-12-09


only strategy available to the defense. Further, as noted above, the State offered

significant evidence to establish the elements of the crimes charged in the

indictment. As a result, trial counsel’s performance in this regard did not affect

the outcome of the trial.

       {¶47} Accordingly, we overrule Barnett’s second assignment of error.

       {¶48} Having found no error prejudicial to Barnett, in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                             Judgment Affirmed

WILLAMOWSKI, J., concurs.

SHAW, J., concurs in Judgment Only.

/jlr




                                       -25-
