[Cite as State v. Hostacky, 2014-Ohio-2975.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100003


                                      STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                  DENNIS HOSTACKY

                                                           DEFENDANT-APPELLANT



                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-567826

        BEFORE:          Jones, P.J., Rocco, J., and McCormack, J.

        RELEASED AND JOURNALIZED: July 3, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Fallon Radigan
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} Defendant-appellant Dennis Hostacky appeals his convictions for aggravated

robbery, kidnapping, theft, carrying a concealed weapon, and having weapons while

under disability.    The state concedes Hostacky’s argument with respect to merger as to

the having weapons while under disability counts; thus, his convictions and sentences are

affirmed in part and reversed in part, and this case is remanded for proceedings consistent

with this opinion.

                            I. Procedural History and Facts

       {¶2} In 2012, Hostacky was charged with the following: one count each of

kidnapping and aggravated robbery, both with one- and three-year firearm, notice of prior

conviction, and repeat violent offender specifications; one count each of misdemeanor

theft, carrying a concealed weapon and improperly handling firearms in a motor vehicle;

and two counts of having weapons while under disability.

       {¶3} Prior to trial, Hostacky waived his right to a jury trial with regard to the

notice of prior conviction and repeat violent offender specifications and the having

weapons under disability counts.     The case proceeded to a jury trial on the remaining

charges.

       {¶4} The following facts pertinent to this appeal were presented at trial.

       {¶5} Gary Humpal answered an advertisement on Craigslist for employment. He

went to meet a man by the name of “Steve” in the parking lot of Sam’s Club on

Brookpark Road early one morning to receive instructions for the job, that consisted of
going door-to-door to pass out flyers for a landscaping company. Humpal was assigned

to work with Hostacky; they drove to Rocky River in Hostacky’s minivan. When they

arrived in Rocky River, the men began to pass out flyers on different sides of a residential

street

         {¶6} The men took a break for lunch.             Humpal testified that he had a couple

hundred dollars on him, which Hostacky saw when he paid for lunch. After lunch, the

men continued to pass out flyers for approximately two or three more hours before Steve

stopped by to pay them.

         {¶7} Humpal testified that Hostacky convinced him to stop early and offered to

take him back to Sam’s Club, but instead, took Humpal to a bar. Humpal testified that

he drank “water with lemon,” because he did not drink alcohol.                    While at the bar,

Hostacky inquired if Humpal had ever tried heroin and said that he and his wife do “a

bag” every night.

         {¶8} After leaving the bar, Hostacky drove into Cleveland and picked up a woman

named “Melissa.”1 At this time, Humpal moved into the backseat.                        He could see

Hostacky and Melissa whispering, but could not hear them because he had headphones

on.

         {¶9} Hostacky drove to a store and stopped in the parking lot behind the store.

Hostacky demanded Humpal’s money, pulled out a gun from under the driver’s                         seat,


                  The same woman is identified as both “Melissa” and “Michelle” during trial,
                1


         but because her identity is unknown and for ease of discussion, we will refer to her as
         Melissa.
jumped on top of Humpal, and went for Humpal’s pockets.        Humpal started    “freaking”

out and tried to jump out of the van. Humpal testified that he was wearing a blue jacket,

which came off when he escaped out of the van.            Humpal     lost “several hundred

dollars, his phone, jacket, his brother’s vintage Plain Dealer bag, and a phone charger.”

       {¶10} Once Humpal was out of the van, Hostacky “peeled” out of the parking lot

with Melissa, leaving Humpal behind.

       {¶11} Humpal called the police from a nearby barber shop.      When police arrived,

they took Humpal to tour the area in search of Hostacky, but were unable to locate him.

Humpal made a statement and picked Hostacky out of a photo array.

       {¶12} Humpal admitted to having a criminal record for 2004 and 2005

convictions.

       {¶13} Cleveland Police Sergeant Tommy Shoulders testified he arrived on scene

and spoke with Humpal, who was “upset.” Through his investigation, the sergeant

discovered Hostacky’s name and address and located the minivan at his home in North

Ridgeville.    Humpal’s jacket, phone charger, Walkman, ear buds, and Plain Dealer bag

were located inside the van, but the gun and money were not recovered.

       {¶14} Cleveland Police Officer Elizabeth Galarza testified she responded to the

scene and Humpal appeared “scared and terrified.”        She stated that he was “visibly

shaken, crying * * * I would say he was terrified.”     She later elaborated that “he was

visibly shaken; he was shaking, he was crying. He didn’t have his jacket because the

suspect took his jacket; it was cold out. He couldn’t believe that the guy put a gun in his
face.”

         {¶15} Detective Elliot Landrau testified that he arrived on scene, spoke with

Humpal, and drove Humpal around for approximately four hours looking for the minivan.

 Based on his experience, the detective did not think Humpal was      under the influence

of drugs or alcohol.   The detective explained how people who are under the influence of

crack cocaine emit a distinctive “plastic” smell and usually have burns and calluses on

their fingers and lips from the glass pipes used to smoke the drug.        The detective

testified that Humpal “was in the back seat of our car for several hours; throughout the

day he was in our office. I watched this individual” and he did not have any of these

characteristics.

         {¶16} Detective Landrau eventually recovered Humpal’s items from Hostacky’s

minivan.     He also took a statement from Hostacky, who “started telling us a story that

they had been getting high or drinking and all that. We knew that this was not true and we

advised him of that and we terminated our interview, because we knew it wasn’t going to

be an accurate, truthful statement, so we didn’t want to waste our time listening to all

that.”

         {¶17} Hostacky testified he was married with six children. On the day of the

incident, he was working with Humpal passing out flyers in Rocky River. When they

went to the bar, Hostacky had two beers, a vodka, and a shot and Humpal had one shot of

vodka.     When they were driving back to Sam’s Club, Humpal wanted to smoke

marijuana. Hostacky told Humpal he could not smoke pot because he was on probation
but he could smoke crack so the men went to a store and bought two crack pipes.

       {¶18} Hostacky further testified that the men bought $50 worth of crack cocaine

and smoked it. They bought $100 more of the drug. Humpal told Hostacky, “they

should get a girl.” Hostacky testified that he had some girls “he hung out with,” but did

not want to introduce them to Humpal, so he drove to an area frequented by prostitutes

and picked up Melissa.      Hostacky stated that Humpal and Melissa “took care of

business” in the back seat and, although Melissa “offered” him the same, he declined her

invitation.

       {¶19} Hostacky testified that they wanted more crack cocaine, but because they

were out of both drugs and money,         Humpal suggested he sell his food stamps.

Hostacky drove to a store where Humpal could sell his food stamps, but while Humpal

was in the store, Hostacky’s wife texted him to come home. Hostacky testified,

      part of why I get high, I just kind of don’t want to deal with things. I
      finally started checking my phone messages. My wife had texted a couple
      times and I see I missed two calls.
Hostacky testified that he texted his wife and told her he was on his way home, that “he

lied” to his wife and said he would “be home in a minute.”

       {¶20} Hostacky left, leaving Humpal behind. Hostacky admitted that he took

Melissa with him and dropped her off even though he left Humpal at the store. Finally,

Hostacky testified “when it comes to lying, yeah, I’m more—I’m a liar when I’m high.”

       {¶21} Hostacky admitted he had a record and was currently on postrelease control;

he had been convicted of burglary and theft.    He denied having a gun or using it on

Humpal. He admitted to being a drug addict since he was 14 years old and his drug of
choice was crack cocaine.

       {¶22} The jury convicted Hostacky of kidnapping and aggravated robbery with the

one- and three-year firearm specifications, theft, and carrying a concealed weapon but

acquitted him of improperly handling firearms in a motor vehicle.           The trial court

convicted Hostacky of two counts of having weapons under disability but acquitted him

of the notice of prior conviction and repeat violent offender specifications.

       {¶23} At sentencing, the trial court stated it was imposing a total sentence of eight

years in prison as follows: the aggravated robbery and kidnapping charges merged with

three years on the “base charge” and three years on the firearm specification to be served

prior and consecutive to the underlying sentence; time served for theft; 18 months for

carrying a concealed weapon count to be served concurrent with the other counts and 12

months for each having weapons under disability count, to run consecutive to each other.

       {¶24} Hostacky timely filed his notice of appeal.

       {¶25} Prior to oral argument in this case, we remanded the case to the trial court,

noting that the sentencing journal entry imposed a six-year sentence, contrary to the

eight-year sentence the court stated it was imposing during the sentencing hearing.      We

further noted that the trial court did not mention in its journal entry whether the state had

elected to proceed to sentencing on the aggravated robbery or kidnapping conviction.

This court indicated that the trial court’s jurisdiction on remand was limited to clarifying

the sentencing journal entry by identifying whether the sentence was imposed on the

aggravated robbery or kidnapping conviction and to make the appropriate corrections to
the journal entry to reflect the sentence actually imposed by the court at the sentencing

hearing.

       {¶26} On remand, the trial court issued a nunc pro tunc entry in which it noted that

the state elected to proceed to sentencing on the aggravated robbery count.        The trial

court further noted that Hostacky was sentenced to 12 months on each having weapons

under disability count and that the counts were to run consecutive to each other and to all

other counts, for a total sentence of eight years in prison.

       {¶27} Hostacky raises four assignments of error for our review.

                                II.   Assignments of Error

       I. It is plain error in violation of the Sixth and Fourteenth Amendments and
       Section 10, Article I of the Ohio Constitution for police officers to invade
       the province of the jury by declaring the story told by the alleged victim in a
       case was true and that the statements of the defendant were lies.

       II. Pervasive prosecutorial misconduct during rebuttal closing argument
       constituted plain error in violation of the Sixth and Fourteenth Amendments
       and Section 10, Article I of the Ohio Constitution.

       III. Mr. Hostacky received ineffective assistance of counsel in violation of
       his rights under the Sixth and Fourteenth Amendments to the United States
       Constitution and under Section 10, Article I of the Ohio Constitution when
       his attorney repeatedly and consistently failed to object to testimony and
       argument that were highly improper and prejudicial.

       IV. The trial court committed error when it imposed separate and

       consecutive sentences for two counts of having a weapon under a disability

       when the two charges address possession of the same gun at the same time.

                                  III. Law and Analysis

Witness Testimony
       {¶28} In the first assignment of error, Hostacky claims that the trial court

committed plain error for failing to exclude certain statements made by two of the

testifying police officers.

       {¶29} The trial court has broad discretion in the admission or exclusion of

evidence. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of

the syllabus.   Absent an abuse of discretion and a showing of material prejudice, a trial

court’s ruling on the admissibility of evidence will be upheld. State v. Martin, 19 Ohio

St.3d 122, 129, 483 N.E.2d 1157 (1985).

       {¶30} Hostacky concedes that he failed to object at trial to the instances of which

he now complains; therefore, he waives all but plain error.   In order to find plain error, it

must be determined that, but for the error, the outcome of the proceeding clearly would

have been different. State v. Long, 53 Ohio St.2d 91, 96-97, 372 N.E.2d 804 (1978).

       {¶31} Hostacky’s first claim is that Officer Galarza improperly vouched for

Humpal’s credibility when she testified:   “At first I thought he was drunk, then I realized

it really happened to him.”

       {¶32} Hostacky relies on this court’s decision in State v. Young, 8th Dist.

Cuyahoga No. 79243, 2002-Ohio-2744, where this court found plain error when a

detective, asked whether a witness’s story was consistent, testified the witness was telling

the truth.   This court found that the police officer usurped the role of the jury in

determining witness credibility. Id. at ¶ 63.

       {¶33} But in State v. Craig, 8th Dist. Cuyahoga No. 94455, 2011-Ohio-206, this
court declined to find plain error when an officer testified that she believed a witness, the

defendant’s girlfriend, had lied to her about the defendant’s real name. This court noted

that the officer was testifying to the steps in his investigation and whether he could rely

on the information the defendant’s girlfriend provided to him. The court also noted that

there was evidence other than the officer’s improperly admitted statement to convict the

defendant. Id. at ¶ 18.

       {¶34} We find the instant case more analogous to Craig.       When Officer Galarza

made the statement that she “realized it really happened to him,” she was not improperly

vouching for the victim’s credibility. On cross-examination, defense counsel questioned

Officer Galarza about the victim’s demeanor in an apparent attempt to have the officer

admit that Humpal was angry Hostacky left him at the store without a ride, as opposed to

scared because he had been robbed at gunpoint.      On redirect, the state asked the officer

to describe Humpal’s demeanor and why the officer, on cross-examination, had described

Humpal’s demeanor as “afraid or terrified,” instead of “angry.”    Galarza responded:

       His demeanor was he was visibly shaken; he was shaking, he was crying.
       He didn’t have his jacket because the suspect took his jacket; it was cold
       out. He couldn’t believe that the guy put a gun in his face. He was just
       like somebody that was robbed, he was just crying and shaking. At first I
       thought he was drunk, then I realized that it really happened to him.

       {¶35} In the context of her testimony, we do not find that Galarza’s statement

amounts to improper opinion testimony.        Galarza was merely explaining on redirect,

after cross-examination about the victim’s demeanor, how the victim was acting when she

arrived on scene.
       {¶36} Hostacky’s second complaint is with regard to Detective Landrau’s

testimony.   Hostacky claims that Detective Landrau improperly opined that Hostacky

was not being truthful when the detective testified that, during his interview with

Hostacky, the suspect told

       a story that they had been getting high or drinking and all that. We knew
       this was not true and we advised him of that and we terminated our
       interview because we knew it wasn’t going to be an accurate, truthful
       statement, so we didn’t want to waste our time listening to all that.

Hostacky claims that allowing this statement into evidence amounted to plain error and

deprived him of a fair trial.

       {¶37} We decline to find that the detective’s statement that he did not believe

Hostacky’s story amounted to plain error.    We agree with the state that when reviewing

the record in its totality, Hostacky was not prejudiced by the admission of the officer’s

statements. During this portion of the detective’s testimony, he was explaining the steps

he took in his investigation. We further note that Hostacky testified on his own behalf;

therefore, the jury was able to perceive his credibility firsthand and decide for themselves

whether he was being truthful.        State v. Allen, 8th Dist. Cuyahoga No. 92482,

2010-Ohio-9, ¶ 52, citing State v. Burchett, 12th Dist. Preble Nos. 2003-09-017 and

2003-09-018, 2004-Ohio-4983,¶ 20; see also State v. Proffitt, 72 Ohio App.3d 807, 596

N.E.2d 527 (12th Dist.1991).

       {¶38} Finally, we note that there was other evidence to support Hostacky’s

conviction. When the police arrested Hostacky, they found Humpal’s belongings in his

van.   Thus, “the determinative issue for the trier of fact” was not only the truthfulness
and credibility of the victim and the defendant. See Allen at ¶ 53.

       {¶39} In light of the above, although the admission of Detective Landrau’s

statement may have been in error, we decline to find that it amounted to plain error.

       {¶40} The first assignment of error is overruled.

Prosecutorial Misconduct

       {¶41} In the second assignment of error, Hostacky argues that the state committed

prosecutorial misconduct.     He again concedes that because he did not object to the

prosecutor’s allegedly improper statements, he is limited to arguing plain error on appeal.

       {¶42} The test for prosecutorial misconduct is whether the prosecutor’s remarks

were improper and, if so, whether they prejudicially affected the substantial rights of the

accused. State v. Bey, 85 Ohio St.3d 487, 493, 709 N.E.2d 484 (1999). The focus of

that inquiry is on the fairness of the trial, not the culpability of the prosecutor. Id.

       {¶43} Both the prosecution and the defense enjoy wide latitude in closing

arguments as to what they believe the evidence has shown and what reasonable inferences

may be drawn from the evidence.        State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d

773 (1970).    Moreover, “prosecutorial misconduct constitutes reversible error only in

‘rare instances.”’ State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993),

quoting State v. DePew, 38 Ohio St.3d 275, 288, 528 N.E.2d 542 (1988).

       {¶44} Hostacky’s initial claim is that the prosecutor committed misconduct by

making general statements to the jury during closing arguments that crime is pervasive

throughout the county, drugs are destroying neighborhoods, and crime affects all families,
including defendants’ families.

       {¶45} We agree with Hostacky that these statements were irrelevant to the

question of whether he was guilty of the crimes he was charged with; however, their

admission does not rise to the level of plain error because there is no evidence that, but

for their admission, the outcome of the trial would have been different.

       {¶46} Hostacky next argues that the prosecutor improperly vouched for the

victim’s credibility by making the following statements during closing argument: “an

officer said [Humpal] was sobbing that night [and] * * * after his testimony that day he

was out in the hallway sobbing as well. He’s a victim”; “as he so honestly told you”;

“[w]hat you heard there was a truthful statement of a guy”; and “he [Humpal] wasn’t

lying to you.”

       {¶47} We recognize that

       a prosecutor is not allowed to express a personal opinion concerning the
       credibility of evidence, but can argue that the character, quality, or
       consistency of particular evidence or witnesses should be considered when
       assessing credibility.

State v. Cody, 8th Dist. Cuyahoga No. 77427, 2002-Ohio-7055, ¶ 35. Although it is

never advisable for a prosecutor to aver that a witness is telling the truth, upon reviewing

the prosecutor’s remarks in the context of the entire trial, we do not find that they

prejudicially affected Hostacky’s substantial rights.   The statements were made in the

context of the prosecutor arguing that the victim did not have a motive to lie because he

was a simple man who lived a simple life and his demeanor throughout the process

showed that he was a victim.
       {¶48} Moreover, the trial court instructed the jury that “opening statements and

closing arguments do not constitute evidence in the case and will not be so considered.”

The jury is presumed to follow the instructions of the trial court. Pang v. Minch, 53

Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990), paragraph four of the syllabus. Hostacky

has not pointed to any evidence in the record that the jury failed to do so in this case.

       {¶49} In light of the above, the second assignment of error is overruled.

Ineffective Assistance of Counsel

       {¶50} In the third assignment of error, Hostacky argues that he received ineffective

assistance of counsel when his attorney failed to object to witness testimony and the

prosecutor’s closing argument and such failure was prejudicial to him.

       {¶51} A defendant who claims constitutionally ineffective assistance of counsel

must show not only that his or her lawyer’s representation fell below reasonable

professional standards, but that he or she was prejudiced as a result. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Johnson,

88 Ohio St.3d 95, 108, 723 N.E.2d 1054, (2000). As with prosecutorial misconduct, the

defendant must show that he or she was deprived of a fair trial, meaning that, but for his

or her lawyer’s errors, there is a reasonable probability the outcome of the trial would

have been different. Strickland at 687-694.

       {¶52} Hostacky claims that trial counsel “repeatedly failed to object when he

should have” during Officer Galarza and Detective Landrau’s testimonies and during the

prosecutor’s closing arguments.     But a review of the record shows that defense counsel
did object throughout the trial.     Trial counsel objected to the questions asked and

evidence offered during both the direct and cross-examination of witnesses.

       {¶53} Trial counsel chose when and what to object to at the time of the trial.

Although Hostacky claims that Officer Galarza’s testimony should have been objected to,

counsel could have taken her testimony as an opportunity to question her perception and

opinion of Humpal and other theories of what could have happened during the incident.

We find the same to be true with regard to Detective Landrau’s testimony.     Trial counsel

had the opportunity to object, and did object several times during his testimony, but he

also chose to cross-examine Detective Landrau based on the facts and the evidence

presented.

       {¶54} Finally, with regard to the prosecutor’s closing arguments, we do not find

that Hostacky’s perceived view of his counsel’s lack of objecting rises to the level of

ineffective assistance of counsel.       Hostacky is asking this court to second guess

counsel’s trial strategy, and we decline to do so.       See State v. Grasso, 8th Dist.

Cuyahoga No. 98813, 2013-Ohio-1894, ¶ 62, citing State v. Gooden, 8th Dist. Cuyahoga

No. 88174, 2007-Ohio-2371, ¶ 38 (“Trial tactics and strategies do not constitute a denial

of effective assistance of counsel.”).

       {¶55} Accordingly, the third assignment of error is overruled.

Sentencing

       {¶56} In the fourth assignment of error, Hostacky claims that the trial court erred

when it sentenced him to consecutive sentences for each count of having weapons under
disability.

       {¶57} R.C. 2929.14(D)(1)(b) provides, “[a] court shall not impose more than one

prison term on an offender under division (D)(1)(a) of this section for felonies committed

as part of the same act or transaction.”    The Ohio Supreme Court has defined “the same

act or transaction” as a “series of continuous acts bound by time, space and purpose, and

directed toward a single objective.” State v. Wills, 69 Ohio St.3d 690, 691, 635 N.E.2d

370 (1994).   The state concedes this assignment of error, noting that since there was only

one handgun and the facts arose out of a single incident, the two having weapons under

disability counts should have merged.

       {¶58} We agree and remand the case for the limited purpose of merging the having

weapons under disability convictions.      After such merger, the state shall elect to proceed

with sentencing on either count and the court will resentence Hostacky on that count only.

 See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25:

       If, upon appeal, a court of appeals finds reversible error in the imposition of
       multiple punishments for allied offenses, the court must reverse the
       judgment of conviction and remand for a new sentencing hearing at which
       the state must elect which allied offense it will pursue against the defendant.

       {¶59} The fourth assignment of error is sustained.

       {¶60} Affirmed in part, reversed in part, and remanded.

       It is ordered that appellant and appellant split the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

KENNETH A. ROCCO, J., and
TIM McCORMACK, J., CONCUR
