[Cite as State v. Palmer, 2018-Ohio-1266.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. William B. Hoffman, J.
-vs-
                                                   Case No. 17 CA 13
WILLIAM PALMER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 16 CR 556


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         March 30, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GARY BISHOP                                    WILLIAM T. CRAMER
PROSECUTING ATTORNEY                           470 Olde Worthington Road
JOSEPH C. SNYDER                               Suite 200
ASSISTANT PROSECUTOR                           Westerville, Ohio 43082
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 17 CA 13                                                          2

Wise, P. J.

        {¶1}   Appellant William Palmer appeals his convictions on one count of felonious

assault, two counts of kidnapping, and one count of theft against an elderly victim, entered

in the Richland County Common Pleas Court following a jury trial.

        {¶2}   Appellee is State of Ohio.

                        STATEMENT OF THE FACTS AND CASE

        {¶3}   Defendant-Appellant William Palmer was charged with one count of

felonious assault, in violation of R.C. §2903.11(A)(1), a second degree felony, one count

of kidnapping, in violation of R.C. §2905.01(B)(2) (substantial risk of serious physical

harm) and one count of kidnapping, in violation of R.C. §2905.01(A)(3) (to terrorize or

inflict serious physical harm), both first degree felonies. All three counts arose from an

incident that occurred on or about August 6, 2016, involving Palmer's girlfriend D.L.

        {¶4}   Appellant was also charged with theft, in violation of R.C. §2913.02, against

an elderly victim, in an amount over $1,000, a fourth degree felony. This count arose from

an unfinished roofing job which Appellant had taken money to do during the summer of

2016.

        {¶5}   The following testimony and evidence was presented at trial:

                                Felonious Assault and Kidnapping

        {¶6}   In June of 2016, D. L. and Appellant began a relationship. (T. at 256). During

their relationship, D.L. lived with Appellant at 302 Lenox. (T. at 262). Near the end of July,

Appellant cut her ear with a pocket knife to, in his mind, make sure she was being honest

with him. (T. at 258). The cut to her ear left a scar. (T. at 259). Through her brief
Richland County, Case No. 17 CA 13                                                             3


relationship with Appellant, D.L. was not allowed to use a phone or go anywhere without

his permission. (T. at 274-275).

       {¶7}    On the 6th of August, D.L. went out to eat with her parents and son for his

birthday. (T. at 260). When she got back home, Appellant became angry about a

Facebook message he had seen on her phone. Id. Appellant responded to this by gagging

D.L., tying her up, and hitting her with a billy club, flashlight, his fist, and a mirror. (T. at

260). Appellant hit her with the flashlight somewhere between 20 to 30 times. (T. at 266).

       {¶8}    The club was used to strike her legs repeatedly. (T. at 266). The club had

"Billy's Club" written on it. (T. at 453). Appellant tied D.L.’s hands with the cinch from a

robe and her feet with a leather belt. (T. at 262-263). She was hog-tied with her hands

and ankles bound together behind her back with her laying on her stomach. (T. at 262).

He also held a knife to her neck and demanded she tell him the truth, which he thought

she was withholding.. Appellant regularly carried this knife with him. (T. at 265). Appellant

kept D.L. tied up on a couch in the house for six hours. (T. at 263-264). During this time,

he threatened to kill her, threats that she believed he would carry out. (T. at 277).

       {¶9}    Eventually, Appellant untied D.L., but she did not have the opportunity to

leave until the next day. (T. at 267). Appellant allowed her to leave with a friend of hers in

order to get cigarettes and money for him, but instead she got dropped off in Shelby so

she could get money from her parents and a hotel room. (T. at 268). After three days, she

carne back to Mansfield to press charges. (T. at 269). D.L. did not immediately go to the

police because she just wanted to be away from him. (T. at 268). While D.L. was hiding

from Appellant, Appellant called a family friend of D.L.’s and threatened him in an attempt
Richland County, Case No. 17 CA 13                                                      4


to find her. (T. at 585). D.L. went to a friend's house on Seventh Avenue, but Appellant

found her there; however, but she would not let him into the house. (T. at 268).

       {¶10} On the 9th of August, 2016, D.L. contacted police and spoke with Officer

Kiner. (T. at 273). The same day, D.L. went to Mansfield Ohio Health to be treated for her

injuries. (T. at 273, 329). She was found to have a bruise on her right thigh, bruises to

both eyes and both ears, and a scrape on her left ear. (T. at 333).

       {¶11} Later that day, Appellant asked a family friend, William Spognardi, to take

him to a place on Seventh Avenue where he thought he might locate D.L. (T. at 349-350).

Spognardi dropped Appellant off and did not hear from him again until late afternoon. (T.

at 350). Appellant then asked him to come pick up him to take him back to his house. Id.

When Mr. Spognardi found him, Appellant was sprawled out on the front porch of a house

and needed help getting into the car. Id. Appellant wanted to go to a different place to

look for D.L. but Mr. Spognardi was only willing to take him back home. Id.

       {¶12} On the way, they noticed a SWAT team at Appellant's home. They stopped

at a McDonalds and Appellant asked Mr. Spognardi to take him to another house, but Mr.

Spognardi asked why the police were there. (T. at 351). Appellant then told him that it

was because he hurt D.L. and that was also why he was looking for her. (T. at 351, 364).

Mr. Spognardi then started driving Appellant back to the house when the police

surrounded them and Appellant was arrested. (T. at 351). When Appellant got out of the

car, he left his crack pipe and phone on the seat, which were recovered by police. (T. at

352). A box cutter was also found in his possession. (T. at 373).

       {¶13} When Appellant was questioned about D.L.'s injuries he insisted he was not

there when she was injured, and that she was always running around and doing things.
Richland County, Case No. 17 CA 13                                                       5


(T. at 451). But then he said that she never leaves his side and he cannot get anything

done because of it. Id. He told police that D.L.'s injuries happened before she went out to

lunch with her parents on the 6th, but her parents said that she did not have any black

eyes when they met her. Id.

       {¶14} After a search of Appellant's home, a couch cushion was recovered which

appeared to have a bloodstain on it and a flashlight. (T. at 388-389). Tests of the box

cutter found on Appellant when he was arrested and a mirror turned up the presence of

blood. (T. at 418). There was a 50/50 DNA mixture on the knife blade and hinge area

between a male and a female. D.L. could not be excluded from the mixture. (T. at 428).

Tests of the blood found on the mirror found that it was a match for D.L.

                                              Theft

       {¶15} In June of 2016, Kelly Chapman and Gilbert Sellers hired Appellant to fix a

roof on a property he rented in Butler. (T. at 488-492). Appellant went to the bank with

Mr. Sellers and Appellant was given $4,000 cash up front. (T. at 516). The first thing

Appellant was supposed to do was pay for a dumpster the following weak, but it did not

appear, and neither did Appellant. (T. at 493-494). Appellant told Mr. Chapman and Mr.

Sellers that his sisters had died in a car accident, causing him to be out of state. (T. at

494-495). More time passed until August when Appellant still had not started any of the

work, so Mr. Chapman and Mr. Sellers filed a police report. (T. at 495-496). Police

contacted Appellant, and he said he would begin work by the 5th of August. (T. at 549).

No work was ever performed on the property by Appellant. (T. at 498-499).

       {¶16} Following a jury trial, Palmer was convicted on all counts. The court merged

the second count of kidnapping into the first count. The court then sentenced Palmer to
Richland County, Case No. 17 CA 13                                                     6


eight (8) years for the felonious assault and eleven (11) years for the kidnapping, to be

served consecutively. The court also imposed twelve (12) months on the theft count to be

served concurrently to the other counts

      {¶17} Appellant now appeals, assigning the following errors for review:

                                 ASSIGNMENTS OF ERROR

      {¶18} “I. THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE

PROCESS AND A FAIR TRIAL BY EXCLUDING A WITNESS WHO COULD TESTIFY

THAT THE VICTIM ADMITTED SHE HAD FABRICATED HER CLAIMS AGAINST

APPELLANT.

      {¶19} “II. THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE

PROCESS AND A FAIR TRIAL BY EXCLUDING A WITNESS WHO COULD TESTIFY

THAT THE VICTIM PREVIOUSLY HARMED HERSELF AND BLAMED IT ON

SOMEONE ELSE.

      {¶20} “III. APPELLANT'S RIGHT TO DUE PROCESS AND THE RULES OF

EVIDENCE WERE VIOLATED WHEN THE PROSECUTION IMPROPERLY USED THE

VICTIM'S PRIOR STATEMENT TO THE POLICE ON DIRECT EXAMINATION TO

BOLSTER HER TESTIMONY.

      {¶21} “IV. APPELLANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF

COUNSEL WAS VIOLATED WHEN COUNSEL FAILED TO OBJECT TO THE

PROSECUTION'S IMPROPER USE OF THE VICTIM'S PRIOR STATEMENT.

      {¶22} “V. APPELLANTS RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE

VICTIM TOLD THE JURY THAT APPELLANT HAD ALREADY BEATEN THIRTY-ONE

COUNTS OF KIDNAPPING.
Richland County, Case No. 17 CA 13                                                       7


       {¶23} “VI. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO

UTILIZE A DEPOSITION IN THE PLACE OF A MISSING WITNESS.

       {¶24} “VII. APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL

WERE VIOLATED WHEN THE TRIAL COURT DENIED A CONTINUANCE OF TRIAL

TO PROVIDE APPELLANT WITH TIME TO LOCATE WITNESSES.

       {¶25} “VIII. APPELLANT'S RIGHT TO COUNSEL WAS VIOLATED WHEN THE

TRIAL COURT DENIED DEFENSE COUNSEL'S MOTION TO WITHDRAW.

       {¶26} “IX. APPELLANT'S RIGHTS TO DUE PROCESS WERE VIOLATED

WHEN     HE    SUFFERED       CONVICTIONS            FOR   FELONIOUS    ASSAULT       AND

KIDNAPPING THAT WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

       {¶27} “X. APPELLANT'S CONVICTIONS FOR ASSAULT AND KIDNAPPING

WERE NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

       {¶28} “XI. APPELLANT'S RIGHTS TO DUE PROCESS WERE VIOLATED

WHEN HE SUFFERED A CONVICTION FOR THEFT THAT WAS NOT SUPPORTED

BY SUFFICIENT EVIDENCE.

       {¶29} “XII. APPELLANT'S CONVICTION FOR THEFT WAS NOT SUPPORTED

BY THE WEIGHT OF THE EVIDENCE.

       {¶30} “XIII. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS

AND A FAIR TRIAL BY THE CUMULATIVE EFFECT OF THE ERRORS IN THIS CASE.

                                           I., II.

       {¶31} In his First and Second Assignments of Error, Appellant claims the trial court

erred in excluding witnesses Mark Stamper and Michael Heatherington from testifying at

trial. We disagree.
Richland County, Case No. 17 CA 13                                                        8


       {¶32} Here, the trial in this matter commenced on January 12, 2017. Appellant did

not disclose that he wanted to offer the testimony of Mark Stamper and Michael

Heatherington until January 17, 2017, after two days of testimony had been completed.

According to Appellant, Mr. Stamper would testify that Appellant (1) treated the victim

well, and (2) the victim’s testimony was fabricated. (T. at 708, 742-743). Michael

Heatherington was to testify that he had seen the victim harm herself and blame someone

else in the past. (T. at 742).

       {¶33} The trial court denied the request to call these witnesses finding that their

testimony was not relevant, that the victim had not been confronted with their testimony,

and that their disclosure was untimely and last minute. (T. at 747).

       {¶34} Although a criminal defendant has the right to present witness testimony on

his behalf, a trial court may “exclude such evidence when the orderly administration of

justice is threatened by the accused's failure to promptly disclose witnesses.” State v.

Moon, 74 Ohio App.3d 162, 169 (9th Dist.1991).

       {¶35} The rules of discovery, and more specifically Crim.R. 16, imbue trial courts

with the discretion to exclude testimony that is not disclosed in a timely manner in order

to prevent surprise and ensure a fair trial. State v. Barrios, 9th Dist. No. 06CA009065,

2007–Ohio–7025, ¶18. “Exclusion is a permissible sanction ‘as long as it would not

completely deny the defendant his constitutional right to present a defense.’ ” Id., quoting

State v. Sinkfield, 2d Dist. No. 18663, 2001 WL 1517314 (Nov. 30, 2001). A trial court's

decision to exclude testimony is a discretionary one, therefore we review a court's

decision to exclude evidence under an abuse of discretion standard of review. Barrios at

¶18. An abuse of discretion implies that the trial court's attitude was unreasonable,
Richland County, Case No. 17 CA 13                                                               9

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶36} Given our review of the record, we cannot conclude that the trial court

abused its discretion by excluding the testimony of these two witnesses. Appellant has

not shown that the trial court abused its discretion. The court excluded these witnesses

in order to avoid unfair surprise and to ensure a fair trial. See Barrios, 2007–Ohio–7025,

at ¶18. Additionally, the court's ruling did not completely deny Appellant his constitutional

right to present a defense. See Id. Appellant was still able to attack the credibility of the

victim through cross-examination.

       {¶37} Appellant’s First and Second Assignments of Error are denied.

                                                     III.

       {¶38} In his Third Assignment of Error, Appellant argues the trial court erred in

allowing the use of the victim’s prior statement to the police. We disagree.

       {¶39} Near the end of the victim’s testimony, the state presented her with a copy

of her written statement to the police. The prosecutor then proceeded to question the

victim about some of the details in her statement. Appellant argues that this was an

improper use of a prior written statement in contravention of Evid.R. 612, which provides:

             If a witness uses a writing to refresh memory for the purpose of

       testifying, either: (1) while testifying; or (2) before testifying, if the court in its

       discretion determines it is necessary in the interests of justice, an adverse

       party is entitled to have the writing produced at the hearing. The adverse

       party is also entitled to inspect it, to cross-examine the witness thereon, and

       to introduce in evidence those portions which relate to the testimony of the

       witness. If it is claimed that the writing contains matters not related to the
Richland County, Case No. 17 CA 13                                                         10


       subject matter of the testimony the court shall examine the writing in

       camera, excise any portions not so related, and order delivery of the

       remainder to the party entitled thereto. Any portion withheld over objections

       shall be preserved and made available to the appellate court in the event of

       an appeal. If a writing is not produced or delivered pursuant to order under

       this rule, the court shall make any order justice requires, except that in

       criminal cases when the prosecution elects not to comply, the order shall

       be one striking the testimony or, if the court in its discretion determines that

       the interests of justice so require, declaring a mistrial.

       {¶40} The written statement was not submitted into evidence.

       {¶41} Initially, we note Appellant failed to object to the use of the written statement

at trial. We therefore review the admission of the statements for plain error.

       {¶42} Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain errors or

defects affecting substantial rights” notwithstanding an accused's failure to meet his

obligation to bring those errors to the attention of the trial court. However, the accused

bears the burden to demonstrate plain error on the record, State v. Quarterman, 140 Ohio

St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a

deviation from a legal rule” that constitutes “an ‘obvious' defect in the trial proceedings,”

State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

       {¶43} Even if the error is obvious, it must have affected substantial rights, and

“[w]e have interpreted this aspect of the rule to mean that the trial court's error must have

affected the outcome of the trial.” Id. The Ohio Supreme Court recently clarified in State

v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is
Richland County, Case No. 17 CA 13                                                         11

“required to demonstrate a reasonable probability that the error resulted in prejudice—

the same deferential standard for reviewing ineffective assistance of counsel claims.”

(Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81–

83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Accord, State v. Thomas, ––– Ohio St.3d –

–––, 2017-Ohio-8011, ––– N.E.3d ––––, ¶ 32–34.

       {¶44} If the accused shows that the trial court committed plain error affecting the

outcome of the proceeding, an appellate court is not required to correct it; the Supreme

Court has “admonish[ed] courts to notice plain error ‘with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ”

(Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accord, State v. Thomas, –

–– Ohio St.3d ––––, 2017-Ohio-8011, ––– N.E.3d ––––, ¶ 32–34.

       {¶45} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991). Evid.R. 402 states that all relevant evidence is admissible. “Relevant

evidence is defined 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.”

       {¶46} Upon review, we find admission of the statements does not rise to the level

of plain error because the outcome of the trial would not have been different absent its

admission. Plain error or defect under Crim.R. 52(B) does not occur unless, but for the

error, the outcome of the trial clearly would have been otherwise. State v. Long, 53 Ohio
Richland County, Case No. 17 CA 13                                                      12


St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. Here, we find that this

testimony was mainly cumulative as the victim had already testified as to what happened.

Further, Appellant cross-examined the victim with regard to the written statement. (T. at

288-289).

       {¶47} Also, the victim’s credibility was an issue in this case and had been

challenged by Appellant during opening statements. (T. at 224).

       {¶48} Evid.R. 801(D)(1)(b) provides that a statement is not hearsay, and is

therefore admissible if it is a prior statement by a witness that is “consistent with

declarant's testimony and is offered to rebut an express or implied charge against

declarant of recent fabrication or improper influence or motive[.]”

       {¶49} It has been consistently held that attacking a victim's credibility during

opening statements is grounds for permitting a prior consistent statement into evidence

pursuant to Evid.R. 801(D)(1)(b). State v. Hunt, 10th Dist. No. 12AP–103, 2013–Ohio–

5326, ¶ 39 (“Defense counsel's opening statement implied that Lewis had been untruthful

in her statements to police. This was an allegation of recent fabrication or improper

influence that allowed the state to introduce Lewis's prior consistent statements to

rehabilitate her testimony.”); State v. Crawford, 5th Dist. No. 07 CA 116, 2008–Ohio–

6260, ¶ 64 (“It has previously been held that such implications [of fabrication] during

opening statements are sufficient to allow the State's use of Evid.R. 801(D)(1)(b)”); State

v. Abdussatar, 8th Dist. No. 86406, 2006–Ohio–803, ¶ 15 (“Attacking a victim's credibility

during opening statement has been found to constitute sufficient grounds for permitting a

prior consistent statement into evidence pursuant to Evid.R. 801(D)(1)(b). Therefore,

because defense counsel contended the victim fabricated the rape, and because the
Richland County, Case No. 17 CA 13                                                         13


victim testified and was subject to cross-examination, the trial court did not err by allowing

the letter to be admitted into evidence.”)

       {¶50} The Twelfth District explained when a court may admit a prior

consistent statement:

             For the rule to apply, the declarant must be subject to cross-

        examination and the statement must be offered to rebut a charge that the

        declarant lied or was improperly influenced in his testimony. [State v.]

        Williams, [12th Dist. No. CA2007–04–087,] 2008–Ohio–3729, ¶ 12. To be

        admissible, prior consistent statements must have been made before the

        existence of any motive or influence to falsify testimony. Id. In determining

        whether to admit a prior consistent statement for rebuttal purposes, a trial

        court should take a generous view of the entire trial setting to determine if

        there was sufficient impeachment of the witness to amount to a charge of

        fabrication or improper influence or motivation. [State v.] Grays, [12th Dist.

        No. CA2001–02–007, 2001–Ohio–8679] at 12.

       {¶51} State v. Smith, 12th Dist. No. CA2009–02–038, 2010–Ohio–1721, ¶

103.

       {¶52} Based on the foregoing, we find no plain error was committed by the trial

court in allowing said questioning and testimony.

       {¶53} Appellant’s Third Assignment of Error is denied

                                                 IV.

       {¶54} In his Fourth Assignment of Error, Appellant argues he was denied the

effective assistance of counsel. We disagree.
Richland County, Case No. 17 CA 13                                                     14

       {¶55} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel's error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, Appellant must show that counsel's conduct so undermined

the proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id.

       {¶56} Here, Appellant argues that his trial counsel was ineffective in failing to

object to the state’s use of the victim’s prior written statement.

       {¶57} Competent counsel may reasonably hesitate to object to potential errors in

the jury's presence because objections may be considered bothersome by the jury and

may tend to interrupt the flow of a trial. State v. Howell, 5th Dist. Delaware No. 15 CAA

12 0098, 2016–Ohio–7749, ¶ 39, appeal not allowed, 150 Ohio St.3d 1409, 2017–Ohio–

6964, 78 N.E.3d 909. Thus counsel's failure to object may have been sound trial strategy.

       {¶58} Further, for the reasons set forth in Assignment of Error III, Appellant has

not demonstrated the result of the trial would have been different.

       {¶59} Appellant’s Fourth Assignment of Error is denied.

                                                 V.

       {¶60} In his Fifth Assignment of Error, Appellant argues that he was denied a fair

trial when the victim testified that Appellant had beaten thirty-one counts of kidnapping

previously. We disagree.
Richland County, Case No. 17 CA 13                                                       15


       {¶61} The following exchange took place during the victim’s testimony:

               Q: Were you scared of Billy finding you?

               A: Yes.

               Q: What did you think would happen if he did?

               A: That if he didn’t beat me, I would be killed.

               Q: Was there a reason you didn’t go to the police right away?

               A: I just wanted to be away. He’s already beaten 31 counts of kidnapping.

       I didn’t want to be the next one to get - -

       {¶62} At this point, the state immediately moved to strike and requested the court

to give the jury a curative instruction. The trial court struck the comment and gave a

curative instruction to the jury:

              Court: Whatever she said then is not testimony in this case. It is not

       factual and it is not going to be accepted as factual in this case.

       …

              You are instructed to disregard her last comment. It is not factual.

       (T. at 269-270)

       {¶63} A jury is presumed to have followed the instructions, including curative

instructions, given by a trial judge. State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623,

634 (1995); State v. Loza, 71 Ohio St.3d 61, 75, 641 N.E.2d 1082, 1100 (1994); State v.

Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 93. Curative instructions

are presumed to be an effective way to remedy errors that occur during the trial. State v.

Treesh, 90 Ohio St.3d 460, 480, 2001–Ohio–4, 739 N.E.2d 749.

       {¶64} Appellant has not pointed to any evidence in the record that the jury failed
Richland County, Case No. 17 CA 13                                                         16

to do so in this case. State v. James, 5th Dist. Stark No. 2016CA00144, 2017-Ohio-7861.

The comments were isolated in the trial and were not so prejudicial that an impartial

verdict could not be reached. Further, the statement was immediately followed by a short,

authoritative instruction to the jury to disregard the statement, which was sufficient to

remedy any possible error regarding the struck testimony. Further, based on the

remainder of the victim’s testimony, together with the other evidence, we do not find the

statement was so prejudicial that an impartial verdict could not be reached.

       {¶65} Accordingly, Appellant's Fifth Assignment of Error is overruled.

                                                 VI.

       {¶66} In his Sixth Assignment of Error, Appellant argues the trial court erred in

permitting the State to use an unavailable witness’ deposition at trial. We disagree.

       {¶67} In general, a witness must testify at trial in person, but Crim.R. 5 allows for

the use of a videotaped deposition if a witness is unavailable, as defined in Evid.R.

804(A), which means that the party offering the deposition has been unable to procure

the attendance of the witness by subpoena, or that the witness is out of state. State v.

Austin (1998), 131 Ohio App.3d 329, 338, 722 N.E.2d 555.

       {¶68} At the time of trial, the witness, Mr. Sellers, refused to return from Florida to

testify because he was suffering from a number of health conditions which were

exacerbated by the cold weather and had recently undergone surgery for an aneurysm.

(T. at 524-525). Mr. Sellers was offered free airfare to return to Ohio for the trial but

refused. Appellant’s counsel was present at the deposition and had an opportunity to

cross-examine the witness. Therefore, the use of the witness’ videotaped deposition

satisfied the requirements of Crim.R. 15.
Richland County, Case No. 17 CA 13                                                       17


       {¶69} Based on the foregoing, we find the trial court did not err in admitting the

witness’ deposition testimony.

       {¶70} Appellant’s Sixth Assignment of Error is overruled.

                                               VII.

       {¶71} In his Seventh Assignment of Error, Appellant argues the trial court erred in

denying his motion for continuance. We disagree.

       {¶72} “The grant or denial of a continuance is a matter which is entrusted to the

broad, sound discretion of the trial judge.” State v. Unger (1981), 67 Ohio St.2d 65, 67,

423 N.E.2d 1078. Therefore, an appellate court must not reverse a trial court's decision

to deny a motion for continuance unless it finds that the trial court abused its discretion.

Id.; State v. Wheat, 5th Dist. Licking App. No. 2003–CA–00057, 2004–Ohio–2088 The

term “abuse of discretion” connotes more than an error of law or judgment; it implies that

the court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams

(1980), 62 Ohio St.2d 151, 157.

       {¶73} In evaluating whether the trial court has abused its discretion in denying a

continuance, appellate courts apply a balancing test which takes into account a variety of

competing considerations, including the length of the delay requested; whether other

continuances have been requested and received; the inconvenience to litigants,

witnesses, opposing counsel and the court; whether the requested delay is for legitimate

reasons or whether it is dilatory, purposeful, or contrived; and whether the defendant

contributed to the circumstance which gives rise to the request for a continuance. State

v. Unger, 67 Ohio St.2d 65, 67–68, 423 N.E.2d 1078 (1981).
Richland County, Case No. 17 CA 13                                                         18


       {¶74} In the instant case, Appellant was arrested on August 9, 2016 and indicted

September 15, 2016. Appellant was appointed counsel on September 27, 2016, and trial

was initially scheduled for October 27, 2016. Defense counsel moved for a continuance

of trial to allow him time to retain an investigator and locate witnesses. The trial was

rescheduled to December 15, 2016. Counsel moved for a second trial continuance to

allow him additional time to find an appropriate investigator and give him time to work.

The trial was then continued to January 12, 2017. On January 5, 2017, defense counsel

filed a third motion for a continuance, stating that he was still waiting on the Bill of

Information and certain discovery which had been requested from the State of Ohio. A

hearing was conducted on January 10, 2017, wherein the motion to continue was

discussed. At said hearing, it was noted that the requested discovery had been provided

to Appellant one day after his motion. Appellant argued that he needed additional time

to locate necessary witnesses. (T. at 41). After additional discussions with Appellant and

his counsel, the trial court denied Appellant’s motion to continue the trial for a third time.

       {¶75} Upon consideration of the Unger factors, we do not find the trial court

abused its discretion. As set forth above, this case was continued on two prior occasions

at the request of Appellant for the same reasons as stated in this motion.

       {¶76} Based on the foregoing, we find the trial court did not err in denying

Appellant’s third request for a continuance of trial.

       {¶77} Appellant’s Seventh Assignment of Error is overruled.

                                                VIII.

       {¶78} In his Eighth Assignment of Error, Appellant argues the trial court erred in

denying his trial counsel’s request to withdraw. We disagree.
Richland County, Case No. 17 CA 13                                                         19


       {¶79} A trial court's decision to grant or deny an attorney's motion to withdraw

from representing a client will not be disturbed on appeal absent an abuse of discretion.

McGraw v. Convenient Food Mart (June 18, 1999), Lake App. No. 97-L-271, unreported

citing Bennett v. Bennett (1993), 86 Ohio App.3d 343, 347, 620 N.E.2d 1023. Courts are

reluctant to approve withdrawal of counsel on the eve of trial or when the client will be left

unrepresented at trial.” McGraw, supra, quoting Guttenberg & Snyder, The Law of

Professional Responsibility in Ohio (1992), 79.

       {¶80} To discharge a court-appointed attorney, the defendant must show “ ‘a

breakdown in the attorney-client relationship of such magnitude as to jeopardize the

defendant's right to effective assistance of counsel.’ ” State v. Coleman, 37 Ohio St.3d

286, 292, 525 N.E.2d 792, 798–99 (1988) citing People v. Robles (1970), 2 Cal.3d 205,

215, 85 Cal.Rptr. 166, 173, 466 P.2d 710, 717.

       {¶81} Here, Appellant has not established that such a breakdown occurred.

Indeed, our review of the record indicates Appellant's counsel and the hired investigator

were doing their best in locating the witnesses with the information provided to them by

Appellant. (T. at 12, 15-16). During the hearing on January 10, 2017, the trial court stated

that it appeared that Appellant’s counsel was vigorously pursuing a defense on

Appellant’s behalf. (T. at 1-6).

       {¶82} For these reasons, we do not find any abuse of discretion by the trial court.

We hold appellant's argument is without merit.

       {¶83} Appellant’s Eighth Assignment of Error is overruled.
Richland County, Case No. 17 CA 13                                                        20


                                              IX., X.,

       {¶84} In his Ninth and Tenth Assignments of Error, Appellant argues that his

convictions for felonious assault and kidnapping were against the manifest weight and

sufficiency of the evidence. We disagree.

       {¶85} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. The 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.”

       {¶86} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs
Richland County, Case No. 17 CA 13                                                      21

heavily against the conviction.” Id.

       {¶87} Here, Appellant argues that his convictions for felonious assault and

kidnapping are based on the testimony of the victim who was not credible because she

was a drug user at the time the offenses occurred. Appellant does not further explain the

relevance of this information to his convictions. Appellant also argues that there were

inconsistencies with her prior statements and with other witnesses.

       {¶88} Upon review, we find that the jury had before it the testimony of the victim

wherein she states that Appellant assaulted her and cut her with a knife and a mirror and

tied her up and restrained her for approximately six (6) hours, the physical evidence

showing the scar on the victim’s ear, DNA evidence indicating that it was the victim’s

blood on the mirror and indicating that the blood on the knife belonged to a female and

that the victim could not be excluded as the source. (T. at 420, 428). Further, the victim

did admit to lying at the preliminary hearing with regard to walking to Motomart instead of

being driven to her parents’ house and then to a friend’s house. (T. at 301-302).

       {¶89} It is axiomatic that the weight of the evidence and the credibility of the

witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 231,

2002–Ohio–2126, 767 N.E.2d 216, ¶ 79. Upon our review of the record, we find

appellant's convictions for kidnapping, and felonious assault are supported by sufficient

evidence. We further find the jury did not clearly lose its way and create a manifest

miscarriage of justice requiring that Appellant's convictions be reversed and a new trial

ordered. Appellant's convictions upon those offenses are not against the manifest weight

of the evidence.

       {¶90} Appellant’s Ninth and Tenth Assignments of Error are overruled.
Richland County, Case No. 17 CA 13                                                       22


                                             XI., XII.

       {¶91} In his Eleventh and Twelfth Assignment of Error, Appellant argues that his

conviction for theft was against the manifest weight and sufficiency of the evidence. We

disagree.

       {¶92} Here, Appellant argues that there was insufficient evidence to show that he

did not intend to complete the roofing job for Chapman and Sellers. Appellant further

argues that he was prevented from starting the job due to his arrest and incarceration.

       {¶93} At trial, evidence was presented to the jury that Appellant requested and

was given $4,000 from Mr. Sellers and Mr. Chapman to fix a roof. (T. at 516). Mr. Sellers

testified that Appellant was to start the job the following week by having a dumpster

delivered, which never happened. Id. A month passed and Appellant had still not begun

the job. Id. After numerous attempts to reach Appellant, Mr. Chapman finally was able to

get in touch with him and was told by Appellant that the delay was due to the death of his

sisters who lived out of state. (T. at 494). When no work had commenced by the end of

July, Mr. Chapman and Mr. Sellers filed a police report. (T. at 548). Appellant never

commenced work, nor did he return the money to the victims. (T. at 499, 523).

       {¶94} Based on the above, the jury found that Appellant was guilty of theft by

taking money by deception for a job he did not intend to complete.

       {¶95} Again, the weight of the evidence and the credibility of the witnesses are

determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002–Ohio–

2126, 767 N.E.2d 216, ¶ 79. Upon our review of the record, we find appellant's conviction

for theft is supported by sufficient evidence. We further find the jury did not clearly lose

its way and create a manifest miscarriage of justice requiring that Appellant's conviction
Richland County, Case No. 17 CA 13                                                          23


be reversed and a new trial ordered. Appellant's conviction is not against the manifest

weight of the evidence.

       {¶96} Appellant’s Eleventh and Twelfth Assignments of Error are overruled.

                                                XIII.

       {¶97} In his Thirteenth Assignment of Error, Appellant argues that the cumulative

effect of the errors in this case deprived him of his rights to due process and a fair trial.

       {¶98} In State v. Brown, 100 Ohio St.3d 51, 2003–Ohio–5059, 796 N.E.2d 506,

the Ohio Supreme Court recognized the doctrine of cumulative error. However, as

explained in State v. Bethel, 110 Ohio St.3d 416, 2006–Ohio–4853, 854 N.E.2d 150, ¶

197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp, 105

Ohio St.3d 104, 2004–Ohio–7008, 822 N.E.2d 1239, ¶ 103.

       {¶99} Here, Appellant cites the doctrine of cumulative error, lists or incorporates

the previous assignments of error, and gives no analysis or explanation as to why or how

the errors have had a prejudicial cumulative effect. Thus, this assignment of error has no

substance under Bethel and Sapp.

       {¶100} Further, where we have found that the trial court did not err, cumulative

error is simply inapplicable. State v. Carter, 5th Dist. Stark No. 2002CA00125, 2003–

Ohio–1313, ¶ 37. To the extent that we have found that any claimed error of the trial court

was harmless, or that claimed error did not rise to the level of plain error, we conclude

that the cumulative effect of such claimed errors is also harmless because taken together,

they did not materially affect the verdict. State v. Leonard, 104 Ohio St.3d 54, 89–90,

2004–Ohio–6235, 818 N.E.2d 229, 270 at ¶ 185.
Richland County, Case No. 17 CA 13                                                24


       {¶101} As this case does not involve multiple instances of error, Appellant’s

thirteenth assignment of error is overruled.

       {¶102} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.


By: Wise, P. J.

Gwin, J., and

Hoffman, J., concur.




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