[Cite as State v. Lamb, 2018-Ohio-1405.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               SCIOTO COUNTY

STATE OF OHIO,                  :
                                :   Case No. 17CA3796
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
TOBY L. LAMB, II                :
                                :
     Defendant-Appellant.       :   Released: 04/10/18
_____________________________________________________________
                          APPEARANCES:

Matthew F. Loesch, Portsmouth, Ohio, for Appellant.

Mark Kuhn, Scioto County Prosecuting Attorney, and Shane Tieman, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Toby Lamb, II, appeals his convictions and sentences for

aggravated robbery and failure to comply with an order or signal of a police

officer, after a jury found him guilty of both charges. On appeal, Appellant

contends that 1) his trial counsel was ineffective for failing to properly

advise him of a plea offer made by the State of Ohio; 2) his convictions for

aggravated robbery and failure to comply were against the manifest weight

and sufficiency of the evidence; 3) the trial court abused its discretion in

admitting improper hearsay evidence from Detective Jodi Conkel and/or
Scioto App. No. 17CA3796                                                       2

failing to provide a proper curative instruction; 4) his speedy trial rights

under R.C. 2945.71 were violated as a matter of law; 5) a mistrial should

have been declared due to improper selection of the alternate juror at trial; 6)

he was denied his Sixth Amendment right to a fair trial when his pro se

motions went unaddressed; and 7) cumulative errors committed during his

trial deprived him of a fair trial and require reversal of his conviction.

      {¶2} Because we conclude Appellant’s trial counsel was not

ineffective with respect to advising him regarding his plea offers made by

the State, Appellant’s first assignment of error is overruled. And, we cannot

conclude that Appellant’s convictions were against the manifest weight of

the evidence or not supported by sufficient evidence, his second assignment

of error is overruled. Likewise, in light of our finding there was no plain

error in the trial court’s admission of alleged hearsay testimony by Detective

Conkel or failure to issue a curative instruction, Appellant’s third assignment

of error is overruled. Similarly, having concluded Appellant did not

preserve his speedy trial argument for purposes of appeal, his fourth

assignment of error is overruled. Also, having determined the trial court did

not err in failing to declare a mistrial, we must overrule Appellant’s fifth

assignment of error. Finally, having found no merit to Appellant’s sixth or

seventh assignments of error, they are also overruled.
Scioto App. No. 17CA3796                                                      3

                                   FACTS

      {¶3} A review of the record reveals that on October 16, 2015, an

African-American male entered the Super 8 Motel located in the Rosemount

area of Scioto County, Ohio, at approximately 4:52 a.m. Accordingly to the

hotel clerk, Andrea Meddock, the man was wearing a hunter green

sweatshirt with no hood but with a towel or something around his head so

that only his eyes could be seen, clear plastic gloves (the type used while

dying hair, not medical gloves), and was holding a silver gun. He ordered

the clerk to open the safe; however, she fled without giving him any money,

and then he fled as well. Scioto County Sheriff’s Deputy Brian Nolan

responded to the scene, took the statement of the clerk, and radioed dispatch

to issue an order to be on the lookout for the suspect. New Boston Police

Department Officer Josh Carver was working in the Rosemount area at the

time and heard the radio traffic indicating an armed robbery had occurred at

the motel. He stationed himself at a gas station on the corner of Rosemount

Road and State Route 139 and pointed his lights toward oncoming traffic so

he could watch for the suspect.

      {¶4} Shortly thereafter Officer Carver saw a vehicle coming down

Rosemount Road with what he described as two African-American

individuals. When the individual in the passenger seat completely laid the
Scioto App. No. 17CA3796                                                        4

seat down in what appeared to be an effort to hide, after passing a Sheriff’s

cruiser traveling the opposite direction with lights and sirens, Officer Carver

decided to follow the vehicle. The vehicle, a maroon colored Pontiac

Bonneville, initially stopped pursuant to a traffic stop initiated by Officer

Carver; however, as Officer Carver approached the passenger side of the

vehicle and was able to view an African-American male, the driver of the

vehicle sped off. A high-speed chase ensued with the car stopping one time

while on Route 139, at which point the driver of the vehicle jumped, or

stumbled, out of the car. The passenger then got into the driver’s seat and

the chase continued. Officer Carver chased the vehicle down Route 139 and

over Houston Hollow Road at speeds up to 80 M.P.H., around curvy and

poorly lit residential areas. The chase ended with the vehicle flipping over.

The suspect fled and was not apprehended. Upon doing an inventory of the

vehicle, law enforcement recovered a hunter green sweatshirt with no hood,

clear plastic, non-medical gloves, and a nickel-plated semi-automatic pistol.

      {¶5} The original driver of the car, later determined to be an African-

American female named Danielle Foster from Dayton, Ohio, was later

picked up by the Sheriff’s office and was taken to the jail for questioning.

Detective Jodi Conkel interviewed Ms. Foster the next day at the jail. Ms.

Foster initially told Detective Conkel she had agreed to drive an unknown
Scioto App. No. 17CA3796                                                           5

man to Scioto County to pick up money that was owed to him by a friend.

During the interview, Ms. Foster told her she stopped at the McDonald’s in

Rosemount to get a drink through the drive-thru, at which point the man

used her phone to call his friend to make arrangements, but that the friend

did not answer. She further told her that the man then left for about fifteen

to twenty minutes, but that she didn’t know where he went. When he came

back, he gave her directions over what appeared to be Rosemount Road and

towards the area where Officer Carver was stationed. She explained that she

was initially the driver of the vehicle and that she drove off after the traffic

stop because the man held a gun to her.

      {¶6} Upon further investigation, which included listening to jail calls,

talking to someone who claimed to be Danielle Foster’s sister, and speaking

with the jail in Dayton, Ohio, where Ms. Foster had been held on a previous

occasion, Detective Conkel confronted Ms. Foster again and stated she knew

Appellant, Toby Lamb, II, was the individual that was with her. Ms. Foster

admitted the same. Subsequent investigation, which included obtaining a

DNA standard from Appellant, and testing of the items recovered from the

vehicle, revealed that Appellant’s DNA was located on the thumb of one of

the gloves found in the car. While Appellant’s DNA was not found on the
Scioto App. No. 17CA3796                                                                                   6

sweatshirt, he could not be excluded as a wearer of the shirt. No DNA

testing was performed on the gun.

         {¶7} Based upon these events and this evidence, Appellant, Toby

Lamb II, was indicted on November 19, 2015, for one count of aggravated

robbery, a first degree felony in violation of R.C. 2911.01(A)(1) and (C),

along with a firearm specification pursuant to R.C. 2941.145(A). He was

also indicted for one count of failure to comply with the order or signal of a

police officer, a third degree felony in violation of R.C. 2921.331(B) and

(C)(5)(a)(ii), and one count of receiving stolen property, a fourth degree

felony in violation of R.C. 2913.51(A) and (C). Appellant was not

apprehended until June 17, 2016. Appellant was thereafter arraigned and

counsel was appointed. The matter proceeded to a jury trial on March 6,

2017.1

         {¶8} The record reveals that although the trial initially began and a

jury was selected and seated on March 6, 2017, the trial judge came under a

disability and the trial was not reconvened until March 13, 2017. Further,

when the trial was reconvened, a visiting judge took over the case and heard

the trial. The State introduced several witnesses at trial, including: 1)


1
  Despite being represented by counsel, Appellant filed two pro se motions prior to trial, including a motion
to suppress and a motion for an evidentiary hearing. These motions were not disposed of until the trial
court struck them from the record after the trial.
Scioto App. No. 17CA3796                                                        7

Andrea Meddock, the hotel clerk; 2) Deputy Brian Nolan, the Scioto County

Sheriff’s Deputy who first responded to the hotel and who later inventoried

the vehicle; 3) Officer Josh Carver, the New Boston Police Officer who was

involved in the high-speed chase; 4) Danielle Foster, Appellant’s co-

defendant; 5) Detective Dan Malone, the evidence officer with the Scioto

County Sheriff’s Department; 6) Devonie Herdeman, a forensic scientist in

the DNA Section at the Ohio Bureau of Criminal Identification and

Investigation (BCI); and 7) Detective Jodi Conkel, who interviewed Danielle

Foster at the jail and later obtained DNA samples from Appellant. Appellant

introduced only one witness, his son, Toby Lamb, III, who testified that his

father had attended his freshman football game on the night in question, had

stayed the night with him and his mother and then took him to school the

next morning at 7:00 a.m. He also admitted on cross-examination that his

mother owns a maroon Pontiac Bonneville and that it was reported stolen

sometime between October 14 and October 16, 2015.

      {¶9} The record further reveals that because it was the original trial

judge’s practice to do so, thirteen jurors were initially seated on the jury,

rather than twelve, with the practice of randomly selecting one juror to be

eliminated as an alternate prior to the start of deliberations. When it was

time to eliminate the alternate juror, a number was drawn out of a basket,
Scioto App. No. 17CA3796                                                                                    8

and the juror whose number was drawn was the only African-American on

the jury. At that point, defense counsel objected. However, the juror was

eliminated and the matter was submitted to the remaining jurors. Appellant

was ultimately convicted of aggravated robbery, with a firearm specification,

and failure to comply with an order or signal of a police officer, as charged

in the indictment.2 The trial court then sentenced Appellant to an aggregate

term of fifteen years in prison in an April 5, 2017 sentencing entry. It is

from this judgment entry Appellant now brings his appeal, setting forth

seven assignments of error for our review.

                                 ASSIGNMENTS OF ERROR

“I.      DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE IN
         FAILING TO PROPERLY ADVISE DEFENDANT OF A PLEA
         OFFER MADE BY THE STATE OF OHIO.

II.      APPELLANT'S CONVICTIONS FOR (A) AGGRAVATED
         ROBBERY AND (B) FAILURE TO COMPLY WERE AGAINST
         THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
         EVIDENCE.

III.     THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
         IMPROPER HEARSAY EVIDENCE FROM DETECTIVE JODI
         CONKEL AND/OR FAILING TO PROVIDE A PROPER
         CURATIVE INSTRUCTION.

IV.      APPELLANT'S SPEEDY TRIAL RIGHTS UNDER O.R.C. 2945.71
         WERE VIOLATED AS A MATTER OF LAW.


2
 The third count of the indictment, receiving stolen property, was orally dismissed by the State during trial
and was dismissed by the court in the written judgment entry dated March 16, 2017.
Scioto App. No. 17CA3796                                                      9

V.    A MISTRIAL SHOULD HAVE BEEN DECLARED DUE TO
      IMPROPER SELECTION OF THE ALTERNATE JUROR AT
      TRIAL.

VI.   APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHTS
      TO A FAIR TRIAL WHEN HIS PRO SE MOTIONS WENT
      UNADDRESSED.

VII. CUMULATIVE ERRORS COMMITTED DURING THE
     APPELLANT'S TRIAL DEPRIVED HIM OF A FAIR TRIAL AND
     REQUIRE REVERSAL OF HIS CONVICTIONS.”

                        ASSIGNMENT OF ERROR I

      {¶10} In his first assignment of error, Appellant contends that his trial

counsel was ineffective in failing to properly advise him of a plea offer made

by the State of Ohio. More specifically, Appellant argues that a plea offer

was discussed the morning of the first day of trial which involved him

pleading to second degree felony robbery in exchange for a sentence of three

years and nine months. Appellant contends he advised his counsel he

wanted to "sleep on it" but that when the trial resumed a week later with a

different judge, the offer was no longer available. Thus, Appellant does not

claim his counsel failed to advise him of the terms of the plea offer, but

rather that his counsel failed to advise him of the time limit in which to

accept the plea offer. The State denies such an offer was made. Instead, the

State contends that two formal offers were made and put on the record, both
Scioto App. No. 17CA3796                                                        10

of which were rejected by Appellant, and that neither of them involved a

sentence of three years and nine months or were made the morning of trial.

      {¶11} Criminal defendants have a right to counsel, including a right

to the effective assistance from counsel. McMann v. Richardson, 397 U.S.

759, 770, 90 S.Ct. 1441 (1970); State v. Stout, 4th Dist. Gallia No. 07CA5,

2008–Ohio–1366, ¶ 21. Further, criminal defendants are entitled to effective

assistance of counsel during plea negotiations. Lafler v. Cooper, 566 U.S.

156, 162, 132 S.Ct. 1376 (2012). To establish constitutionally ineffective

assistance of counsel, a defendant must show (1) that his counsel's

performance was deficient and (2) that the deficient performance prejudiced

the defense and deprived him of a fair trial. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Issa, 93 Ohio St.3d 49, 67,

752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d

916 (1998). “In order to show deficient performance, the defendant must

prove that counsel's performance fell below an objective level of reasonable

representation. To show prejudice, the defendant must show a reasonable

probability that, but for counsel's error, the result of the proceeding would

have been different.” State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–

2815, 848 N.E.2d 810, ¶ 95 (citations omitted). “Failure to establish either

element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116,
Scioto App. No. 17CA3796                                                        11

2008–Ohio–968, ¶ 14. Therefore, if one element is dispositive, a court need

not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–Ohio–

448, 721 N.E.2d 52, (stating that a defendant's failure to satisfy one of the

elements “negates a court's need to consider the other”).

      {¶12} When considering whether trial counsel's representation

amounts to deficient performance, “a court must indulge a strong

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

professional assistance.” Strickland at 689. Thus, “the defendant must

overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id. “A properly licensed

attorney is presumed to execute his duties in an ethical and competent

manner.” State v. Taylor, 4th Dist. Washington No. 07CA11, 2008–Ohio–

482, ¶ 10; citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128

(1985). Therefore, a defendant bears the burden to show ineffectiveness by

demonstrating that counsel's errors were so serious that he or she failed to

function as the counsel guaranteed by the Sixth Amendment. State v.

Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 62; State

v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).

      {¶13} Furthermore, courts may not simply assume the existence of

prejudice, but must require that prejudice be affirmatively demonstrated. See
Scioto App. No. 17CA3796                                                      12

State v. Clark, 4th Dist. Pike No. 02CA684, 2003–Ohio–1707, ¶ 22; State v.

Tucker, 4th Dist. Ross No. 01CA2592, 2002–Ohio–1597; State v. Kuntz, 4th

Dist. Ross No. 1691, 1992 WL 42774. To show prejudice from ineffective

assistance of counsel where a plea offer has lapsed or been rejected because

of counsel's deficient performance, defendants must demonstrate a

reasonable probability they would have accepted the earlier plea offer had

they been afforded effective assistance of counsel.” Missouri v. Frye, 566

U.S. 134, 145, 132 S.Ct. 1399 (2012).

      {¶14} The United States Supreme Court has held that, “as a general

rule, defense counsel has the duty to communicate formal offers from the

prosecution to accept a plea on terms and conditions that may be favorable

to the accused.” Frye at 147. Defense counsel also must provide effective

assistance when advising a defendant on whether to accept a plea offer.

Lafler at 162-170; State v. Fickenworth, 10th Dist. Franklin No. 14AP–542,

2015–Ohio–1556, ¶ 9. A defense attorney's failure to notify his client of a

prosecutor's plea offer constitutes ineffective assistance of counsel under the

Sixth Amendment and satisfies the deficient performance prong of the

Strickland test. Griffin v. United States (C.A.6, 2003), 330 F.3d 733, 737;

Johnson v. Duckworth (C.A.7, 1986), 793 F.2d 898, certiorari denied 479

U.S. 937, 107 S.Ct. 416 (1986) (criminal defense attorneys have a duty to
Scioto App. No. 17CA3796                                                      13

inform their clients of plea bargains proffered by the prosecution; failure to

do so constitutes ineffective assistance under the Sixth and Fourteenth

Amendments).

      {¶15} Here, a review of the record reveals that two formal offers

were made by the State and rejected by Appellant. There is no indication

from the record before us that an offer involving a sentence of three years

and nine months was ever made by the State. The only reference to such an

offer appears in the sentencing hearing transcript and is in the form of an

allegation made by Appellant himself. The State denies any offers, other

than the two formal offers that were put on record, were made. Further,

even if there was evidence that such an offer was made and that Appellant's

trial counsel's performance was deficient in failing to advise Appellant of the

time limit in which to accept the offer, Appellant has failed to show he was

prejudiced as a result. Appellant has not alleged, either at the sentencing

hearing when he first raised this issue, or on appeal, that he would have

actually accepted the plea offer he describes. "To establish prejudice,

appellant must show he would have accepted the plea offer had it been

communicated to him." State v. Hicks, 12th Dist. Butler No. CA2002–08–

198, 2003-Ohio-7210, ¶ 15; citing Haley v. United States (C.A.6, 2001), 3
Scioto App. No. 17CA3796                                                      14

Fed. Appx. 426, 2001 WL 133131, certiorari denied, 534 U.S. 1031, 122

S.Ct. 568.

      {¶16} Additionally, as explained in State v. Moore, 5th Dist. Stark

No. 2016CA00094, 2016-Ohio-7380, ¶ 21:

      "* * * it is well settled a trial court enjoys wide discretion in
      deciding whether to accept or reject a negotiated plea
      agreement. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct.
      495, 30 L.Ed.2d 427 (1971); Akron v. Ragsdale, 61 Ohio
      App.2d 107, 109–10, 399 N.E.2d 119 (9th Dist.1978). Indeed, a
      defendant has no absolute right to have a guilty plea accepted.
      Santobello at 262, 92 S.Ct. 495, 30 L.Ed.2d 427; Lafler v.
      Cooper, 556 U.S. [156], 132 S.Ct. 1376, 1395, 182 L.Ed.2d 398
      (2012)."

Thus, consistent with the reasoning in Moore, Appellant has failed to present

any evidence the trial court would have accepted the plea bargain.

Therefore, even if counsel's performance was deficient, Appellant has not

established he was prejudiced by counsel's performance. Accordingly, we

find no merit to Appellant's first assignment of error and it is overruled.

                        ASSIGNMENT OF ERROR II

      {¶17} In his second assignment of error, Appellant contends that his

convictions for aggravated robbery and failure to comply were against the

manifest weight and sufficiency of the evidence. Appellant's arguments

primarily allege that the State failed to prove his identity in the commission

of the crimes, and that the testimony of his co-defendant, Danielle Foster, is
Scioto App. No. 17CA3796                                                      15

unreliable and should have been viewed by the jury with grave suspicion.

The State contends that considering the accomplice testimony and other

corroborating evidence in a light most favorable to the State, the jury could

have concluded that the State's case was adequately proven. The State

further argues that the jury did not lose its way.

      {¶18} “When a court reviews a record for sufficiency, ‘[t]he relevant

inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.’ ” State v.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146; quoting

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of

the syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). “The

court must defer to the trier of fact on questions of credibility and the weight

assigned to the evidence.” State v. Dillard, 4th Dist. Meigs No. 13CA9,

2014-Ohio-4974, ¶ 22; citing State v. Kirkland, 140 Ohio St.3d 73, 2014-

Ohio-1966, 15 N.E.3d 818, ¶ 132.

      {¶19} In determining whether a criminal conviction is against the

manifest weight of the evidence, 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
Scioto App. No. 17CA3796                                                        16

evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed. State v.

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

131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.

      {¶20} “Although a court of appeals may determine that a judgment is

sustained by sufficient evidence, that court may nevertheless conclude that

the judgment is against the weight of the evidence.” Thompkins at 387. But

the weight and credibility of evidence are to be determined by the trier of

fact. Kirkland at ¶ 132. The trier of fact is free to believe all, part, or none of

the testimony of any witness, and we defer to the trier of fact on evidentiary

weight and credibility issues because it is in the best position to gauge the

witnesses' demeanor, gestures, and voice inflections, and to use these

observations to weigh their credibility. Dillard at ¶ 28; citing State v. West,

4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23.

      {¶21} As indicated above, Appellant was convicted of one count of

aggravated robbery with a gun specification and one count of failure to

comply with an order or signal of a police officer, both in connection with

the armed robbery of the Super 8 Motel in Scioto County and the high-speed

chase that ensued thereafter. R.C. 2911.01 defines aggravated robbery and

provides, in pertinent part, as follows:
Scioto App. No. 17CA3796                                                       17

      "(A) No person, in attempting or committing a theft offense, as
      defined in section 2913.01 of the Revised Code, or in fleeing
      immediately after the attempt or offense, shall do any of the
      following:
      (1) Have a deadly weapon on or about the offender's person or
      under the offender's control and either display the weapon,
      brandish it, indicate that the offender possesses it, or use it[.]"

Additionally, R.C. 2941.145 governs specifications concerning use of

firearms to facilitate offenses and provides, in pertinent part, as follows:

      “(A) Imposition of a three-year mandatory prison term upon an
      offender under division (B)(1)(a)(ii) of section 2929.14 of the Revised
      Code is precluded unless the indictment, count in the indictment, or
      information charging the offense specifies that the offender had a
      firearm on or about the offender's person or under the offender's
      control while committing the offense and displayed the firearm,
      brandished the firearm, indicated that the offender possessed the
      firearm, or used it to facilitate the offense. * * *”

      {¶22} Further, R.C. 2921.331 defines failure to comply with an order

or signal of a police officer and provides, in pertinent part, as follows:

      "(B) No person shall operate a motor vehicle so as willfully to
      elude or flee a police officer after receiving a visible or audible
      signal from a police officer to bring the person's motor vehicle
      to a stop.
      ***
      (C)(1) Whoever violates this section is guilty of failure to
      comply with an order or signal of a police officer.
      ***
      (5)(a) A violation of division (B) of this section is a felony of
      the third degree if the jury or judge as trier of fact finds any of
      the following by proof beyond a reasonable doubt:
      ***
      (ii) The operation of the motor vehicle by the offender caused a
      substantial risk of serious physical harm to persons or
      property."
Scioto App. No. 17CA3796                                                         18

      {¶23} Here, Appellant essentially contends that the State did not

prove his identity as the perpetrator of the crimes at issue. He does not

argue the State failed to prove any of the specific elements of these offenses,

but instead argues the State failed to prove he was the person who

committed the crimes. However, viewing the evidence in a light most

favorable to the State, the jury was presented with the following testimony

and evidence at trial: 1) hotel clerk Andrea Meddock testified an African-

American male wearing a hunter green sweatshirt and clear plastic gloves

presented himself at the Super 8 Motel on the night in question, holding a

silver pistol and demanded money; 2) law enforcement testimony that a

high-speed chase ensued thereafter on a curvy, winding road at night which

resulted in a vehicle crash, and a subsequent search of the vehicle yielded a

hunter green sweatshirt and clear plastic gloves; 3) DNA testing performed

on these items revealed Appellant's DNA on one of the gloves, but did not

indicate Appellant's DNA was on the sweatshirt; 4) expert testimony

explained the lack of Appellant's DNA on the sweatshirt does not eliminate

him as wearer of the shirt; 5) co-defendant Danielle Foster testified at trial

and identified Appellant as the individual with her in the car on the night at

issue, stating she parked at a McDonald's (which evidence revealed was

right near the Super 8 Motel) and waited on him while he exited the car and
Scioto App. No. 17CA3796                                                      19

later returned, and then became involved in a high-speed chase; and 6) the

vehicle involved in the high-speed chase, which contained an item with

Appellant’s DNA on it, was owned by Appellant’s son’s mother, who had

reported the car stolen some time between October 14 and October 16, 2015.

The jury also viewed videos of the hotel surveillance system and the cruiser

cam and body cam footage from the officer involved in the high-speed

chase.

         {¶24} We find that the jury could have reasonably concluded, based

upon this evidence, that the State proved each and every element of the

offenses at issue, and proved Appellant was the individual who committed

these offenses. Despite Appellant's argument that Danielle Foster's

testimony should have been discounted, a review of the record reveals that

the trial court properly instructed the jury with regard to its consideration of

accomplice testimony as follows:

         "The testimony of an accomplice does not become inadmissible
         because of his or her complicity, moral turpitude, or self-
         interest, but the admitted or claimed complicity of a witness
         may affect his or her credibility and make that testimony
         subject to grave suspicion, and require that it be weighed with
         great caution."

Despite this admonition, it is clear the jury weighed the evidence and

testimony, including the accomplice testimony in favor of the State, which

was within its province to do as the trier of fact.
Scioto App. No. 17CA3796                                                       20

      {¶25} In light of the foregoing, we cannot conclude that Appellant's

convictions are against the manifest weight of the evidence, that the jury lost

its way, or that Appellant's convictions were such a manifest miscarriage of

justice that they must be reversed. Moreover, “[w]hen an appellate court

concludes that the weight of the evidence supports a defendant's conviction,

this conclusion necessarily also includes a finding that sufficient evidence

supports the conviction.” State v. Adkins, 4th Dist. Lawrence No. 13CA17,

2014-Ohio-3389, ¶ 27. Having already determined that Appellant's

convictions are not against the manifest weight of the evidence, we

necessarily reject Appellant's additional claim that his convictions are not

supported by sufficient evidence. Therefore, Appellant's second assignment

of error is overruled.

                         ASSIGNMENT OF ERROR III

      {¶26} In his third assignment of error, Appellant contends the trial

court abused its discretion in admitting improper hearsay evidence from

Detective Jodi Conkel and/or failing to provide a proper curative instruction.

Appellant more specifically argues that Detective Conkel was improperly

permitted to testify to statements made to her by Appellant's co-defendant,

Danielle Foster, Danielle Foster's sister (who did not testify at trial), and also

regarding her investigation which revealed Appellant had visited Ms. Foster
Scioto App. No. 17CA3796                                                          21

while she was in jail in Dayton, Ohio. The State argues this testimony was

merely cumulative to the trial testimony provided by Danielle Foster and

already heard by the jury and that the admission of the Conkel’s additional

testimony was harmless error.

      {¶27} “A trial court has broad discretion in the admission or

exclusion of evidence, and so long as such discretion is exercised in line

with the rules of procedure and evidence, its judgment will not be reversed

absent a clear showing of an abuse of discretion with attendant material

prejudice to defendant.” State v. Richardson, 4th Dist. Scioto No.

14CA3671, 2015-Ohio-4708, ¶ 62; quoting State v. Green, 184 Ohio App.3d

406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.). Absent an abuse of

discretion, an appellate court will not disturb a trial court's ruling regarding

the admissibility of evidence. State v. Linkous, 4th Dist. Scioto No.

12CA3517, 2013-Ohio-5853, ¶ 22; citing State v. Martin, 19 Ohio St.3d

122, 129, 483 N.E.2d 1157 (1985). To constitute an abuse of discretion, the

trial court's decision must be unreasonable, arbitrary, or unconscionable.

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

      {¶28} With respect to the question of whether the trial court abused

its discretion in failing to provide a curative instruction after the objection

was finally made, we note the decision to give or refuse to give jury
Scioto App. No. 17CA3796                                                       22

instructions is within the trial court's sound discretion. Columbia Gas of

Ohio, Inc. v. R.S.V. Inc., 7th Dist. Jefferson No. 05JE29, 2006-Ohio-7064, ¶

55; State v. McCleod, 7th Dist. Jefferson No. 00JE8, 2001 WL 1647305

(Dec. 12, 2001); citing State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d

443 (1989). Thus, we will not reverse a verdict on this basis absent a trial

court's abuse of discretion. An inadequate instruction that misleads the jury

constitutes reversible error. Taylor, supra; citing Marshall v. Gibson, 19

Ohio St.3d 10, 12, 482 N.E.2d 583 (1985). However, a defendant's “failure

to object to improprieties in jury instructions waives error on appeal absent

plain error.” State v. Johnson, 40 N.E.3d 628, 2015-Ohio-3248, 40 N.E.3d

628, ¶ 112; quoting State v. Canter, 10th Dist. Franklin No. 01AP–531, 2002

WL 452461 (Mar. 26, 2002); citing State v. Morrison, 10th Dist. Franklin

No. 01AP–714, 2001 WL 1662020 (Dec. 31, 2001). See also State v. Lewis,

4th Dist. Ross No. 14CA3467 2015-Ohio-4303.

      {¶29} Here, the record reveals and Appellant concedes his trial

counsel did not object to the complained-of portion of Detective Conkel's

testimony until well after it was given and heard by the jury. The record

further reveals that trial counsel did not request the trial court provide a

curative instruction to the jury. Thus, these alleged errors may only be

reviewed for plain error. Therefore, we are further governed by Crim.R.
Scioto App. No. 17CA3796                                                            23

52(B). “To constitute plain error, a reviewing court must find (1) an error in

the proceedings, (2) the error must be a plain, obvious or clear defect in the

trial proceedings, and (3) the error must have affected ‘substantial rights'

(i.e., the trial court's error must have affected the trial's outcome).” State v.

Lewis, supra, at ¶ 9; quoting State v. Dickess, 174 Ohio App.3d 658, 2008-

Ohio-39, 884 N.E.2d 92, ¶ 31 (4th Dist.); citing State v. Hill, 92 Ohio St.3d

191, 749 N.E.2d 274 (2001), and State v. Barnes, 94 Ohio St.3d 21, 27, 759

N.E.2d 1240 (2002). “Furthermore, notice of plain error must be taken with

the utmost caution, under exceptional circumstances, and only to prevent a

manifest miscarriage of justice.” Lewis, supra; citing State v. Landrum, 53

Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), and State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “A

reviewing court should notice plain error only if the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id.

      {¶30} Hearsay is defined 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.” Evid.R. 801(C). Hearsay is inadmissible at

trial, unless it falls under an exception to the Rules of Evidence. Evid.R.

802. Evid.R. 801(D)(2)(a) provides that a statement is “not hearsay” if,

“The statement is offered against a party and is * * * the party's own
Scioto App. No. 17CA3796                                                       24

statement * * *.” The statements at issue herein are not Appellant's own

statements, but rather are statements allegedly made by Appellant's co-

defendant to law enforcement during the investigation of the offenses herein,

as well as statements made by Appellant's co-defendant's sister implicating

him.

       {¶31} A review of the record indicates that Danielle Foster, although

a co-defendant, testified at trial and was subject to cross-examination. Thus,

as the State argues, the testimony given by Detective Conkel regarding

statements made by Ms. Foster were largely cumulative to the testimony

provided by Ms. Foster at trial. Therefore, we cannot conclude that it

changed the outcome of the trial and resulted in plain error. With respect to

Detective Conkel's testimony regarding her investigation of the crimes

which led her to the discovery that Appellant had visited Ms. Foster

previously when she was jailed in Dayton, we do not find this testimony

constituted hearsay. It appears Detective Conkel's testimony served to

illustrate and explain the steps taken during the course of her investigation,

leading up to the point in which Appellant was charged. “[I]t is well-settled

that statements offered by police officers to explain their conduct while

investigating a crime are not hearsay because they are not offered for their

truth, but rather, are offered as an explanation of the process of
Scioto App. No. 17CA3796                                                       25

investigation.” State v. Spires, 4th Dist. Gallia No. 10CA10, 2011–Ohio–

3661, ¶ 13; quoting State v. Warren, 8th Dist. Cuyahoga No. 83823, 2004–

Ohio–5599 at ¶ 46; citing State v. Price, 80 Ohio App.3d 108, 110, 608

N.E.2d 1088 (1992); State v. Braxton, 102 Ohio App.3d 28, 49, 656 N.E.2d

970 (1995); State v. Blevins, 36 Ohio App.3d 147, 149, 521 N.E.2d 1105

(1987). Thus, we find no error, let alone plain error, related to the admission

of these statements.

      {¶32} Finally, we agree with Appellant that Detective Conkel's

testimony indicating Danielle Foster's sister reported that Appellant was

with Ms. Foster on the night of the crimes constituted improper hearsay and

should not have been admitted into evidence, and that the facts presented

herein are very similar to the facts we considered in State v. Gerald, 4th

Dist. Scioto No. 12CA3519, 2014-Ohio-3629. As noted in Gerald, although

the admission or exclusion of evidence generally rests in the discretion of

the trial court, “questions concerning evidentiary issues that also involve

constitutional protections, including confrontation clause issues, should be

reviewed de novo.” Gerald at ¶ 59; citing State v. Jeffers, 4th Dist. No.

08CA7, 2009–Ohio–1672, ¶ 17; citing State v. Hardison, 9th Dist. Summit

No. 23050, 2007–Ohio–366.
Scioto App. No. 17CA3796                                                       26

      {¶33} The Sixth Amendment to the United States Constitution

provides, “[i]n all criminal prosecutions, the accused shall enjoy the right

* * * to be confronted with the witnesses against him.” The Supreme Court

of the United States has “held that this bedrock procedural guarantee applies

to both federal and state prosecutions.” Crawford v. Washington, 541 U.S.

36, 42, 124 S.Ct. 1354 (2004); citing Pointer v. Texas, 380 U.S. 400, 406, 85

S.Ct. 1065 (1965). Likewise, Section 10, Article I of the Ohio Constitution

provides, “[i]n any trial, in any court, the party accused shall be allowed * *

* to meet the witnesses face to face.” Before its admission, “[w]here

testimonial evidence is at issue * * * the Sixth Amendment demands what

the common law required: unavailability and a prior opportunity for cross

examination.” Crawford at 68.

      {¶34} The threshold inquiry is whether the challenged out-of-court

statements were testimonial in nature and needed to be tested by

confrontation. See State v. Lewis, 1st Dist. Hamilton Nos. C–050989 and

C060010, 2007–Ohio–1485, ¶ 30. Statements are “testimonial when the

circumstances objectively indicate that there is no * * * ongoing emergency,

and that the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later prosecution.” Davis v. Washington, 547

U.S. 813, 822, 126 S.Ct. 2266 (2006); see also State v. Stahl, 111 Ohio St.3d
Scioto App. No. 17CA3796                                                      27

186, 2006–Ohio–5482, 855 N.E.2d 834, paragraph one of the syllabus.

Here, similar to Gerald, there was no ongoing emergency, but rather, the

circumstances indicate that the purpose of Detective Conkel’s conversation

with Danielle Foster's sister was to prove past events relevant for later

prosecution. Therefore, we find the statements at issue to be testimonial.

      {¶35} As noted in Gerald at ¶ 62, however, Confrontation Clause

violations are subject to harmless error analysis. See State v. Kraft, 1st Dist.

Hamilton No. C–060238, 2007–Ohio–2247, ¶ 67; citing United States v.

Summers, 414 F.3d 1287, 1303 (10th Cir.2005). “A constitutional error can

be held harmless if we determine that it was harmless beyond a reasonable

doubt.” State v. Conway, 108 Ohio St.3d 214, 2006–Ohio–791, 842 N.E.2d

996, ¶ 78; citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824

(1967). However, the question of whether a Sixth Amendment error was

harmless beyond a reasonable doubt is not simply an inquiry into the

sufficiency of the remaining evidence. Conway at ¶ 78. Rather, it is a

question of whether there is a reasonable possibility that the evidence

complained of might have contributed to the convictions. Id.; citing

Chapman at 23.

      {¶36} Here, Detective Conkel testified Appellant's co-defendant's

sister told her that Appellant was the person with Danielle Foster on the
Scioto App. No. 17CA3796                                                         28

night at issue, thus implicating Appellant in the crimes. These statements

constituted impermissible hearsay and should not have been admitted at trial

and further, no curative or limiting instruction was requested or given. In

Gerald, the focus of our analysis was on statements allegedly made by co-

defendants that were repeated to the jury through Detective Conkel's

testimony, and those co-defendants did not testify at trial and were not

subject to cross-examination. Even so, we found the admission of the

improper co-defendant testimony to be harmless beyond a reasonable doubt

in Gerald in light of the fact we had already determined, without relying on

the improper hearsay testimony, that Gerald's convictions were not against

the manifest weight of the evidence. Gerald at ¶ 68.

       {¶37} The focus of this portion of our analysis is not co-defendant

statements admitted through law enforcement testimony of a co-defendant

that did not testify at trial, as in Gerald, but rather the co-defendant's sister's

statements, which were made to Detective Conkel during the course of her

investigation. Nevertheless, we find the admission of Danielle Foster's

sister's statements to be harmless beyond a reasonable doubt in light of the

other evidence introduced by the State to establish Appellant's guilt, as

discussed above, as well as our finding, much like in Gerald, that

Appellant's convictions were not against the manifest weight of the
Scioto App. No. 17CA3796                                                        29

evidence. Further, in light of our plain error standard of review and Ms.

Foster’s testimony that Appellant was with her on the night these offenses

occurred, as well as the DNA evidence linking Appellant to gloves matching

the description of those worn during the robbery and found in the vehicle

after the high-speed chase, we cannot conclude that admission of the co-

defendant’s sister’s statement changed the outcome of the trial.

Accordingly, we reject Appellant's argument that the trial court abused its

discretion, or as we have discussed, committed plain error, in admitting this

hearsay testimony and failing to provide, sua sponte, a curative instruction.

      {¶38} Appellant further contends his trial counsel was ineffective for

failing to object sooner and for failing to request a curative instruction. As

set forth above, in order to establish constitutionally ineffective assistance of

counsel, a defendant must show (1) that his counsel's performance was

deficient and (2) that the deficient performance prejudiced the defense and

deprived him of a fair trial. Strickland v. Washington, supra, at 687; State v.

Issa, supra, at 67; State v. Goff, supra, at 139. “In order to show deficient

performance, the defendant must prove that counsel's performance fell

below an objective level of reasonable representation. To show prejudice,

the defendant must show a reasonable probability that, but for counsel's

error, the result of the proceeding would have been different.” State v.
Scioto App. No. 17CA3796                                                        30

Conway, supra, at ¶ 95 (citations omitted). “Failure to establish either

element is fatal to the claim.” State v. Jones, supra, at ¶ 14. Therefore, if

one element is dispositive, a court need not analyze both. State v. Madrigal,

supra, at 389.

       {¶39} Here, we have already found that the admission of testimony

constituting hearsay, as well as testimony regarding the steps taken in

Detective Conkel's investigation, did not change the outcome of the trial or

result in plain error. We found likewise with respect to the failure to give a

curative instruction. Having found none of these errors changed the

outcome of the trial or resulted in plain error, we similarly conclude

Appellant has not proven the prejudice required in order to demonstrate a

claim of ineffective assistance of counsel. Accordingly, this alternative

argument raised under Appellant's third assignment of error is also without

merit. Having found no merit in the arguments raised under this assignment

of error, it is overruled.

                         ASSIGNMENT OF ERROR IV

       {¶40} In his fourth assignment of error, Appellant contends that his

speedy trial rights under R.C. 2945.71 were violated as a matter of law. The

State contends that this assignment of error should be overruled because
Scioto App. No. 17CA3796                                                        31

Appellant was brought to trial within speedy trial limits. Based upon the

following, however, we disagree with the arguments of both parties.

      {¶41} R.C. 2945.73(B) states, “[u]pon motion made at or prior to the

commencement of trial, a person charged with an offense shall be

discharged if he is not brought to trial within the time required by sections

2945.71 and 2945.72 of the Revised Code.” This Court has previously

concluded that the statute requires the accused to file a motion to dismiss

based upon speedy trial grounds prior to trial. State v. Jones, 4th Dist.

Lawrence No. 07CA2, 2008-Ohio-304, ¶ 19; citing State v. Thompson, 97

Ohio App.3d 183, 186-187, 646 N.E.2d 499 (1994); see also State v. Ross,

4th Dist. Ross No. 04CA2780, 2005-Ohio-1888, ¶ 20. Here, Appellant does

not argue and there is no evidence in the record indicating that he filed a

motion to dismiss based upon speedy trial grounds prior to trial. His failure

to do so results in a waiver of the issue on appeal. Id.; see also State v.

Talley, 5th Dist. Richland No. 06CA93, 2007-Ohio-2902 (refusing to

conduct plain error analysis when defendant failed to file a motion to

dismiss on speedy trial grounds); State v. Hurst, 4th Dist. Washington No.

08CA43, 2009-Ohio-3127, ¶ 52; State v. Ross, 4th Dist. Ross No.

04CA2780, 2005-Ohio-1888, ¶ 19.
Scioto App. No. 17CA3796                                                           32

      {¶42} Accordingly, based upon the foregoing reasons, we hereby

overrule Appellant's fourth assignment of error.

                        ASSIGNMENT OF ERROR V

      {¶43} In his fifth assignment of error, Appellant contends that a

mistrial should have been declared due to improper selection of the alternate

juror at trial. We initially note that Appellant failed to request a mistrial at

the trial court level and has therefore forfeited the issue, absent plain error.

State v. Ellison, 2017-Ohio-284, 81 N.E.3d 853, ¶ 26; citing State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 152; State v. Fouts,

4th Dist. Washington No. 15CA25, 2016-Ohio-1104 ¶ 58 (“Failure to object

constitutes forfeiture of any challenges on appeal except for plain error”).

      {¶44} The test for plain error is stringent. State v. Mullins, 4th Dist.

Scioto No. 15CA3716, 2016-Ohio-5486, 2016 WL 4441250, ¶ 30. A party

claiming plain error has the burden of demonstrating that (1) an error

occurred, (2) the error was obvious, and (3) the error affected the outcome of

the trial. Id. at ¶ 30; citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2,

880 N.E.2d 31. “We will notice plain error ‘only to prevent a manifest

miscarriage of justice.’ ” Fouts at ¶ 59; quoting State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “Reversal is

warranted only if the outcome of the trial clearly would have been different
Scioto App. No. 17CA3796                                                          33

absent the error.” State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274

(2001).

      {¶45} As set forth above, this jury trial began with one judge, and had

to be completed by a visiting judge because the original judge was unable to

continue after the first day of trial, due to sudden illness or disability. A

review of the record indicates that this particular trial court's procedure

involves the seating of thirteen jurors instead of twelve for the entire trial,

based upon the rationale that alternate jurors who are selected prior to trial

may not pay close attention, and sometimes even sleep, during the trial.

Rather than identifying the alternate juror at the beginning of trial, the court

randomly draws a number out of a basket at the close of evidence and prior

to deliberations, and eliminates the juror whose number is drawn. In this

particular case, employing this procedure resulted in the elimination of the

only African-American on the panel as the alternate juror.

      {¶46} Further review of the record reveals that the original trial judge

explained this procedure on the record at the time the jury was initially

seated, and that Appellant failed to object to the procedure in general at that

time. Because thirteen jurors had already been seated when the visiting

judge took over the case, the new judge had to continue with this jury

procedure. The record further reveals that Appellant failed to object to the
Scioto App. No. 17CA3796                                                     34

visiting judge employing the court's procedure at the time the alternate juror

was actually eliminated just prior to deliberations. In fact, the record reveals

that Appellant did not object until it was determined that the juror to be

designated as the alternate was the only African-American on the jury.

Additionally, there is no evidence that Appellant moved the court for a

mistrial during the discussions that ensued on the record after the objection

was made.

      {¶47} During the discussion after the objection was made, the

following exchange occurred:

      "Mr. Meadows:       I know this is the way it's normally done,
                          but –

      The Court:          I know.

      Mr. Meadows:        -- just for the record I want to enter an
                          objection that we're

      The Court:          I know. I know.

      Mr. Meadows:        -- suddenly stricken the only African
                          American on the jury.

      Mr. Tieman:         I know.

      Mr. Meadows:        It raises -- if flies in the face of (inaudible)
                          and it's –

      The Court:          I know. This may be a good case to
                          challenge the system.
Scioto App. No. 17CA3796                                                       35

      Mr. Meadows:        It's a serious issue. If it had been one of the
                          other 12 jurors we wouldn't be standing
                          here.

      The Court:          I know.
      ***
      Mr. Meadows:        I -- I'll agree that's the procedure that
                          happened. However, you know in this case,
                          you know, we've never -- we -- out of all the
                          cases I've tried here, and I've tried a bunch
                          of them here, I've never had this situation
                          where an African American –

      Mr. Tieman:         Yes. Right.

      Mr. Meadows:        -- was stricken –

      The Court:          I understand. I understand.

      Mr. Meadows:        -- when I've got an African American client.

      The Court:          Yeah.

      Mr. Meadows:        So –

      Mr. Tieman:         I understand too. * * *"

Thus, it appears Appellant objected, not to the procedure in general, but to

the result of the procedure that caused the elimination of the only African-

American on the jury, noting that his client was also African American.

      {¶48} Despite the fact it appears defense counsel, the State and the

visiting judge were all uncomfortable with the procedure used, this Court

has concluded on two previous occasions that systems such as this do not
Scioto App. No. 17CA3796                                                      36

run afoul of Crim.R. 24. Crim.R. 24, which governs trial jurors, provides in

section (G)(1) "Alternate Jurors" as follows:

      "Non-Capital Cases. The court may direct that not more than
      six jurors in addition to the regular jury be called and impaneled
      to sit as alternate jurors. Alternate jurors in the order in which
      they are called shall replace jurors who, prior to the time the
      jury retires to consider its verdict, become or are found to be
      unable or disqualified to perform their duties. Alternate jurors
      shall be drawn in the same manner, have the same
      qualifications, be subject to the same examination and
      challenges, take the same oath, and have the same functions,
      powers, facilities, and privileges as the regular jurors. The court
      may retain alternate jurors after the jury retires to deliberate.
      The court must ensure that a retained alternate does not discuss
      the case with anyone until that alternate replaces a juror or is
      discharged. If an alternate replaces a juror after deliberations
      have begun, the court must instruct the jury to begin its
      deliberations anew. Each party is entitled to one peremptory
      challenge in addition to those otherwise allowed if one or two
      alternate jurors are to be impaneled, two peremptory challenges
      if three or four alternate jurors are to be impaneled, and three
      peremptory challenges if five or six alternative jurors are to be
      impaneled. The additional peremptory challenges may be used
      against an alternate juror only, and the other peremptory
      challenges allowed by this rule may not be used against an
      alternate juror."

      {¶49} In State v. Parish, 4th Dist. Washington Nos. 05CA14,

05CA15, 2005-Ohio-7109, this Court was presented with a very similar

question, which challenged the trial court's practice of using a computer

game to generate a random number in order to choose the alternate juror at

the end of the case. We ultimately held that although the trial court's

procedure was not ideal (suggesting that the better practice was "to draw a
Scioto App. No. 17CA3796                                                       37

random number from a pill bottle or a hat, etc."), it did not constitute error,

plain or otherwise. Id. at ¶ 19. We further found no error or violation of

Crim.R. 24 in selecting the juror at the end of the case, noting as follows:

      "In fact, the American Bar Association recommends selecting
      alternate jurors at the conclusion of the case. See 'American Bar
      Association, Adopted by the House of Delegates,' February 14,
      2005, Principle 11, Section G.7 (stating that '[t]he status of
      jurors as regular jurors or as alternates should be determined
      through random selection at the time for jury deliberation'). We
      agree with the trial court's rationale that selecting the alternate
      juror at the close of evidence rather than prior to opening
      statements encourages all jurors to pay careful attention to the
      evidence adduced at trial." Id. at ¶ 20.

We reached the same result in State v. Plessinger, 4th Dist. Washington No.

05CA48, 2006-Ohio-2594, ¶ 2 (summarily rejecting an identical argument

on the authority of Parish, supra.).

      {¶50} Here, the trial court used a more preferred method of drawing a

number out of a basket, as alluded to in Parish, rather than using a computer

game to generate a random number. Further, in light of our reasoning in

Parish, there are legitimate reasons to conclude waiting until the end of the

case to select the alternate juror, as demonstrated by the stance taken by the

American Bar Association. In light of the foregoing, we find no plain error

with respect to the trial court's procedure for selecting the alternate juror in

this case.
Scioto App. No. 17CA3796                                                       38

      {¶51} Appellant also argues that the trial court's alternate juror

selection procedure, in this case, deprived him of equal protection of the law,

much like the U.S. Supreme Court held in prohibiting preemptory challenges

for jurors based on race in the decision of Batson v. Kentucky, 476 U.S. 79,

106 S.Ct. 1712 (1986). In Batson, the United States Supreme Court held

that the Equal Protection Clause of the United States Constitution precludes

purposeful discrimination by the State in the exercise of its peremptory

challenges to exclude prospective jurors solely on account of their race. Id.

at 89. A court must apply a three-step test when considering a Batson claim.

State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61.

First, the defendant must make a prima facie case of racial discrimination.

Batson at 96–97. Second, if the defendant satisfies that burden, the

prosecution must provide a racially neutral explanation for the challenge. Id.

at 97–98. Third, the trial court must decide, based on all the circumstances,

whether the defendant has proved purposeful racial discrimination. Id. at 98.

At this stage, the court “must examine the prosecutor's challenges in context

to ensure that the reason is not merely pretextual.” State v. Frazier, 115 Ohio

St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65. The judge must “assess

the plausibility” of the prosecutor's reason for striking the juror “in light of

all evidence with a bearing on it.” Miller–El v. Dretke, 545 U.S. 231, 252,
Scioto App. No. 17CA3796                                                       39

125 S.Ct. 2317 (2005). A trial court's finding of no discriminatory intent

will not be reversed on appeal unless clearly erroneous. Frazier at ¶ 64; see

Miller–El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029 (2003). If a trial

court does err in applying Batson, the error is structural. United States v.

McFerron, 163 F.3d 952, 956 (6th Cir.1998).

      {¶52} Thus, the Batson decision dealt with preemptory challenges in

jury selection, not the random selection of an alternate juror prior to trial, a

juror which, here, had not been challenged on the basis of race and had

actually been seated on the jury. Batson aims to prevent "purposeful racial

discrimination," as opposed to the random selection of alternate jurors,

which may be eliminated by choosing a random number without regard to

the race of the juror. We cannot conclude that Batson is directly applicable

to the facts before us, or that the spirit of Batson is offended by the alternate

juror procedure at issue. We further note that Appellant failed to object on

Batson grounds at the trial court level and instead raises this particular

argument for the first time on appeal. Because Appellant did not raise this

issue during the trial court proceedings, he may not raise it for the first time

on appeal. State v. Kerns, 4th Dist. Washington No. 99CA30, 2000 WL

310357, *2 (Mar. 21, 2000); State v. Bing, 134 Ohio App.3d 444, 731

N.E.2d 266 (9th Dist.1999); See generally State v. Quarterman, 140 Ohio
Scioto App. No. 17CA3796                                                       40

St.3d 464, 2014–Ohio–4034, 19 N.E.3d 900, ¶ 15 (2014) (It is a well-

established rule that “ ‘an appellate court will not consider any error which

counsel for a party complaining of the trial court's judgment could have

called but did not call to the trial court's attention at a time when such error

could have been avoided or corrected by the trial court.’ ”).

      {¶53} In light of the foregoing, we find no error, let alone plain error,

in the trial court's failure to declare a mistrial related to the procedure

employed for eliminating alternate jurors prior to deliberations which

resulted, in this case, in the elimination of the only African-American juror

on the jury. Accordingly, Appellant's fifth assignment of error is overruled.

                        ASSIGNMENT OF ERROR VI

      {¶54} In his sixth assignment of error, Appellant contends he was

denied his Sixth Amendment right to a fair trial when his pro se motions

went unaddressed. More specifically, Appellant argues the trial court erred

in failing to address his pro se motion to suppress and motion for an

evidentiary hearing. Appellant suggests the fact that two different judges

presided over the trial may have resulted in confusion over what issues had

been addressed versus unaddressed. The State, however, argues that

Appellant, who was represented by counsel, was engaging in prohibited

“hybrid representation” by filing pro so motions and that the trial court
Scioto App. No. 17CA3796                                                     41

properly struck the motions from the record on April 11, 2017, just after

trial. For the following reasons, we agree with the State.

        {¶55} “It is well-established that although a defendant has the right to

counsel or the right to act pro se, a defendant does not have any right to

‘hybrid representation.’ ” State v. James, 4th Dist. Ross No. 13CA3393,

2014-Ohio-1702, ¶ 12; quoting State v. Martin, 103 Ohio St.3d 385, 2004–

Ohio–5471, 816 N.E.2d 227, paragraph one of the syllabus; see also State v.

Thompson, 33 Ohio St.3d 1, 6–7, 514 N.E.2d 407 (1987). As explained in

James, “[t]he right to counsel and the right to act pro se ‘are independent of

each other and may not be asserted simultaneously.’ ” Id; quoting Martin,

paragraph one of the syllabus.

        {¶56} This Court further explained as follows in State v. James at

¶ 13:

        “Appellate courts have determined that when counsel represents
        a criminal defendant, a trial court may not entertain a
        defendant's pro se motion. State v. Washington, 8th Dist.
        Cuyahoga Nos. 96565 and 96568, 2012–Ohio–1531), ¶ 11
        (‘Because [defendant] chose to proceed with legal
        representation, the court could not consider [defendant]'s
        motion to withdraw his plea, which his appointed counsel did
        not agree with.’); State v. Pizzarro, 8th Dist. Cuyahoga No.
        94849, 2011–Ohio–611, ¶ 9 (‘Had the trial court entertained
        defendant's pro se motion while defendant was simultaneously
        being represented by appointed counsel, this would have
        effectively constituted hybrid representation in violation of the
        established law.’); State v. Smith, 4th Dist. Highland No.
        09CA29, 2010–Ohio–4507, ¶ 100, quoting Thompson, 33 Ohio
Scioto App. No. 17CA3796                                                      42

      St.3d at 6–7 (concluding that trial court did not err by refusing
      to consider criminal defendant's pro se motions when counsel
      represented defendant, because criminal defendant ‘ “has no
      corresponding right to act as co-counsel on his own behalf’ ” ’);
      State v. Davis, 10th Dist. Franklin No. 05AP–193, 2006–Ohio–
      193, ¶ 12 (‘[W]here a defendant who is represented by counsel
      files pro se motions and there is no indication that defense
      counsel joins in those motions or indicates a need for the relief
      sought by the defendant pro se, such motions are not proper and
      the trial court may strike them from the record.’); State v.
      Greenleaf, 11th Dist. Portage No.2005–P–0017, 2006–Ohio–
      4317, ¶ 70, quoting Thompson, 33 Ohio St.3d at 6–7 (‘Once
      appellant accepts counsel's assistance and does not move the
      court to proceed pro se, he may not “act as co-counsel on his
      own behalf. ” ’).”

      {¶57} Here, Appellant was represented by counsel when he filed both

of his pro se motions below. Further, there is no indication from the record

before us that Appellant’s trial counsel joined in or adopted the motions.

Thus, Appellant’s pro se motions were not properly before the court. James

at ¶ 14. As set forth above, such “hybrid representation” is prohibited and

the trial court was not permitted to entertain the motions. As such, they

were properly stricken from the record. For these reasons, we find no merit

to Appellant’s sixth assignment of error. Accordingly, it is overruled.

                      ASSIGNMENT OF ERROR VII

      {¶58} In his seventh and final assignment of error, Appellant

contends cumulative error committed during his trial deprived him of a fair

trial and require reversal of his convictions. Under the doctrine of
Scioto App. No. 17CA3796                                                          43

cumulative error, “a conviction will be reversed where the cumulative effect

of errors in a trial deprives a defendant of the constitutional right to a fair

trial even though each of [the] numerous instances of trial court error does

not individually constitute cause for reversal.” State v. Garner, 74 Ohio

St.3d 49, 64, 656 N.E.2d 623 (1995). “Before we consider whether

‘cumulative errors' are present, we must first find that the trial court

committed multiple errors.” State v. Harrington, 4th Dist. No. 05CA3038,

2006-Ohio-4388, ¶ 57; citing Goff, 82 Ohio St.3d at 140, 694 N.E.2d 916.

      {¶59} As set forth above, with the exception of one finding of

harmless error under Appellant’s third assignment of error, we have found

no merit in any of the arguments raised by Appellant on appeal. Thus, we

have found no error, plain or otherwise, that changed the outcome of the trial

or that would amount to cumulative error. Accordingly, after reviewing the

entirety of the proceedings below, we do not find Appellant's convictions

should be reversed because of cumulative error. The judgment of the trial

court is affirmed.

                                                   JUDGMENT AFFIRMED.
Scioto App. No. 17CA3796                                                       44

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.

                                        For the Court,

                                 BY: ______________________________
                                     Matthew W. McFarland

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
