[Cite as State v. Wallace, 2012-Ohio-2287.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.      25511

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
LACY D. WALLACE, III                                COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 10 03 0852

                                 DECISION AND JOURNAL ENTRY

Dated: May 23, 2012



        CARR, Presiding Judge.

        {¶1}     Appellant, Lacy Wallace, appeals his conviction by the Summit County Court of

Common Pleas. We affirm.

                                               I.

        {¶2}     Rodney Kelley was robbed at gunpoint near the mailbox outside his apartment

building. He recognized his assailant from the neighborhood, but did not know his name. After

the robbery, Kelley called the police and went to the nearby Dairy Mart to ask whether a person

matching the description he provided had been there. The owner produced the security video

with the person’s image. After Kelley identified Wallace from a photo array, Wallace was

arrested and charged with aggravated robbery in violation of R.C. 2911.01(A)(1), accompanied

by a firearm specification, and with robbery in violation of R.C. 2911.02(A)(3). A jury found

Wallace guilty as charged in the indictment. The trial court merged his convictions for robbery
                                                   2


and aggravated robbery for purposes of sentencing and sentenced him to seven years in prison.

Wallace appealed.

                                                   II.

                                   ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED IN ADMITTING HEARSAY STATEMENTS
        FOR PURPOSES OF IDENTIFYING MR. WALLACE.

        {¶3}    Wallace’s first assignment of error is that the trial court erred by admitting out-of-

court statements made to the victim and to police that identified him by name. Wallace objected

to the statements during the victim’s testimony, but not during the testimony of the police

officer. Therefore, with respect to the testimony of the investigating officer, Wallace argues that

the admission of these statements is plain error. Because there was no error, we disagree on both

points. See generally State v. Hill, 92 Ohio St.3d 191, 200 (2001) (noting that “error * * * [is]

the starting point for a plain-error inquiry.”).

        {¶4}    Evid.R. 801(C) defines “hearsay” 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.” As a general rule, hearsay is not admissible. Evid.R. 802. The hearsay rule

does not apply, however, when an out-of-court statement is offered for a purpose other than the

truth of the matter of asserted. State v. Lewis, 22 Ohio St.2d 125, 132 (1970). One such

situation is when an out-of-court statement is introduced to explain the subsequent actions taken

by witnesses, including the subsequent investigative activity of law enforcement officers. State

v. Thomas, 61 Ohio St.2d 223, 232 (1980). See also State v. Parker, 2d Dist. No. 18926, 2002-

Ohio-3920, ¶ 50 (explaining that an out-of-court statement that identified the defendant by a

nickname was not offered for its truth, “but to show the steps taken by the police to ultimately

determine” the identity of the perpetrator, including assembly of a photo array.)
                                                    3


       {¶5}    In this case, both the victim and Officer Michael Murphy testified that an

acquaintance of Kelley’s gave them Wallace’s name. Kelley testified that he had a clear view of

the robber’s face, that he recognized him from the neighborhood, but had never spoken with him

and did not know his name, and that he knew the robber to be acquainted with a friend. He

testified that because of that, he contacted his friend immediately after the robbery and asked,

“[w]ho the dude you was talking to a few days ago outside, got the glasses[?] * * * The corny

looking dude.” According to Kelley’s testimony, he then called the police and went with his

friend to the nearby Dairy Mart, where he identified Wallace’s picture from surveillance video.

Officer Murphy testified that he responded to the Dairy Mart, where he requested the

surveillance video and obtained Wallace’s name from Kelley’s acquaintance. Officer Murphy

passed the information from his investigation on to Detective Robert Richardson, who used it to

compile a photo array.

       {¶6}    In each instance, the out-of-court statement was not offered to prove that Lacy

Wallace was the robber’s name, but to explain the witness’s later actions. The out-of-court

statements were not hearsay, and, therefore, the trial court did not err by admitting them.

Wallace’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN ADMITTING STATEMENTS MADE BY
       MR. WALLACE POST-ARREST AFTER INVOKING HIS RIGHT TO AN
       ATTORNEY.

       {¶7}    Wallace’s second assignment of error is that the trial court committed plain error

by allowing a witness to testify about his post-Miranda silence and about statements that he

made after he asked for an attorney. This evidence was admitted in two ways: first, through the

testimony of Detective Richardson, who conducted Wallace’s interview, and second, through the
                                                 4


admission of an audio recording of the interview. As Wallace acknowledges, he did not object to

Detective Richardson’s testimony. To the contrary, defense counsel cross-examined Detective

Richardson about the interview, asked to withdraw his objection to the audio recording, and

moved to admit the audio recording after Detective Richardson testified.

       {¶8}     “It is a general 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.” State v. Childs, 14 Ohio St.2d 56, 61 (1968), citing State v. Glaros, 170 Ohio St. 471

(1960), paragraph one of the syllabus. Courts may recognize plain error that affects a substantial

right when necessary to prevent a manifest miscarriage of justice. State v. Payne, 114 Ohio St.3d

502, 2007-Ohio-4642, at ¶15-16.

       {¶9}    Although Wallace has argued in terms of post-Miranda silence, the trial transcript

and audio recording of the interview indicate that it is not post-Miranda silence that is Wallace’s

concern, but the trial court’s admission of statements that he made when he engaged Detective

Richardson in conversation after invoking his right to counsel. “Once an accused invokes his

right to counsel, all further custodial interrogation must cease and may not be resumed in the

absence of counsel unless the accused thereafter effects a valid waiver or himself renews

communication with the police.” State v. Knuckles, 65 Ohio St.3d 494 (1992), paragraph one of

the syllabus. Thus, when a suspect invokes the right to counsel, police must cease from “any

words or actions * * * (other than those normally attendant to arrest and custody) that the police

should know are reasonably likely to elicit an incriminating response[.]” Id. at 496, quoting

Rhode Island v. Innis, 446 U.S. 291, 301 (1980). When a suspect makes statements after

invoking the right to counsel, the focus of this inquiry is on whether the suspect has been
                                                 5


compelled to speak or has spoken of his own volition. See State v. Marrero, 9th Dist. No.

10CA009867, 2011-Ohio-3745, ¶ 14.

       {¶10} There is no dispute that Wallace invoked his right to counsel almost immediately.

Once Detective Richardson finished informing Wallace of his Miranda rights, however, Wallace

started asking questions of him and some further dialogue occurred until Wallace asked for an

attorney again and the interview ended. The trial court, therefore, did not err in permitting

Detective Richardson’s testimony and, in the absence of error, this Court has no plain error to

recognize. See Hill, 92 Ohio St.3d at 200. With respect to the recorded interview, we reach the

same conclusion, but also note that “a defendant may not ‘take advantage of an error that he

himself invited or induced.’” State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, ¶ 10,

quoting State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, ¶ 27. Wallace’s

second assignment of error is overruled.

                                                III.

       {¶11} Wallace’s assignments of error are overruled.         The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                6


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT




DICKINSON, J.
CONCURS

BELFANCE, J.
CONCURS IN JUDGMENT ONLY


APPEARANCES:

DAVID M. WATSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
