         [Cite as State v. Trowbridge, 2013-Ohio-1749.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO                                     :       APPEAL NO. C-110541
                                                          TRIAL NO. B-1101843
        Plaintiff-Appellee,                       :

  vs.                                             :
                                                             O P I N I O N.
SHANNON TROWBRIDGE,                               :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 1, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.




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



CUNNINGHAM, Judge.


       {¶1}   Shannon Trowbridge appeals the judgment of the Hamilton County

Court of Common Pleas convicting her on one count of aggravated robbery, with a

firearm specification, and one count of having a weapon while under a disability, and

sentencing her to an aggregate term of 15 years in prison.       For the reasons that

follow, we affirm the trial court’s judgment.

                     I. Background Facts and Procedure

       {¶2}   On January 26, 2011, the BP gas station market on Harrison Avenue in

Cincinnati was robbed. Eyewitnesses described the suspect as a woman with a mole

or spot on her face, wearing a loose fitting yellow hoodie, white shoes, and blue

pants, and holding what appeared to be a gun under a tan jacket drapped across her

arm. The robbery and the robber’s image were captured on the store’s surveillance

camera, but the woman’s facial features were not clearly visable.

       {¶3}   Linda Cox, the assistant manager of the store, was working the cash

register when the robber ordered her to give all the money inside and threatened “to

blow her head off” if she screamed or made a wrong move.            Another employee,

Jasmine Kendrick, was on the telephone after just finishing her shift. When the

robber saw her, she told Kendrick to “hang up the phone before I blow your head

off.” Both Cox and Kendrick recalled that the robber said that she had “just got[ten]

out of Marysville for doing the same thing” and that she would shoot them without

hesitation. And both were able to see most of the robber’s face at a close range.

       {¶4}   Christopher Keairns, a customer, walked into the BP market as the

robbery was taking place. According to Keairns, the robber, who had money in one

hand and what appeared to be a gun in the other, turned to him before backing out of

the store. She said, “If anyone follows me out the door, I’m going to shoot this place




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                     OHIO FIRST DISTRICT COURT OF APPEALS



up.” Keairns also saw the robber’s face at a close range, although it was partially

obstructed by the hood of her sweatshirt.

       {¶5}   After the robber left the store with $413 from the cash register,

Kendrick called 911, and Cox pushed the store’s panic buttons. Officer Lewis Arnold

responded to the robbery and received descriptions of the suspect from Cox,

Kendrick, and Keairns.      Arnold discovered clothing matching the eyewitnesses’

descriptions of the suspect’s attire in a nearby building, and collected the clothing as

evidence.

       {¶6}   Cincinnati Police Specialist Les Mendes was assigned to the case.

Based on Cox’s and Kendrick’s statements that the robber claimed to have been

recently released from “Marysville,” Mendes requested a list of any former inmates at

the Ohio Reformatory for Women located in Marysville, Ohio, who had recently been

released to the area of the robbery. The Adult Parole Authority provided Mendes

with only one name—Shannon Trowbridge.              When Mendes ran Trowbridge’s

information through his database, he learned that her physical characteristics,

including a mole or mark on her face, matched the descriptions provided by Cox,

Kendrick, and Keairns, and that Trowbridge lived near the BP market that had been

robbed.

       {¶7}   Cox, Kendrick, and Keairns all identified Trowbridge as the robber in a

pretrial photographic lineup administered by a blind administrator. But none of the

DNA tested from the items of clothing recovered near the scene of the crime matched

Trowbridge’s DNA.

       {¶8}   The grand jury returned an indictment charging Trowbridge with

aggravated robbery, robbery, and having weapons while under a disability. The

matter proceded to a jury trial.

       {¶9}   At trial, the state presented the surveillance video of the robbery, still

photographs derived from the video of the offense, and the testimony of the three



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                       OHIO FIRST DISTRICT COURT OF APPEALS



eyewitnesses who had viewed the robber at a close range inside the BP market. Cox,

Kendrick, and Keairns each unequivocally identified Trowbridge as the robber and

testified that they had identified her in a pretrial photographic lineup. They further

testified that Trowbridge had threatened to harm them with what appeared to be a

gun covered up by a jacket. Cox and Kendrick also testified, without objection, that

the robber had bolstered her threats by telling them that she had just been released

from “Marysville” for doing the “same thing.”

          {¶10} Mendes testified about the investigation that led him to Trowbridge,
including Cox’s and Kendrick’s statements that the robber claimed to have been

recently released from the Marysville reformatory. He conceded that Trowbridge’s

DNA was not found on any of the clothing that the police recovered near the scene,

but he explained that he could not conclude that she had not worn them based on

that fact. He arrived at this conclusion after taking into account that Trowbridge had

worn the items for a short time on a cold day and that the surveillance video

demontrated that the clothing was loose fitting.

          {¶11} After the state presented its last witness, but before it had offered its
exhibits into evidence, Trowbridge prematurely moved under Crim.R. 29(A) for an

acquittal on all charges. The court began to rule on the motion and asked the state

whether the parties had entered into a stipulation concerning the weapons-under-a-

disability offense. The prosecutor informed the court that Trowbridge had stipulated

that she had been convicted of burglary in 2008. The trial court then denied the

Crim.R. 29 motion and admitted the state’s exhibits into evidence, including a

certified copy of Trowbridge’s 2008 judgment of convicton for burglary in violation

of R.C. 2911.12(A)(2). The state then rested. Trowbridge offered into evidence

several exhibits that she had used in cross-examining the state’s witnesses and then

rested.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



         {¶12} The jury ultimately found Trowbridge guilty of all offenses. The trial
court sentenced Trowbridge to ten years for the aggravated robbery offense, three

years for the accompanying firearm specification, and two years for the weapons-

under-a-disability offense.       The court merged the robbery offense into the

aggravated-robbery offense. The sentences were to be served consecutively, for an

aggregate term of 15 years.

          II. Plain Error—Hearsay and Evidence of other Bad Acts

         {¶13} In her first assignment of error, Trowbridge argues that the trial court
erred by repeatedly allowing testimony from Cox, Kendrick, and Officer Mendes that

she had previously been imprisoned in Marysville for another crime.1 Trowbridge

generally argues that this testimony was inadmissible under the rules of evidence

because it was hearsay, that it was inadmissible under the rules of evidence and R.C.

2945.59 because it constituted evidence of prior bad acts, and that it was

inadmissible under the rules of evidence because the probative value of the evidence

was substantially outweighed by the danger that the jury would base its finding of

guilt on the forbidden inference.

         {¶14} Trowbridge concedes that trial counsel failed to object to any of this
testimony, thus we apply a plain-error analysis. State v. Lewis, 1st Dist. Nos. C-

050989 and C-060010, 2007-Ohio-1485, ¶ 39, citing Evid.R. 103(A)(1) and (D) and

Crim.R. 52(B). The Ohio Supreme Court has set forth the standard for noticing plain

error:

          First, there must be an error, i.e., a deviation from the legal rule. * *

          * Second, the error must be plain. To be ‘plain’ * * * an error must be

          an ‘obvious’ defect in the trial proceedings. * * * Third, the error

          must have affected ‘substantial rights.’ We have interpreted this



1 Trowbridge also claims that Officer Mendes testified about “[her] probation officer,” but the
record does not support this claim.


                                              5
                    OHIO FIRST DISTRICT COURT OF APPEALS



        aspect of the rule to mean that the trial court’s error must have

        affected the outcome of the trial.

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16, quoting

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

                                      A. Hearsay

       {¶15} “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).

       {¶16} In this case, Cox and Kendrick both identified Trowbridge as the
person who stated in their presence that she had been previously incarcerated in

Marysville for a similar act. Although this testimony was offered in part to show the

impact of the robber’s statement on Cox and Kendrick, i.e., why they feared she

would shoot them, the state also offered the statement in evidence for its truth—that

the robber had recently been released from the Marysville reformatory. Despite this

use, we conclude that Cox’s and Kendrick’s testimony was not hearsay.

       {¶17} The rules of evidence provide that a statement is not hearsay if the
statement “is offered against a party” and it is “the party’s own statement.” Evid.R.

801(D)(2)(a).   Here Trowbridge was a party-defendant, and the testimony was

offered against her at trial. Thus Cox’s and Kendrick’s testimony concerning the

statement that they unequivocally attributed to Trowbridge qualified as the

admission of a party opponent as defined in Evid.R. 801(D)(2)(a).       See State v.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 112 (“[a]

defendant’s own out-of-court statements, offered against him at trial, are not

hearsay”); State v. Williams, 10th Dist. No. 03AP-287, 2003-Ohio-6663, ¶ 17.

Therefore, Cox’s and Kendrick’s testimony concerning Trowbridge’s statement was

not hearsay, and it was not inadmissible on hearsay grounds.




                                             6
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18} Officer Mendes’s testimony, however, involved Cox’s and Kendrick’s
statements to him that the robber indicated she had recently “ ‘got[ten] out of

Marysville for [doing] the same thing.’ ” This testimony would be hearsay if it were

offered to prove the truth of the matter asserted. But Officer Mendes’s testimony

was offered to explain his course of investigation; i.e., why he sought information

about former inmates at the reformatory in Marysville who had been recently

released to the area of the robbery and how he came to suspect Trowbridge. “Where

statements are offered to explain an officer’s conduct while investigating a crime,

such statements are not hearsay.” State v. Blevins, 36 Ohio App.3d 147, 149, 521

N.E.2d 1105 (10th Dist.1987), citing State v. Thomas, 61 Ohio St.2d 223, 232, 400

N.E.2d 401 (1980). Our review demonstrates that Officer Mendes’s testimony was

admissible for this purpose. Id. at 149-150.

                             B. Other-Act Evidence

       {¶19} Trowbridge also argues that the admission of this testimony violated
Evid.R. 404(B) and the related statute R.C. 2945.59, as well as Evid.R. 403(A).

       {¶20} “Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Evid.R. 404(B); see R.C. 2945.59. Though offered for an admissible purpose, the

evidence must be excluded if the trial court determines that the probative value of

the evidence is substantially outweighed by the danger of unfair prejudice, the

confusion of the issues, or misleading the jury. Evid.R. 403(A).

       {¶21} The state argues that these statements were admitted for proper
purposes under Evid.R. 404(B). We agree. The testimony was admissible to prove

Trowbridge’s identity and intent and to establish the “threat” element of the

underlying theft offense and the firearm specification.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} Here Kendrick and Cox testified that the robber told them that she had
just been released from “Marysville.” Detective Mendes testified that his

investigation revealed that Trowbridge had been recently released from the

Reformatory for Women located in Marysville, Ohio, and that she was the only

inmate recently released to the area of the robbery. Because Trowbridge’s admission

that she had recently been released from “Marysville” furthered the state’s

identification of Trowbridge as the BP market robber, the evidence was admissible

for this limited purpose.

       {¶23} Additionally, Kendrick and Cox testified that the robber’s claim to a
prior criminal history heightened their fear that she would have shot them had they

not cooperated with the robbery.     Thus, the evidence tended to show Trowbridge’s

intent and the “threat” element of the offenses, and it was admissible for these

limited purposes. See Evid.R. 404(B); R.C. 2945.59; State v. Wilson, 8th Dist. No.

92148, 2010-Ohio-550.

       {¶24} Trowbridge’s argument that the testimony was prejudicial and should
have been excluded under Evid.R. 403(A) is equally untenable. This rule provides

for the exclusion of relevant evidence when its probative value is substantially

outweighed by the danger of “unfair” prejudice, of confusion of the issues, or of

misleading the jury. Generally, “unfairly prejudicial” evidence appeals to the jurors’

emotions rather than to their intellect. See State v. Crotts, 104 Ohio St.3d 43, 437,

2004-Ohio-6550, 820 N.E.2d 302, ¶ 24.

       {¶25} Trowbridge, by failing to object below, deprived the trial court of the
opportunity to make the subjective determination of whether the challenged

evidence was unfairly prejudicial.   See id. at ¶ 25. And although we do not doubt

that this testimony prejudiced Trowbridge, we cannot say that it did so unfairly. The

state did not use this evidence to appeal to the jurors’ emotions, but to bolster its

identification evidence, which was diminished by the results of the DNA testing, and



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                     OHIO FIRST DISTRICT COURT OF APPEALS



to demonstrate Trowbridge’s intent to use the firearm, even though she had

concealed it under a jacket during the robbery.       Therefore, we conclude that the

probative value was not substantially outweighed by the danger of unfair prejudice.

       {¶26} In    conclusion,    because    the   challenged   testimony     related   to

Trowbridge’s prior imprisonment in “Marysville” for doing the “same thing” was

admissible, Trowbridge has failed to demonstrate plain error.           Accordingly, we

overrule the first assignment of error.

                            III. Identifiable Jail Clothing

       {¶27} In her second assignment of error, Trowbridge contends that the trial
court prejudiced her right to a fair trial when it failed to honor her request to be tried

in civilian clothing during the trial and did not delay the start of the trial for her to

obtain civilian clothing.

       {¶28} The United States Supreme Court has recognized that a defendant’s
right to a fair trial may be infringed by appearing before a jury in jail clothing.

Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). But the

court declined to create a strict rule requiring the reversal of all convictions in which

the defendant appeared before the jury in prison clothing because it recognized that

a defendant may purposely elect to stand trial in jail clothing as a trial strategy to

elicit sympathy. See id. at 507-508.      As a result, to demonstrate a constitutional

violation, the defendant must demonstrate that she was “compel[led] * * * to stand

trial before a jury while dressed in identifiable prison clothing.” Id. at 512. See also

State v. Miller, 1st Dist. No. C-010542, 2002-Ohio-3296, ¶ 9, citing State v. Dorsey,

8th Dist. No. 72177, 1998 Ohio App. LEXIS 1727 (Apr. 23, 1998).

       {¶29} Although Trowbridge argues on appeal that the trial court “failed to
honor her request to be tried in civilian clothes,” an argument suggesting

compulsion, the factual basis for her argument is not demonstrated in the record.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



Trowbridge simply did not ask to be tried in civilian clothes or object to her

wardrobe.

         {¶30} The record demonstrates that after voir dire and the jury’s exit from
the courtroom, the trial court sua sponte raised the issue of Trowbridge’s attire. The

following discussion then transpired:

         {¶31} Prosecutor: Okay. I just wanted to put on the record * * * that the
defendant, you know, chose to wear the jail clothing she has on now, and * * * that’s

what she wanted to wear today, and proceed to trial.

         {¶32} Trowbridge: I didn’t—really I didn’t know—I mean.

         {¶33} Court: Well, do you have any clothing available, ma’am?

         {¶34} Trowbridge: I mean, yeah. My family could have brought me some,
but it just didn’t cross my mind.

         {¶35} Court: All right. Well, maybe you can contact them tonight.

         {¶36} The court then made reference to the five months that Trowbridge had
been in jail, and told Trowbridge to contact her family over the evening if she wished

to do so. She then replied, “I don’t think I can do it.”

         {¶37} When the jury returned to the courtroom, the judge instructed the
jurors that they were not to make any inference of guilt from the fact that Trowbridge

was wearing jailhouse clothing. The issue of Trowbridge’s clothing was not raised

again.

         {¶38} The defendant’s failure “to make an objection to the court as to being
tried in such clothes, for whatever reason, is sufficient to negate the presence of

compulsion necessary to establish a constitutional violation.” Estelle, 425 U.S. at

512-513, 96 S.Ct. 1691, 48 L.Ed.2d 126; see State v. Gandy, 1st Dist. No. C-050804,

2006-Ohio-6282, ¶ 5; State v. Menser, 1st Dist. No. C-050615, 2006-Ohio-6286, ¶

15; Miller, 1st Dist. No. C-010543, 2002-Ohio-3296, at ¶ 9.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



         {¶39} In this case, Trowbridge, who was represented by counsel, did not
object to proceeding to trial in jail clothing after the trial court raised the issue of her

clothing.    Moreover, Trowbridge made no effort to obtain street clothes and

indicated that she would not make an effort. We can only conclude from these facts

that her appearance before the jury in prison clothing was not compelled by the

court. See Dorsey, 8th Dist. No. 72177, 1998 Ohio App. LEXIS 1727 (finding no

compulsion to stand trial in prison clothing where the court sua sponte inquired

about the defendant’s clothing and the defendant failed to communicate a desire to

be tried in civilian clothing). Therefore, Trowbridge has failed to demonstrate a

denial of her right to a fair trial. Accordingly, we overrule the second assignment of

error.

             IV. Sufficiency- and Weight-of-the-Evidence Claims

         {¶40} In her fourth assignment of error, which we address next, Trowbridge
argues that her convictions for aggravated robbery with a firearm specification and

having weapons under a disability were not supported by sufficient evidence and

were against the manifest weight of the evidence. We disagree.

                                    A. Sufficiency

         {¶41} In reviewing a claim that a conviction is not supported by sufficient
evidence, the relevant inquiry is whether, after viewing the evidence in the light most

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

elements of the offense beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

   1. Aggravated Robbery with a Three-Year-Firearm Specification

         {¶42} Trowbridge was convicted of aggravated robbery in violation of R.C.
2911.01(A)(1).    That statute provides, in relevant part, that “[n]o person, in

attempting or committing a theft offense * * * or in fleeing immediately after * * *,



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                      OHIO FIRST DISTRICT COURT OF APPEALS



shall * * * [h]ave 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.”

       {¶43} Before Trowbridge could be found guilty of the three-year-firearm
specification accompanying the aggravated-robbery conviction, the state had to

prove that Trowbridge “had a firearm on or about [her] person * * * while

committing the offense and displayed the firearm, brandished the firearm, indicated

that [she] possessed the firearm, or used it to facilitate the offense.” R.C. 2941.145.

See R.C. 2929.14(D)(1)(a).

       {¶44} The state presented testimony from three eyewitnesses—Cox,
Hendrick, and Keairns—who unequivocally identified Trowbridge as the BP market

robber. These eyewitnesses had seen Trowbridge at close range and were able to see

her face even though she wore a hood. These eyewitnesses further testified that she

had held what appeared to be a firearm in her hand underneath a jacket and that she

had repeatedly threatened to shoot them with it.             The video surveillance

corroborated this testimony. Additionally, Trowbridge was the only woman in the

area who had recently been released from the Marysville reformatory, a claim made

by the robber during the robbery. After reviewing this evidence, we conclude that the

state met its burden of proof with respect to the offense of aggravated robbery and

the accompanying firearm specification.

                    2. Having Weapons Under a Disability

       {¶45} R.C. 2923.13(A)(2) establishes the elements that the state must prove
to support a conviction for having weapons under a disability.         It provides, in

relevant part, that “unless relieved from disability, * * * no person shall knowingly

acquire, have, carry, or use any firearm * * * if * * * the person * * * has been

convicted of any felony offense of violence.”     Evidence of Trowbridge’s requisite

prior conviction was admitted into evidence, and the eyewitnesses’ testimony as well



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                     OHIO FIRST DISTRICT COURT OF APPEALS



as the surveillance footage demonstrated that Trowbridge had carried a firearm.

Accordingly, we conclude that the evidence was sufficient to prove that Trowbridge

knowingly carried and used a firearm while under a disability.

                           B. Weight of the Evidence

       {¶46} In her argument regarding the manifest weight of the evidence,
Trowbridge attacks the credibility of the eyewitnesses. But the weight to be given the

evidence and the credibility of the witnesses were primarily for the trier of fact. State

v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

We find nothing in the record of the proceedings below to suggest that the jury, in

resolving the conflicts in the evidence adduced on the charged offenses, lost its way

or created such a manifest miscarriage of justice as to warrant the reversal of

Trowbridge’s convictions. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997).

       {¶47} Based upon our review of the record, we determine that Trowbridge’s
convictions were supported by sufficient evidence and were not against the manifest

weight of the evidence. Accordingly, we overrule the fourth assignment of error.

             V. Ineffective-Assistance-of-Trial-Counsel Claim

       {¶48} In her third assignment of error, Trowbridge argues that she was
denied the effective assistance of trial counsel. To succeed on a claim of ineffective

assistance of trial counsel, the defendant must demonstrate that counsel’s

performance fell below an objective standard of reasonable representation and that

she was prejudiced by counsel’s deficient performance. 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), paragraph two of the syllabus.            To establish the

necessary prejudice, the defendant must demonstrate a reasonable probability exists

that the outcome of the proceeding would have been different if not for counsel’s

errors. Bradley at paragraph three of the syllabus.



                                           13
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶49} When reviewing counsel’s performance, we must “indulge a strong
presumption that counsel’s conduct falls within a wide range of reasonable

professional assistance.” Strickland at 690.

       {¶50} Trowbridge contends that counsel was ineffective because he failed (1)
to object to the admission of other-act testimony and the prosecutor’s use of leading

questions; (2) to properly argue and renew a Crim.R. 29 motion; and (3) to file a

motion to suppress pretrial identification evidence.

       {¶51} Trowbridge argues that trial counsel was ineffective for failing to
object to testimony concerning Trowbridge’s admission that she “had just got[ten]

out of Marysville for [doing] the same thing.” But we have already held that this

testimony was admissible for the limited purposes of establishing Trowbridge’s

identity and intent, and the element of threat. Thus, counsel was not deficient for

failing to object to the admission of this testimony. Similarly, we cannot say that trial

counsel was deficient for failing to object to leading questions by the prosecutor. The

trial court has discretion to allow leading questions on direct examination, and the

questioning here was within the bounds of that discretion. See Staff Note to Evid.R.

611(C); State v. D’Ambrosio, 67 Ohio St.3d 185, 190, 616 N.E.2d 909 (1993).

       {¶52} Next Trowbridge challenges defense counsel’s performance with
respect to the Crim.R. 29 motion. But any error in counsel’s performance was not

prejudicial where the state presented sufficient evidence of each element of the

offenses.

       {¶53} Finally, Trowbridge contends that defense counsel was deficient for
failing to move to suppress the “identification evidence.”            We assume that

Trowbridge is referring to the eyewitnesses’ pretrial identification testimony. But

Trowbridge has not presented any grounds for suppression, and counsel’s failure to

file a motion to suppress is not a “per se” deficiency. State v. Madrigal, 87 Ohio

St.3d 378, 389, 721 N.E.2d 52 (2000). Thus, Trowbridge has not demonstrated that



                                           14
                       OHIO FIRST DISTRICT COURT OF APPEALS



counsel’s failure to file a motion to suppress was deficient. See State v. Brown, 115

Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65 (“[t]o establish ineffective

assistance of counsel for failure to file a motion to suppress, a defendant must prove

that there was a basis to suppress the evidence in question”).

       {¶54} In summary, Trowbridge has failed to demonstrate that any deficient
performance by counsel prejudiced her.          Accordingly, we overrule the third

assignment of error.

                         VI. Excessive-Sentence Claim

       {¶55} In her final assignment of error, Trowbridge argues that the trial court
imposed an excessive aggregate sentence. The trial court imposed a ten-year term

for the aggravated robbery, a first-degree felony offense, to be served consecutively to

the three-year mandatory term for the accompanying firearm specification, and a

two-year term for the weapons offense, a third-degree felony, for an aggregate

sentence of 15 years of imprisonment.

       {¶56} We conduct a two-part review of Trowbridge’s sentence of
imprisonment. See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124. We must first examine the sentencing court’s compliance with all applicable

rules and statutes to determine whether the sentence is clearly and convincingly

contrary to law; if not, we must review the sentence to determine whether the trial

court abused its discretion in imposing it. See State v. Brown, 1st Dist. Nos. C-

100309 and C-100310, 2011-Ohio-1029, ¶ 13, citing Kalish at ¶ 14 and 17.

       {¶57} Here the aggregate sentence imposed was not contrary to law. The
terms imposed were within the range provided for the degree of the offenses. See

R.C. 2929.14. And the court was required to impose a three-year term for the

accompanying firearm specification. R.C. 2929.14(B)(1)(a). The trial court was not

obligated to engage in judicial fact-finding before making the sentences for the




                                          15
                         OHIO FIRST DISTRICT COURT OF APPEALS



aggravated robbery and the weapons offenses consecutive.2               Brown at ¶ 14, citing

Kalish at ¶ 11. Further, we may presume that the trial court considered the relevant

sentencing statutes, including R.C. 2929.11 and R.C. 2929.12, although it did not

specifically state that it did. Brown at ¶ 14, citing Kalish at fn. 4.

          {¶58} Having presided over the jury trial and having ordered a presentence
investigation, the trial court had knowledge of the facts of the offenses, Trowbridge’s

prior conviction, and her arguments in mitigation. On the state of this record, we

cannot say that the trial court imposed an excessive aggregate sentence or that the

trial court acted unreasonably, arbitrarily, or unconscionably in imposing it.

                                       VII. Conclusion

          {¶59} The judgment of the trial court is affirmed.
                                                                           Judgment affirmed.



HILDEBRANDT, P.J., and DINKELACKER, J., concur.


Please note:
          The court has recorded its own entry on the date of the release of this opinion.




2   Trowbridge was sentenced before the effective date of 2011 Am.Sub.H.B. No. 86.


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