[Cite as State v. Smith , 2016-Ohio-5062.]


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

STATE OF OHIO,                                  :

        Plaintiff-Appellee,                     :              Case No. 15CA3686

        v.                                      :              DECISION AND
                                                               JUDGMENT ENTRY
THOMAS O. SMITH,                                :

        Defendant-Appellant.                    :              RELEASED: 07/22/2016


                                             APPEARANCES:

Timothy Young, Ohio Public Defender and Nikki Trautman Baszynski, Assistant State Public
Defender, Columbus, Ohio for appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, Pat Apel, Assistant Prosecuting Attorney
and Julie Cooke-Hutchinson, Assistant Prosecuting Attorney, Portsmouth, Ohio for appellee.

Hoover, J.

        {¶ 1} Defendant-appellant Thomas O. Smith (“Smith”) appeals his convictions and

sentences from the Scioto County Common Pleas Court, following a jury trial. A jury found

Smith guilty of multiple offenses including engaging in a pattern of corrupt activity, multiple

trafficking and possession offenses, and participating in a criminal gang. The trial court

sentenced Smith to an aggregate total of 40 years in prison.

        {¶ 2} Here on appeal, Smith asserts five assignments of error. First, Smith argues that

numerous instances of prosecutorial misconduct violated his right to a fair trial. Second, Smith

contends that his trial counsel was ineffective because he failed to object to those instances of

prosecutorial misconduct. Third, Smith argues that testimony from a State of Ohio (“State”)

expert witness and two of the State’s admitted exhibits contained testimonial hearsay in violation
Scioto App. No. 15CA3686                                                                            2


of his Sixth Amendment right to confront the witnesses against him. Fourth, Smith contends that

the cumulative nature of the errors that occurred during his trial denied him his right to a fair

trial. Finally, Smith contends that his convictions for engaging in a pattern of corrupt activity and

participating in a criminal gang should have merged for sentencing as allied offenses of similar

import.

          {¶ 3} For the reasons discussed more fully below, we overrule Smith’s first, second,

third, and fourth assignments of error. Therefore, we affirm Smith’s convictions. However, we

agree with Smith that his convictions for engaging in a pattern of corrupt activity and

participating in a criminal gang should have merged as allied offenses of similar import.

Accordingly, we sustain Smith’s fifth assignment of error. We remand the case for proceedings

consistent with this decision.

                                     I. Facts and Procedural Posture

          {¶ 4} On September 26, 2014, the Scioto County Grand Jury filed a superseding

indictment against defendant-appellant Smith and 21 other defendants for multiple offenses.

Smith was charged with the following counts: Count 1: engaging in a pattern of corrupt activity,

a first degree felony, in violation of R.C 2923.32(A)(1); Count 2: conspiracy to engage in corrupt

activity, a second degree felony, in violation of R.C. 2923.01; Counts 10-13: trafficking in

drugs/major drug offender, first degree felonies, in violation of R.C. 2925.03(A)(2); Counts 15

and 16: trafficking in drugs/heroin, second degree felonies, in violation of R.C. 2925.03(A)(2);

Count 17: possession of heroin, a second degree felony, in violation of R.C.

2925.11(A)/(C)(6)(e); Count 18: trafficking in drugs/cocaine, a first degree felony, in violation

of R.C. 2925.03(A)(2) & (C)(4)(f); Count 19: possession of cocaine, a first degree felony, in

violation of R.C. 2925.11(A)/(C)(4)(e); Count 27: conspiracy to traffic in heroin, a second
Scioto App. No. 15CA3686                                                                              3


degree felony, in violation of R.C. 2923.01; Count 28: participating in a criminal gang, a second

degree felony, in violation of R.C. 2923.42; Count 38: trafficking in drugs, a fourth degree

felony, in violation of R.C. 2925.03(A)(1). Counts 10-13, 15-19, 27 and 38 were predicate events

of the offenses of engaging in a pattern of corrupt activity and participating in a criminal gang.1

         {¶ 5} The State’s case against Smith proceeded to a jury trial on February 2, 2015.2

During its case in chief, the State presented 11 witnesses. The State’s theory of this case was that

members of the 22nd Street Bloods, a gang from Columbus, Ohio, ran a drug trafficking

operation in Scioto County. The operation included usage of a phone number that individuals

would call and set up a meeting in order to purchase drugs. The State presented evidence that

Smith took an active role in this drug trafficking operation.

         {¶ 6} The State’s first witness was Detective Robert C. Vass (“Vass”) of the Columbus

Police Department (“CPD”). Vass was tasked with investigating and gathering intelligence on

criminal street gangs. Vass was designated as an expert witness, without objection from counsel.

As a part of his duties, Vass and the other officers within the CPD classify gangs and monitor the

criminal activities of their members. Vass testified that the CPD compiles a list of active and

inactive members of each gang. According to Vass, if an active individual has two years of no

contact with the police, then that individual is moved to an inactive classification.

         {¶ 7} Vass initially testified about the general behavior of gangs and gang culture. Vass

stated that most of the gangs in Columbus identify as either the Bloods or the Crips; and the

gangs typically have affiliation to a specific neighborhood. Vass’s testimony eventually focused

on the 22nd Street Bloods. Vass identified several members of the 22nd Street Bloods, including

an original member of the gang Dartangnan Hill, Smith’s brother and co-defendant Orlando


1
    The indictment included six counts, 53 though 58, of uncharged predicate events.
2
    Smith was the only co-defendant that went to trial.
Scioto App. No. 15CA3686                                                                             4


Smith, and co-defendants Troy Hines, Courtney Anderson, Kelvin Hayden, Andre Gilliam, and

Ronald Fields. Vass also described the characteristics of the gang, as well as the members’ use of

clothing, symbols, hand gestures, tattoos and colors to show their affiliation with the gang. Vass

testified that the gang generated money in two different ways— selling narcotics and committing

armed robberies.

       {¶ 8} During Vass’s testimony, the State introduced what was referred to as a “criminal

predicate statement” on the activities of the 22nd Street Bloods. According to Vass, the criminal

predicate statement explains how and why the CPD believes a certain organization is a criminal

street gang. The criminal predicate statement documents the gang’s activities and in particular,

the gang members’ contacts with police officers. The criminal predicate statement is a collection

of dated summaries that describe police officers’ investigations of criminal activity involving

members of the 22nd Street Bloods. Vass testified that the CPD keeps the criminal predicate

statement in the normal course of police business. The State introduced and marked the criminal

predicate statement as State’s Exhibit 4. The trial court admitted the criminal predicate statement

into evidence.

       {¶ 9} Vass also testified that, in anticipation of trial, he prepares a “gang book” on

individual defendants. The gang book shows how a specific gang member has been documented.

Vass testified that in 2005, the CPD began to document Smith’s criminal activities as a member

of the 22nd Street Bloods. The gang book is similar to the criminal predicate statement, in that it

is also a report of Smith’s criminal activity associated with the 22nd Street Bloods. The gang

book contains dated summaries of police investigations and investigative reports written by

different CPD investigators. The State introduced the gang book on Smith and marked it as

State’s Exhibit 5. The trial court admitted the gang book into evidence.
Scioto App. No. 15CA3686                                                                            5


       {¶ 10} The State introduced and Vass testified to the multiple prior convictions of

documented members of the 22nd Street Bloods. Through Vass’s testimony, the State introduced

the criminal history of the following co-defendants and documented members of the 22nd Street

Bloods: Kelvin Hayden, Robert Charles, Troy Hines, Orlando Smith (Smith’s brother), Andre

Gilliam, Courtney Anderson, and Ronald Fields. The State also introduced Smith’s prior

convictions. Smith was convicted in four separate cases from Franklin County on offenses

including possession of cocaine, possession of drugs, and having weapons under a disability.

Because of those convictions, Smith was incarcerated from May 2010 to November 2013.

       {¶ 11} Vass stated that he was personally familiar with Smith because he had interacted

with him in the past. Vass stated that Smith went by the aliases “Bugatti Bhomas,” “Gotti,” and

“Bhomas.” Vass had also conducted surveillance on Smith. Vass opined that Smith was an active

member of the 22nd Street Bloods before he was incarcerated in 2010, while he was incarcerated

and after he was released in 2013. On cross-examination, defense counsel asked Vass how he

could classify Smith as active during his incarceration if the CDP was not monitoring him.

Defense counsel referred to Vass’s earlier testimony that if a person had two years of no contact

with police then that person would be classified as inactive. Vass answered that he based his

conclusion on a Department of Corrections (DOC) report, obtained through the Ohio law

enforcement gateway (“OLEG”) that classified Smith as an active participant in a criminal gang

during his incarceration. The DOC report was included in the gang book. Vass stated that the

DOC would have to furnish the documentation to support that classification as the DOC, and not

CPD, monitors a gang member’s status during incarceration.

       {¶ 12} During Vass’s testimony, the State introduced photographs and videos depicting

Smith’s co-defendants with drugs, money, and guns. Vass identified gang members and gang
Scioto App. No. 15CA3686                                                                           6


references in the pictures and videos. The State also introduced videos and photographs from

Smith’s social media account. The videos featured Smith performing rap music. The photographs

and videos portray Smith with large sums of money and making references to the 22nd Street

Bloods. The images did not indicate the exact date of posting to social media but they did show

how long had passed since they were posted. Vass estimated that the images were posted in

November 2013. On cross-examination, Vass indicated that he did not know the exact dates the

photographs and videos were posted to Smith’s social media account.

       {¶ 13} Next, the State called seven witnesses who testified about Smith’s involvement

with drug trafficking. Many of the witnesses received something from the State in exchange for

their testimony. First, Charles Sadler, a co-defendant in this case, testified that he moved to

Scioto County at the end of the summer in 2012. Shortly thereafter, Courtney Anderson and Troy

Hines approached him about selling heroin. Charles met with them three to four times a day to

purchase one half of a gram of heroin. Charles would call the phone number 740-821-5574 to set

up his purchases of drugs. Courtney Anderson and Troy Hines would also stop at Sadler’s house

to break up and package heroin for purchases. Charles met Smith towards the end of November

2013. Charles testified that Smith had answered his call to the 5574 phone number; and they set

up a meeting in the east end of Portsmouth. Charles met Smith to buy drugs on three separate

occasions.

        {¶ 14} Charles’s brother, William Sadler, also testified at trial. According to William,

several co-defendants in this case would go to his brother’s residence and “chop up” dope.

William also bought drugs from Smith after calling the 5574 phone number. In addition, William

testified that Smith, Courtney Anderson, and Ronald Fields assaulted him while in prison.
Scioto App. No. 15CA3686                                                                             7


According to William, the incident occurred because his brother Charles was listed on the

discovery for this case.

        {¶ 15} Tiffany Slusher was another one of the State’s witnesses. Slusher knew Smith,

Courtney Anderson, Troy Hines, Ronald Fields, and others. Slusher testified that they would

bring tar heroin the size of a small watermelon to prepare it for street purchases. Slusher called

the 5574 phone number to set up her own purchases of heroin. Slusher saved the phone number

to her phone under the name “22nd Blood Line.” Slusher testified that Courtney Anderson and

Troy Hines made references to each other about the gang. Slusher bought drugs through the 5574

phone number from June 2013 to March 2014. Slusher testified that she met Smith in January

2014. According to Slusher, Smith supplied her with heroin on three occasions. Slusher would

pay Smith “through sex.”

        {¶ 16} Michael Blackburn also testified on behalf of the State. Blackburn bought drugs

from Smith and the other co-defendants from October 2013 to March 2014. Blackburn stated that

he called a number in order to set up a purchase; however, he did not identify the 5574 phone

number. Blackburn testified that he bought from Smith about five to ten times.

        {¶ 17} State witnesses Jennifer Medve and Stephanie Nuckols testified that they

observed Smith and some of the co-defendants in this case preparing heroin for street buys.

Medve testified that Smith and several of the co-defendants came to the residence, where she

was living at the time with a boyfriend, in order to prepare black tar heroin for purchasing.

Medve testified that they would hit a large size portion of the black tar heroin with a hammer,

breaking it into smaller pieces. Then, they would weigh the heroin and put it into individual

bags.
Scioto App. No. 15CA3686                                                                          8


       {¶ 18} Nuckols, a co-defendant in this case, met Smith and Troy Hines in Portsmouth

around the end of 2013. Nuckols testified that Smith asked her if she “messed around” with

drugs. Smith gave her the 5574 phone number. That same day, Nuckols called the phone number

and purchased black tar heroin and crack cocaine. Nuckols also purchased heroin from co-

defendants Orlando Smith, Troy Hines, Courtney Anderson, Kelvin Hayden, Ronald Fields and

Jason Turner by calling the 5574 phone number. Nuckols testified that she would most often buy

drugs from Troy Hines and Smith. Nuckols also testified that she witnessed Smith and Troy

Hines prepare a large chunk of black tar heroin for street purchases.

       {¶ 19} Sarah Schuman also testified as a witness for the State. Schuman testified that she

first met Smith and co-defendant Kelvin Hayden at a Portsmouth bar, when a friend of hers

bought heroin. Schuman testified that Smith, co-defendants Jason Turner, Courtney Anderson,

and others came to her house from March until June 2014 to prepare drugs for street purchase.

During this time, Schuman had been in contact with Detective Sergeant Josh Justice. It was

revealed during cross-examination that Schuman had been a confidential informant for local

police in exchange for monetary payment.

       {¶ 20} Schuman testified that on June 9, 2014, Smith arrived at her house with co-

defendants Vernita Williams, Orlando Smith, and Ronald Fields. According to Schuman, Smith

and Fields went into her house and cut up heroin. As the four individuals left Schuman’s

residence, Schuman called Justice. Schuman informed Justice about the car’s description, the tag

number, and the car’s occupants. Police would later stop the vehicle.

       {¶ 21} The next day, Josh Turner showed up at Schuman’s house. Schuman testified that

he needed to use her phone. Turner needed to change the 5574 number to a new phone, since

police confiscated the old one during the traffic stop on June 9, 2014. Schuman testified about
Scioto App. No. 15CA3686                                                                            9


other co-defendants continuing to sell drugs after the arrests made on June 9, 2014 and June 10,

2014.

        {¶ 22} Sergeant John Koch and Detective Jodi Conkel testified regarding the June 9,

2014 traffic stop and Smith’s subsequent arrest. Koch testified that Smith was sitting in the back

passenger seat; Vernita Williams was driving; Ronald Fields was in the back driver seat; and

Orlando Smith was sitting in the front passenger seat. After police stopped the vehicle, a canine

conducted a sniff of the vehicle and alerted to the presence of drugs. After all the vehicle’s

occupants were taken back to the Scioto County jail, Koch interviewed Orlando Smith. Koch

also testified that he photographed Smith’s tattoos. On cross-examination, Koch stated that no

dope was found on Smith during the traffic stop.

        {¶ 23} Conkel testified that she was “brought in” to search Vernita Williams. Conkel

testified that Vernita Williams voluntarily removed drugs from her vaginal cavity. Conkel also

testified that Vernita told her that the drugs belonged to Smith. According to Conkel, Vernita

said that “Mr. Smith” threw the drugs to her to hide them. Conkel testified that she believed

Vernita was referring to Thomas Smith, the defendant-appellant, and not Orlando Smith.

        {¶ 24} The State’s final witness was Detective Sergeant Josh Justice of the Portsmouth

Police Department. Justice is a member of the Southern Ohio Drug Task Force. Justice testified

that his investigation into drug activity involving members of the 22nd Street Bloods began in

2011. Justice first investigated co-defendants, Andre Gilliam and Ronald Field, in 2011. Justice

testified that the Portsmouth Police Department monitored gang activity and worked with the

Columbus Police Department, mentioning specifically Detective Vass. Justice testified that in

2013, law enforcement learned through another one of the State’s witnesses, Michael Blackburn
Scioto App. No. 15CA3686                                                                            10


that a criminal street gang was using the phone number 740-821-5574 to set up drug purchases in

Scioto County.

       {¶ 25} Justice gathered intelligence from other law enforcement to get information from

traffic stops involving Andre Gilliam, Orlando Smith, Brittanee Baker, Troy Hines, Ronald

Fields, John Kullum, and Courtney Anderson. Justice learned that these individuals were

involved in traffic stops where small amounts of marijuana were discovered. Justice testified that

police began to put together a group of individuals, associated with the 22nd Street Bloods,

operating in Portsmouth, Ohio. From there, Justice interviewed a confidential informant in

January 2014 and Jennifer Medve in February 2014. Justice set up a wired purchase, where

Medve bought drugs from Courtney Anderson. In setting up the buy, Courtney Anderson

answered a call to the 5574 phone number. Thereafter, Justice obtained a subpoena of the phone

records from the 5574 phone number. The phone records showed that from January 1, 2013 to

June 15, 2014 the 5574 phone number had a total of approximately 111,000 incoming calls and

28,000 outgoing calls.

       {¶ 26} Justice testified regarding the major arrests of the co-defendants in this case. On

June 9, 2014, on information from Sarah Schuman, a State’s witness in this case, police

completed a traffic stop of a vehicle containing Smith along with co-defendants Vernita

Williams, Orlando Smith, and Ronald Fields. A police canine alerted to the presence of drugs on

the vehicle. The police located crack cocaine and heroin on Vernita Williams, along with crack

cocaine on Orlando Smith. Police confiscated several phones from the traffic stop as well. Justice

testified that a black Motorola, claimed by Smith, was the deal phone with the 5574 number. The

next day, on June 10, 2014, Justice received a request for a canine after a fellow officer had

stopped a vehicle occupied by Keguan Skinner-Byrd and Courtney Anderson. Police again
Scioto App. No. 15CA3686                                                                          11


seized drugs and cell phones from the vehicle. Two phones seized during that traffic stop were

registered with the 5574 phone number. However, only one was active. On July 1, 2014, police

stopped a vehicle driven by Jason Turner. Sarah Schuman had once again supplied information

to Justice that led to the traffic stop. From the stop of Turner, police seized drugs and three

cellphones, one of which was registered with the 5574 phone number.

       {¶ 27} Smith testified as the only defense witness. Smith stated that he became an official

member of the 22nd Street Bloods when he was 15 years old. Smith testified about his

upbringing and his family’s involvement with the gang. Smith’s uncle was Dartangnan Hill, an

original member of the gang. Smith’s younger brother, Richard, was also a gang member. Smith

was incarcerated from 2009 until November 2013 because of convictions of having weapons

under disability and possession of drugs. Smith testified that while he was an active gang

member in 2009, the death of his younger brother Richard and his incarceration motivated him to

leave the gang life. According to Smith, his departure from the gang resulted in beatings from

other gang members while in prison. Smith testified that these fights led to infractions on his

prison record.

       {¶ 28} After his release from prison, Smith became a promoter at a club named Rachel’s.

Smith would receive payment from the club under the table as he testified that he could not

provide W-2s from his work there. Smith testified that he tried to convince his brother Orlando

to move back to Columbus with him. A CPD officer had shot Orlando while Smith was

incarcerated. However, Orlando continued living in Portsmouth. Smith testified that he made

trips to Portsmouth to check on Orlando. During his trips to Portsmouth, Smith went to bars in

town and met several woman including Tiffany Slusher, Stephanie Nuckols and Sarah Schuman.

Smith testified that he developed a relationship with Schuman.
Scioto App. No. 15CA3686                                                                             12


       {¶ 29} Smith denied selling drugs to either Stephanie Nuckols or Tiffany Slusher. Smith

also denied going into Sarah Schuman’s house to chop up heroin. Smith did testify that he went

over to her house with Ronald Fields that day, but Smith insisted it was only to pursue his

relationship with her. Smith testified that he did not claim the “dope phone” during the June 9

traffic stop. Smith denied ever having anything besides marijuana in his possession while he was

in Scioto County. Smith also testified that he did not participate in the gang while he was in

Scioto County.

       {¶ 30} At the conclusion of the trial, the jury returned guilty verdicts for all but two of

the indicted counts.3 For Count 1, engaging in a pattern of corrupt activity, the trial court

sentenced Smith to 7 years in prison. The trial court merged Count 2 with Count 1. For Count 11,

trafficking in drugs/heroin/major drug offender, the trial court sentenced Smith to 11 years in

prison. For Count 12, trafficking in drugs/heroin/major drug offender, the trial court sentenced

Smith to 11 years in prison. For Count 13, trafficking in drugs/heroin/major drug offender, the

trial court sentenced Smith to 11 years in prison. For Count 16, trafficking in drugs/heroin the

trial court sentenced Smith to 36 months in prison. The trial court merged Count 17 with Count

16. For Count 18, trafficking in drugs/cocaine, the trial court sentenced Smith to 10 years in

prison. The trial court merged Count 19 with Count 18. The trial court merged Count 27 with

Count 11. For Count 28, participating in a criminal gang, the trial court sentenced Smith to 8

years in prison. Finally, for Count 38, trafficking in drugs, the trial court sentenced Smith to 12

months in prison. The trial court ordered the sentences for Counts 11, 12, and 13 to run

concurrently with each other, but consecutively to the sentences for Counts 1, 2, 16, 17, 18, 19,




3
 The State did not submit Count 10 to the jury. The jury returned an unsigned verdict form for
Count 15.
Scioto App. No. 15CA3686                                                                            13


27, 28, and 38. Thus, the trial court sentenced Smith to an aggregate total of 40 years in prison

with 38 of those years being mandatory.

       {¶ 31} Smith then filed this timely appeal.

                                     II. Assignments of Error

Assignment of Error I

       Thomas’s right to a fair trial was violated by a plethora of prosecutorial

       misconduct. * * *4

Assignment of Error II

       Trial Counsel was ineffective. * * *

Assignment of Error III

       Thomas’s Sixth Amendment right to confront the witness against him was

       violated. * * *

Assignment of Error IV

       The cumulative nature of the errors that occurred during Thomas’s trial, as

       presented within Assignments of Error I, II, and III, denied Thomas his right to a

       fair trial and due process of law. * * *

Assignment of Error V

       The trial court erred in sentencing Thomas.* * *

                                      III. Law and Analysis

                     A. Assignment of Error I − Prosecutorial Misconduct

       {¶ 32} In his first assignment of error, Smith asserts that multiple instances of

prosecutorial misconduct denied him of his right to a fair trial.


4
  We have eliminated Smith’s cites to the law and the record from his assignments of error, as
indicated by the ellipses.
Scioto App. No. 15CA3686                                                                               14


       {¶ 33} “The test for prosecutorial misconduct is whether the conduct was improper and,

if so, whether the rights of the accused were materially prejudiced.” State v. Leonard, 4th Dist.

No. 08CA24, 2009-Ohio-6191, ¶ 36, citing State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659,

780 N.E.2d 221, ¶ 45. “The ‘conduct of a prosecuting attorney during trial cannot be grounds for

error unless the conduct deprives the defendant of a fair trial.’ ” Id., quoting State v. Givens, 4th

Dist. No. 07CA19, 2008-Ohio-1202, ¶ 28, in turn quoting State v. Gest, 108 Ohio App.3d 248,

257, 670 N.E.2d 536 (8th Dist.1995). “Prosecutorial misconduct constitutes reversible error only

in rare instances.” State v. Edgington, 4th Dist. No. 05CA2866, 2006-Ohio-3712, ¶ 18, citing

State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993). “The ‘touchstone of analysis *

* * is the fairness of the trial, not the culpability of the prosecutor. * * * The Constitution does

not guarantee an “error free, perfect trial.” ’ ” (Alterations sic.) Leonard at ¶ 36, quoting Gest at

257.

       {¶ 34} As an initial matter, we note that Smith did not object to some of the alleged

instances of prosecutorial misconduct. Failure to object to an alleged error waives all but plain

error. State v. Keeley, 4th Dist. Washington No. 11CA5, 2012-Ohio-3564, 2012 WL 3194355, ¶

28. “Notice of Crim.R. 52(B) plain error must be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id., citing State

v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 16; State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “To find plain error, we

must be able to say that, but for the alleged error, the outcome of trial clearly would have been

otherwise.” Id., citing State v. McCausland, 124 Ohio St.3d 8, 2009-Ohio-5933, 918 N.E.2d 507,

¶ 15; State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 50.

              1. The State did not improperly shift the burden of proof to Smith.
Scioto App. No. 15CA3686                                                                           15


       {¶ 35} Smith claims that the State improperly shifted the burden of proof to the

defendant. Smith did not make an objection to the State’s conduct at trial. Accordingly, we will

review these claims for plain error.

       {¶ 36} First, Smith asserts that during its cross-examination, the State attacked his

invocation of the presumption of innocence. Smith cites the following testimony:

       [Prosecutor]: So, it doesn’t make any difference whether you’re active or

                       inactive?

       [Smith]:        It does.

       [Prosecutor]: It may to you.

       [Smith]:        Because I’m not - - I’m not guilty until proven innocent, sir. The

                       charge is a charge. I’m not convicted of that charge. I’m guilty - -

                       I’m innocent until proven guilty.

       [Prosecutor]: That’s what you say.

       {¶ 37} After a review of the trial transcript, Smith cited to just a portion of the testimony.

The State began this particular line of questioning by asking Smith about the statement he gave

to police on June 9, 2014. In the statement, Justice wrote that Smith had said that he was “a

member of the 22nd Street Bloods Gang.” During its cross-examination of Smith, the State asked

Smith if, in the statement, he admitted to being a member of the 22nd Street Bloods. Smith

replied that he told Justice that he was an inactive member. The State continued to ask Smith

whether it made any difference if he was an inactive or active member. Then the cited testimony

occurred.

       {¶ 38} Smith claims that the prosecutor’s words attacked his invocation of the

presumption of innocence. However, “[i]solated comments by a prosecutor are not to be taken
Scioto App. No. 15CA3686                                                                            16


out of context and given their most damaging meaning.” State v. Jackson, 4th Dist. Pickaway

No. 11CA20, 2012-Ohio-6276, ¶ 48, quoting State v. Carter, 89 Ohio St.3d 593, 603, 734

N.E.2d 345 (2000). Given the context of the testimony regarding Smith’s statement the comment

does not appear to be an outright challenge of Smith’s presumption of innocence but the State’s

response to the ongoing testimony about what exactly Smith had said in the June 9, 2014

statement. For those reasons, we do not find that the prosecutor’s statement rose to the level of

prosecutorial misconduct.

        {¶ 39} Next, Smith claims that the prosecutor shifted the burden of proof during closing

arguments by stating the following:

       [Prosecutor]: You heard the State’s case and you put that in one hand. You hear

                       the State’s case, and then you weigh that. Typically, when you hear

                       the State’s case the scales of justice tip that way, because you hear

                       one side of the case. Then you hear the defendant’s side of

                       the case and then do they tip back. Do they tip back or do they

                       stay there? And that’s up to you to decide, the weight of the

                       case, the weight of the evidence in the case.

                       ***

                       What corroborates what he just said? You know they’re going to

                       come up and say nothing corroborates what the State says,

                       but, oh, that doesn’t apply to him, he can read the Wall Street

                       Journal. No, folks, this an open case [sic], and there’s an open door

                       back there. They can bring in whoever they want. What do they
Scioto App. No. 15CA3686                                                                         17


                       do? Do they bring in any of these witnesses? They accuse the State

                       of not doing that. Did he, no. No it’s a two way street.

                       * * * when you weigh it, there’s nothing against it. Scales go like

                       that. There’s nothing in there to bring the Defendant’s - - the

                       scales back for the Defendant. They offered nothing.

Smith argues that the prosecutor’s comments were “egregiously misleading.” Further, Smith

contends that the comments misled the juror into believing that he had to produce corroborating

evidence, witnesses, and explanations and if he did not, he should be found guilty.

       {¶ 40} This Court previously set forth in Wellston v. Horsley, 4th Dist. Jackson No.

05CA18, 2006-Ohio-4386, the standard that applies when evaluating claims that the prosecutor

engaged in misconduct during closing argument:

       During closing arguments, the prosecution is given wide latitude to convincingly

       advance its strongest arguments and positions. See State v. Phillips (1995), 74

       Ohio St.3d 72, 90, 656 N.E.2d 643; Treesh, 90 Ohio St.3d at 466. Nevertheless,

       the prosecutor must avoid going beyond the evidence presented to the jury in

       order to obtain a conviction. See, e.g., State v. Smith (1984), 14 Ohio St.3d 13, 14,

       470 N.E.2d 883. “[P]rosecutors must be diligent in their efforts to stay within the

       boundaries of acceptable argument and must refrain from the desire to make

       outlandish remarks, misstate evidence, or confuse legal concepts.” State v. Fears

       (1999), 86 Ohio St.3d 329, 332, 715 N.E.2d 136.

Wellston at ¶ 21.

Also, “[i]t is not improper for the prosecution, in closing, to point out the lack of evidence

supporting the defense theory of the case.” State v. Jackson, 8th Dist. Cuyahoga No. 76141, 2000
Scioto App. No. 15CA3686                                                                           18


WL 426556, *11 (April 20, 2000), citing State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d

906 (1986). “The prosecution is not prevented from commenting upon the failure of the defense

to offer evidence in support of its case.” Williams at 20, citing Lockett v. Ohio, 438 U.S. 586,

595, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); State v. Lane, 49 Ohio St.2d 77, 86, 358 N.E.2d

1081 (1976).

       {¶ 41} After reviewing the prosecutor’s remarks during closing arguments, we do not

find that the remarks were improper. In context, the prosecutor was discussing the weight of the

State’s witnesses and challenging Smith’s testimony. The prosecutor did not go beyond the wide

latitude the parties enjoy during closing arguments. See Wellston at ¶ 21. Accordingly, we do not

find that the prosecutor’s arguments improperly shifted the burden of proof.

 2. The State did not misrepresent evidence to materially prejudice Smith’s right to a fair

                                               trial.

       {¶ 42} Next, Smith argues that on two separate occasions the State misrepresented

evidence. First, Smith alleges that the State misrepresented evidence during the State’s cross-

examination of his testimony. The State asked Smith about his working relationship with a bar

named Rachel’s. On direct examination, Smith testified that he hosts and promotes parties for the

bar. Smith admitted that the bar paid him under the table and that he did not have any W-2s that

would demonstrate the income. Smith cites to the following testimony in his claim that the State

misrepresented evidence:

       [Prosecutor]: Parties have nothing to do with Rachel’s, do they?

       [Smith]:        Yes.

       [Prosecutor]: No, you come and you bring your gang in there and you provide security

                       in there during that time that others come.
Scioto App. No. 15CA3686                                                                            19


Defense counsel objected to the State’s statement. The trial court overruled defense counsel’s

objection citing the latitude of cross-examination. The State’s questioning continued as follows:

        [Prosecutor]: You heard Vass testify the other day?

        [Smith]:        Yes, sir.

        [Prosecutor]: Okay. And you heard him say that this is a common thing to take

                        these flyers and put them up in bars or take the gangs to the bars

                        and have - - throw a party and it doesn’t have anything to do with

                        the bar?

        [Smith]:        No, sir. I never heard him say that at all. I never heard him talk

                        about any parties or flyers at all, sir.

Smith contends that the State knowingly misrepresented Vass’s testimony in order to introduce

into evidence that his business was not legitimate.

        {¶ 43} After a review of the record, Vass did not testify that the gang threw parties in

clubs and “it doesn’t have anything to do with the bar.” Vass did testify that the gang members

would frequent a nightclub known as Club Visions, particular on Thursday nights. Also, Smith

did testify about his promoting business during direct examination. Therefore, the State’s initial

question was not improper. However, it was improper for the State to ask its follow up question

that referenced testimony that did not occur.

        {¶ 44} Nevertheless, we do not find that the State’s question materially prejudiced

Smith’s right to a fair trial. Before the State asked its initial question pertaining to the gang

providing security to the bar, Smith had already stated that he did not receive any W-2s for his

work as a promoter. Therefore, the notion that Smith’s business was not legitimate was already

presented to the jury before the State’s questions. Also, the State moved on from the question
Scioto App. No. 15CA3686                                                                           20


and continued asking independent questions about Smith’s business. Accordingly, considering

the context here, we do not find that the State’s question resulted in prosecutorial misconduct.

        {¶ 45} Smith also alleges that the State misrepresented evidence during closing

argument. Smith argues that the State mischaracterized his testimony regarding his brother,

Orlando Smith. Smith cites the following arguments made by the State during closing arguments:

“Even if you decide you believe that this man came down here to protect his brother, providing

security for a guy you know is slinging dope all over Scioto County, is [sic] called aiding and

abetting and trafficking in drugs. I hate to say it, but that’s the truth.”

        {¶ 46} In support of his argument, Smith cites to his own testimony regarding his brother

Orlando:

        [Prosecutor]: Let me ask you this. How - - how are you going to save your

                        brother?

        [Smith]:        I mean, as - - as hard as I can. As - - as much as I can - - as much

                        as I can beat in his ear, like Bro, this is - - we don’t got to do

                        this. I got something else. I’m doing something. Like, I’m making

                        money. We don’t - - you don’t got to kick it with these guys.

                        Like, as much as I can beat it in his head and try to get him to

                        realize that he shouldn’t be doing this, I’m going to try to do that.

                        This is my brother. This is all I have left. I’m going to give my all

                        in order to save my father figure.

Smith contends that it was improper for the State to mischaracterize his testimony in such a way

that suggests he admitted to providing security for Orlando and then to use that admission as

evidence of aiding and abetting.
Scioto App. No. 15CA3686                                                                           21


       {¶ 47} In response to this argument, the State argues that the evidence supported the

closing arguments. According to the State, the testimony demonstrated that Smith made

hundreds of hand to hand sales to seven different witnesses from the time he came to Scioto

County in November 2013 until his arrest on June 9, 2014.

       {¶ 48} Smith did not object to the State’s arguments; therefore, we will review this claim

for plain error. Here, Smith is correct in pointing out that he did not testify that he was providing

security for his brother. However, Smith did testify that he knew his brother and some of the

other co-defendants in this case were bringing drugs from Columbus to Portsmouth. Therefore,

the prosecutor did partially misrepresent Smith’s testimony. Examining the State’s arguments in

context, however, we do not find that the prosecutor went beyond the wide latitude allowed

during closing arguments to materially prejudice Smith’s right to a fair trial. See Wellston, 2006-

Ohio-4386 at ¶ 21. Therefore, we do not find that the State’s argument constituted prosecutorial

misconduct.

       {¶ 49} Lastly, Smith claims that the State misrepresented evidence during closing

argument when a prosecutor told the jury that Smith was “determined by the Department of

Corrections to be active while incarcerated.” Smith asserts that this statement is not true. Smith

avers that Vass was unable to explain how the DOC determines a prisoner’s classification after

they are released.

       {¶ 50} During his direct examination by the State, Vass testified that the gang unit within

the DOC sends the CPD intelligence reports of any activity of documented gang member that are

incarcerated. During Smith’s cross-examination of Vass, he testified that a DOC report listed

Smith as an active gang member. The DOC report was admitted into evidence as part of the gang

book. There was extensive cross-examination and redirect examination with Vass on this issue.
Scioto App. No. 15CA3686                                                                      22


Vass admitted that his own opinion that Smith was an active gang member was based upon the

DOC report. Therefore, the State’s argument was within the scope of the evidence. See Wellston,

at ¶ 21 Accordingly, we do not find that the State’s comments during closing argument were

improper.

                  3. The State did not improperly vouch for its own witness.

       {¶ 51} Next, Smith contends that the State improperly vouched for a crucial witness.

Smith argues that during the State’s redirect examination of Sarah Schuman, it improperly

“invoked the imprimatur of the court to increase [Schuman]’s credibility.” The relevant

testimony was as follows:

       [Prosecutor]: You’ve testified against heroin traffickers in this county before?

       [Schuman]:      Yes.

       [Prosecutor]: The one out here where they had to stop traffic and arrested three

                       of them coming from Cincinnati?

       [Schuman]:      Yes.

       [Prosecutor]: And you testified in that case?

       [Schuman]:      Yes, I did.

       [Prosecutor]: Okay. Judge Harcha made a ruling in that case about your

                       credibility, didn’t he?

       [Schuman]:      Yes, he did.

       [Prosecutor]: And he said you were a most credible witness?

       [Schuman]:      Yes, he did.

The State referenced this testimony during closing arguments by stating that Schuman had “been

declared by other courts to be reliable.”
Scioto App. No. 15CA3686                                                                          23


       {¶ 52} Smith did not object to the State’s line of questioning, thus we review this claim

of misconduct for plain error. Smith claims that a court may not be used to vouch for a witness’s

credibility. According to Smith, Schuman’s testimony was crucial, as it directly conflicted with

his own testimony. Smith claims that the prosecutor’s actions were unacceptable, contributed to

the jury’s credibility assessment, and thus affected the outcome of the trial.

       {¶ 53} In rebuttal, the State claims that Schuman was vigorously questioned about her

motives for contacting the police, why she was not indicted, about getting paid by police, and

about her general integrity and veracity during cross-examination. The State also asserts that

Smith’s citation to the closing arguments omits the context to the prosecutor’s comments.

Specifically, the State cites to its closing argument and adds emphasis as follows:

       [Prosecutor]: You heard the testimony from both Sarah Schuman and Sergeant

                       Justice that Schuman is a reliable confidential informant. She’s

                       testified in court before. She’s been declared by other courts to be

                       reliable. But that’s your decision in here. You decide whether she’s

                       reliable.

The State contends that its questions and closing arguments are fair comment on the questions

asked by Smith.

       {¶ 54} “A prosecutor does not improperly vouch for a witness’s credibility by arguing,

based upon the evidence, that a witness was ‘a reliable witness to the simple events she

witnessed, that she lacked any motive to lie, [or] that her testimony was not contradictory.’ ”

State v. Reine, 4th Dist. Scioto No. 06CA3102, 2007-Ohio-7221, ¶ 63, quoting State v. Green, 90

Ohio St.3d 352, 373-374, 738 N.E.2d 1208 (2000). “Furthermore, a prosecutor’s statement on

witness credibility is not an improper voucher if it neither implies knowledge of facts outside the
Scioto App. No. 15CA3686                                                                           24


record nor places the prosecutor’s personal credibility at issue.” State v. Keene, 81 Ohio St.3d

646, 666, 693 N.E.2d 246 (1998). “A prosecutor may argue facts in evidence to support a

witness’s credibility and may respond to defense attacks on the witness’s credibility and mental

abilities.” Id., citing Green at 374; State v. Woodard, 68 Ohio St.3d 70, 76, 623 N.E.2d 75

(1993).

          {¶ 55} Here again, because Smith did not object to the State’s question or its closing

arguments, we must decide if the State’s conduct constituted plain error. The prosecutor posed a

question to Schuman; and Schuman provided an answer to the question. Smith did not object to

the question at trial. Because the prosecutor did not express a personal voucher, we are unable to

find that the question constituted prosecutorial misconduct. Examining the prosecutor’s

arguments during closing, again, there is no personal voucher to Schuman’s credibility. Instead

the prosecutor invoked the prior testimony of Justice and Schuman. Therefore, we do not find

that the State’s argument went beyond the wide latitude afforded to parties during closing

arguments. See Wellston, 2006-Ohio-4386 at ¶ 21. Furthermore, the State argued to the jury that

it was their choice whether to find Schuman credible or not. Also, Smith’s cross-examination of

Schuman focused heavily on her credibility and motive for testifying. Accordingly, for those

reasons, we do not find that the State’s question to Schuman and its corresponding closing

arguments resulted in prosecutorial misconduct.

   4. The State did not improperly express personal opinions that materially prejudiced

                                     Smith’s right to a fair trial.

          {¶ 56} Next, Smith contends that the State improperly expressed personal opinions about

his guilt and used the power of the prosecutor’s officer to “elevate the credibility of their

witnesses.” Also, Smith argues that the State inappropriately referenced Smith’s co-defendants’
Scioto App. No. 15CA3686                                                                          25


guilty pleas. Smith did not object to the State’s statements; thus, we will review these claims of

misconduct for plain error.

        {¶ 57} Prosecutors “ ‘may not express their personal beliefs or opinions regarding the

guilt of the accused.’ ” State v. Marcum, 4th Dist. Gallia No. 12CA6, 2013-Ohio-5333, ¶ 63;

quoting State v. Topping, 4th Dist. No. 11CA6, 2012-Ohio-5617, ¶ 85; in turn quoting State v.

Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). “While it is improper for a prosecutor to

state that the defendant is a liar or that he believes the defendant is lying, a prosecutor may

suggest that the evidence demonstrates the defendant is lying, scheming, or has ulterior motives.”

State v. Irwin, 7th Dist. Columbiana No. 11-CO-6, 2012-Ohio-2704, ¶ 116, citing State v.

Kroger, 12th Dist. Clermont No. CA99-05-050, 2000 WL 342130, *2 (Apr. 3, 2000).

       {¶ 58} First, Smith contends that the prosecutor’s remarks that his testimony was “a sack

of bologna” “conveyed to the jury that the State knew [Smith] was lying and was guilty even if

the evidence they were able to present was minimal or unpersuasive.” At the beginning of the

State’s cross-examination of Smith, the relevant testimony was as follows:

       [Prosecutor]: Are you going to look at this jury and tell them that you just said

                       for the last 45 minutes was anything close to the truth?

       [Smith]:        Yes, sir, just like I have for the last 45 minutes.

       [Prosecutor]: You’re telling this jury that what you said for the last 45 minutes

                       wasn’t a sack of bologna to get you out of something that you got

                       yourself into?

       [Smith]:        Yes, sir, That’s exactly what I’m telling the jury, that none of this

                       was a sack of bologna.
Scioto App. No. 15CA3686                                                                              26


        [Prosecutor]: It’s a sack of bologna. All right. Now you talked about and gave us

                        a part of your family like, and you said Dartangnan Hill was you

                        uncle?

        ***

        {¶ 59} The State’s comments were improper. The prosecutor made the remarks at the

beginning of his cross-examination, essentially stating his opinion that Smith’s testimony during

direct examination was not the truth. During his testimony, Smith denied most of the testimony

provided by the State’s witnesses. Therefore, the jury was aware of the direct conflict between

the testimony of the State’s witnesses and the testimony of Smith. Accordingly, even though we

find that the State’s comments were improper, we do not find that the prosecutor’s remarks

materially prejudiced his right to a fair trial, nor affected the outcome of the trial resulting in

plain error.

        {¶ 60} Next, Smith argues that during closing arguments, the State invoked the

imprimatur of the prosecutor’s office in an effort to bolster the credibility of its case. Smith

claims the following statements during closing argument were improper:

        [Prosecutor]: Now, oh gee, well, why didn’t you indict them? Why didn’t you

                        indict them? Well let me tell you one thing, and I say this very

                        definitely, we’re - -that authority is put in the Prosecuting Attorney

                        of Scioto County. You elect him, he does what he thinks is right.

                        That authority is put in his hands. We make the decisions. We

                        make the decisions before they get to you. Why wouldn’t we - -

                        gee, why wouldn’t we indict all these folks? Why wouldn’t we
Scioto App. No. 15CA3686                                                                           27


                       indict-- well, we did indict them all. Why wouldn’t we (inaudible)?

                       Why did they all plead guilty?

        {¶ 61} Smith claims that there are two issues with the State’s arguments. First, Smith

contends that the prosecutor used the status of his office to elevate the credibility of the

witnesses. Second, Smith asserts that the prosecutor introduced the fact that Smith’s co-

defendants pleaded guilty. Smith argues that “[t]he inference likely drawn from this is that the

prosecutor correctly predicted the guilt of the individuals involved in the conspiracy and that

they must have correctly presumed [Smith]’s guilt, too.”

       {¶ 62} In his appellate brief, Smith acknowledges that the State, in the above cited

remarks, was responding to the questions of bias among the State’s witnesses. In Smith’s closing

arguments he noted that many of the State’s witnesses had charges dropped or reduced in

exchange for their testimony. During Smith’s cross-examination of many of the State’s

witnesses, Smith’s counsel asked the witnesses about what deals were made in exchange for their

testimony.

       {¶ 63} We do not find that the State’s remarks improperly used the prosecutor’s office to

elevate the credibility of its witnesses. Instead, the remarks appear to suggest that the State stood

by their decisions regarding any deals that it made with their witnesses. Accordingly, we do not

find the prosecutor’s remarks to be improper.

       {¶ 64} Lastly, it is well settled that one person’s guilty plea or conviction may not be

used as substantive evidence of the guilt of another. State v. Clark, 2d Dist. Montgomery No.

13435, 1994 WL 171223, *7 (May 4, 1994), citing United States v. King, 505 F.2d 602 (5th

Cir.1974). Smith claims that the State improperly mentioned the guilty pleas of the co-

defendants during its rebuttal. However, Smith’s counsel referenced Smith’s 21 co-defendants
Scioto App. No. 15CA3686                                                                            28


during his closing argument before the prosecutor stated the cited arguments. Smith’s defense

counsel argued that the State’s witnesses were less credible because of the deals they made with

the State. Therefore, the State’s witnesses’ plea deals and other agreements in exchange for their

testimony were not solely discussed by the State. Smith mentioned those agreements to argue

that their testimony was not reliable. Accordingly, we do not find that the State’s arguments

mentioning the pleas of other co-defendant’s materially prejudiced Smith’s right to a fair trial.

               5. The State’s conduct did not violate Smith’s right to a fair trial.

         {¶ 65} Lastly, Smith contends that the cumulative effect of the prosecution’s conduct

warrants a new trial. We disagree. Here, we have found no instances of prosecutorial

misconduct. “And if ‘a reviewing court finds no prior instances of error, then the [cumulative-

error] doctrine has no application.’ ” State v. Jackson, 4th Dist. Pickaway No. 11CA20, 2012-

Ohio-6276, ¶ 52, quoting State v. McKnight, 4th Dist. Vinton No. 07CA665, 2008-Ohio-2435, ¶

108. Although we found that some of the prosecution’s remarks were improper, we did not find

any of them to constitute a violation of Smith’s substantive rights. Even considering them in

totality and not just separately, we still do not find that the prosecution’s conduct rose to an

improper level that requires a new trial. Accordingly, we overrule Smith’s first assignment of

error.

    B. Assignment of Error II – Smith’s Trial Counsel Was Not Ineffective for Failing to

                 Object to the Alleged Instances of Prosecutorial Misconduct.

         {¶ 66} In his second assignment of error, Smith argues that he was deprived of the

effective assistance of counsel, guaranteed by the Sixth Amendment to the United States

Constitution. Smith asserts that his trial counsel was ineffective because he failed to object to the

multiple alleged instances of prosecutorial misconduct.
Scioto App. No. 15CA3686                                                                           29


       {¶ 67} Criminal defendants have a right to counsel, including a right to the effective

assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d

763 (1970), fn. 14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008-Ohio-1366, ¶ 21. To

establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1)

that his counsel’s performance was deficient and (2) that the deficient performance prejudiced

the defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E .2d 904 (2001);

State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show deficient

performance, the defendant must prove that counsel’s performance fell below an objective level

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

probability that, but for counsel’s errors, the result of the proceeding would have been different.”

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure to

establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116,

2008-Ohio-968, ¶ 14.

        {¶ 68} “When considering whether trial counsel’s representation amounts to deficient

performance, ‘a court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.’ ” State v. Walters, 4th Dist. Washington Nos.

13CA33, 13CA36, 2014-Ohio-4966, ¶ 23, quoting Strickland at 689. “Thus, ‘the defendant must

overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.’ ” Id., quoting Strickland at 689. “ ‘A properly licensed attorney

is presumed to execute his duties in an ethical and competent manner.’ ” Id., quoting State v.

Taylor, 4th Dist. Washington No. 07CA1, 2008-Ohio-482, ¶ 10. “Therefore, a defendant bears
Scioto App. No. 15CA3686                                                                             30


the burden to show ineffectiveness by demonstrating that counsel’s errors were so serious that he

or she failed to function as the counsel guaranteed by the Sixth Amendment.” Id.

       {¶ 69} As we have already determined in our analysis of Smith’s first assignment of

error, none of the alleged instances of prosecutorial misconduct prejudicially affected Smith’s

right to a fair trial or affected the outcome of the trial. Therefore, Smith cannot demonstrate that

but for his trial counsel’s failure to object, the outcome of his trial would have been different.

Accordingly, we do not find that Smith’s trial counsel was ineffective. Smith’s second

assignment of error is overruled.

                      C. Assignment of Error III − Confrontation Clause

       {¶ 70} In his third assignment of error, Smith alleges two violations of his Sixth

Amendment right to confront the witnesses against him. First, Smith contends that Vass’s

opinion that he was an active gang member violated his right to confrontation because Vass did

not rely on his own knowledge or experience, but instead on another agency’s assessment.

Second, Smith claims that the trial court violated his right to confrontation by allowing the

admission of the criminal predicate statement and the gang book into evidence. Smith argues that

the documents, marked as State’s Exhibits 4 and 5, contain testimonial hearsay evidence,

specifically, numerous police reports prepared by police officers who did not testify at trial.

       {¶ 71} In rebuttal, the State argues that the contents of theses documents are admissible

as Vass’s opinions as an expert witness. The State asserts that the documents explain how Vass

arrived at his opinions as well as proving the elements of participating in a criminal gang.

       {¶ 72} As an initial matter, we must determine the appropriate standard of review.

During Vass’s testimony regarding the criminal predicate statement and the gang book, Smith

objected to the State’s questions. Smith’s trial counsel repeatedly argued that the gang activity
Scioto App. No. 15CA3686                                                                           31


reports, dating back to 2011 while Smith was incarcerated, were not relevant to the charges

against Smith. However, Smith never objected to Vass’s designation as an expert witness or that

his testimony violated his Sixth Amendment right to confrontation. Smith’s trial counsel also

made a broad objection to the admission of the State’s exhibits. Smith’s objections were noted in

the record as follows:

       [Court]:               Do you have any objections to the exhibits?

       [Defense Counsel]:     Not other than my - -

       [Prosecutor]:          What does that mean Bill?

       [Court]:               Standing objection.

       [Defense Counsel]:     - -standing objection. I mean, for summative of trial.

       [Prosecutor]:          Okay. He objects to all of them.

       [Court]:               All you - - your objection is to the

       [Defense Counsel]:     I object to - -

       [Court]:               all the evidence considered in the conspiracy and

                              everything. The Supreme Court says I have to allow it.

       [Prosecutor]:          And the criminal gang evidence.

       [Defense Counsel]:     Everything. Every picture that - - that doesn’t have my

                              client in it.

       [Court]:               Okay. All right. Then the exhibits will be admitted.

Although, Smith’s trial counsel objected to the admission of the State’s exhibits and to the

testimony regarding the criminal gang activity, counsel did not raise a specific objection based

on a violation of the Confrontation Clause.
Scioto App. No. 15CA3686                                                                            32


       {¶ 73} Evid.R. 103(A)(1) provides that a claim of error may not be predicated upon a

ruling that admits or excludes evidence unless a substantial right of the party is affected; and, if

the ruling is one admitting the evidence, the opponent of the evidence must raise a timely

objection to the evidence, stating the specific ground of objection, unless the ground of objection

is apparent from context.

       {¶ 74} Here, Smith failed to make a specific objection based on a violation of his Sixth

Amendment right to confrontation either during Vass’s testimony or during the time the State

moved to admit its exhibits. As a result, we may only determine whether admission of those

exhibits amounted to plain error. See State v. Judy, 4th Dist. Ross No. 08CA3013, 2008-Ohio-

5551, ¶ 16; see also State v. M.B., 10th Dist. Franklin No. 08AP-169, 2009-Ohio-752, ¶ 18.

“Notice of Crim.R. 52(B) plain error must be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Keeley, 2012-Ohio-3564 at

¶ 28, citing Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920 at ¶ 16; Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978) at paragraph three of the syllabus. “To find plain error, we

must be able to say that, but for the alleged error, the outcome of trial clearly would have been

otherwise.” Id., citing McCausland, 124 Ohio St.3d 8, 2009-Ohio-5933, 918 N.E.2d 507 at ¶ 15;

Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439 at ¶ 50.

       {¶ 75} “The Sixth Amendment’s Confrontation Clause provides, ‘In all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against

him * * *.’ ” State v. Maxwell, 139 Ohio St.3d 12, 9 N.E.3d 930, 2014-Ohio-1019, 9 N.E.3d 930,

¶ 34. The Confrontation Clause of the Sixth Amendment is made applicable to the states by the

Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904, fn. 4 (2001).

Consequently, this constitutional right applies to both federal and state prosecutions, but the right
Scioto App. No. 15CA3686                                                                           33


of confrontation in Article I, Section 10 of the Ohio Constitution provides no greater right of

confrontation than the Sixth Amendment. State v. Arnold, 126 Ohio St.3d 290, 2010–Ohio–2742,

933 N.E.2d 775, ¶ 12.

       {¶ 76} “The United States Supreme Court has interpreted [the Sixth Amendment right to

confrontation] to mean that admission of an out-of-court statement of a witness who does not

appear at trial is prohibited by the Confrontation Clause if the statement is testimonial unless the

witness is unavailable and the defendant has had a prior opportunity to cross-examine the

witness.” Maxwell at ¶ 34, 9 N.E.3d 930, citing Crawford v. Washington, 541 U.S. 36, 53–54,

124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford did not define the word “testimonial” but

stated generally that the core class of statements implicated by the Confrontation Clause includes

statements “ ‘made under circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial.’ ” 541 U.S. at 52, 124 S.Ct.

1354, 158 L.Ed.2d 177, quoting the amicus brief of the National Association of Criminal

Defense Lawyers.

   1. Vass’s testimony classifying Smith as an active gang member did not result in plain

                                               error.

       {¶ 77} First, we will address Smith’s claim that Vass’s testimony violated his Sixth

Amendment right to confrontation. Smith argues that Vass’s testimony that he was still an active

gang member was not based on Vass’s experience and knowledge. Instead, Smith asserts that

Vass was only relaying what other investigating officers or the DOC had concluded. Smith

claims that Vass’s testimony insulated the actual witness from cross-examination, such as those

who prepared the DOC report or Detective Sarah Cross of CPD, who compiled the gang book.
Scioto App. No. 15CA3686                                                                         34


       {¶ 78} During its direct examination of Vass, the State presented the following relevant

testimony:

       [Prosecutor]: * * *Where I’m going with that is, did you consider him to be an

                       active member of the 22nd Street Bloods before he went to prison

                       this last time?

       [Vass]:         Yes, ma’am.

       [Prosecutor]: Did you consider him to be an active member of the

                       22nd Street Bloods while incarcerated?

       [Vass]:         Yes, ma’am.

       [Prosecutor]: Okay. And do you consider him to be active now?

       [Vass]:         Yes, ma’am.

       [Prosecutor]: Okay. You’ve had an opportunity to review the evidence in this

                       case and you’ve got copies of all of that for your gang

                       documentation; is that right?

       [Vass]:         Yes, ma’am.

       [Prosecutor]: And using that you still declare him as an active member?

       [Vass]:         We do.

       {¶ 79} On cross-examination, Smith’s trial counsel questioned Vass about the basis of his

opinion. Smith’s trial counsel also followed up by stating that the gang book on Smith did not

contain any gang activity during Smith’s incarceration from 2010 to 2014. Vass testified that

according to a report obtained from the OLEG database, the DOC considered Smith to be an

active gang member as of November 2013, when Smith was released from prison. Vass also

testified that regardless of the CPD’s two-year active/inactive guideline, if the DOC lists
Scioto App. No. 15CA3686                                                                          35


someone as active, then that person will maintain an active status with CPD. Further relevant

testimony during Smith’s cross-examination of Vass was as follows:

       [Defense Counsel]:     So he can - -can - -be considered as an active status,

                              although there’s a five year gap where there’s no gang

                              activity.

       [Vass]:                That five years was when he was in prison. I - - I can’t

                              testify what happened while he was in prison is what I’m

                              saying.

       [Defense Counsel]:     Okay. But the - - but the OLEG

                              information should say what activity right?

       [Vass]:                Yeah. The OLEG will say he’s in a status - - an

                              active status. The Ohio Department of Corrections would

                              have to furnish the documentation to support that.

       [Defense Counsel:      If he was an active gang member in prison- -

       [Vass]:                Um hmm.

       [Defense Counsel]:     - -would there be documentation of it?

       [Vass]:                The Ohio Department of Corrections would have that

                              documentation.

       {¶ 80} The admission of Vass’s testimony would be error if he communicated out-of-

court testimonial statements directly to the jury in the guise of an expert witness. See United

States v. Lombardozzi, 491 F.3d 61, 78 (2d Cir.2007). Evid.R. 703 states, “[t]he facts or data in

the particular case upon which an expert bases an opinion or inference may be those perceived

by the expert or admitted in evidence at the hearing.” Here, it is without question that Vass relied
Scioto App. No. 15CA3686                                                                          36


on the DOC report to form his opinion that Smith was presently an active gang member. The

DOC report, which was obtained thorough OLEG was admitted into evidence as part of the gang

book. Beyond Smith’s general objection to all the State’s exhibits, Smith never made a specific

objection to the report’s admission based on hearsay, a violation of the Sixth Amendment, or

Vass’s designation as an expert witness.

        {¶ 81} The DOC report itself does not appear to be testimonial in nature, to wit: it is not

prepared for the primary purpose of accusing an individual or for providing evidence in a

criminal trial. See State v. Everson, 7th Dist. Mahoning No. 12MA128, --- N.E.3d ----, 2016-

Ohio-87 at ¶ 46. If the DOC report was not testimonial, there would be no violation of Smith’s

Sixth Amendment right to confront the witnesses against him. Further, where an expert witness’s

testimony constitutes his/her own original observations and opinions, there is no violation of the

Confrontation Clause, because the expert is available for cross-examination regarding them.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930 at ¶ 53. Ultimately, even if Vass’s

opinion based on the DOC report violated Smith’s Sixth Amendment right to confrontation, we

are still required to find plain error.

        {¶ 82} Reviewing Smith’s argument for plain error, we do not find that but for Vass’s

testimony the outcome of the trial would be different. Smith’s main contention here on appeal is

that Vass was able to opine that he was an active member solely based on a DOC report and not

any CPD investigations. However, the jury was made aware of Smith’s issues with Vass’s

testimony through extensive cross-examination. Vass admitted that he considered Smith an

active member even in the absence of any gang activity during Smith’s incarceration. Vass also

admitted that the DOC would have to furnish the information justifying his classification of

Smith as an active participant in the 22nd Street Bloods. Therefore, Smith’s trial counsel
Scioto App. No. 15CA3686                                                                            37


effectively cross-examined Vass on his opinion that Smith was an active gang member.

Accordingly, we do not find that Vass’s testimony that Smith was an active gang member

resulted in plain error.

2. Admission of the gang book and the criminal predicate statement did not result in plain

                                               error.

        {¶ 83} Smith also asserts that the admission of the criminal predicate statement, State’s

Exhibit 4, and the gang book, State’s Exhibit 5, violated his Sixth Amendment right to confront

the witnesses against him. Smith contends that the gang book and the criminal predicate

statement contain testimonial statements made by police officers and compiled in those

documents for the purpose of a future prosecution. Thus, because those officers did not testify at

trial, Smith argues his Sixth Amendment right to confront the witnesses against him was

violated.

        {¶ 84} The State argues that the gang book on Smith and the criminal predicate statement

on the 22nd Street Bloods are not “statement[s] contemplated by Crawford.” The State contends

that the “contents of the documents are admissible under these circumstances as the opinions of

an expert and how he arrived at those opinions as well as proving the elements of participation in

a criminal gang.”

        {¶ 85} The criminal predicate statement contains information purported to show that the

22nd Street Bloods are a criminal gang within the definition set forth in the Ohio Revised Code.

The exhibit is a binder that contains pictures of gang signs, tattoos that reference the gang,

graffiti, pictures of various members, and clothing indicating affiliation with the 22nd Street

Bloods. However, the exhibit most prominently contains approximately 45 pages of summaries

of criminal activity involving the 22nd Street Bloods dating back to 1996. The summaries often
Scioto App. No. 15CA3686                                                                              38


include the name(s) of the police officer(s) who filed a report, the police officer’s investigative

findings, and the names of one or more documented members of the 22nd Street Bloods. Smith is

named in some of these summaries. For example, the following statement is contained within the

criminal predicate statement:

       January 5, 2007 a CS contacted Detective Brooks with information on the

       ongoing activities of documented Deuce Deuce Blood member William “Dollar

       Bill” Morrison. The CS stated that William Morrison and Jerrell “Rebel

       Harrison [sic] had been seen in a house at 556 Stanley Avenue selling crack. At

       approximately 11:45PM Detective Brooks #2080, S/A Merimee of the DEA and

       several other CDP Patrol officers went to the area of 556 Stanley Avenue to find

       the Deuce Deuce Bloods.* * * Once inside the officers found Miller, as well as

       documented members Jerrell “Rebel” Harrison, William “Dollar Bill”

       Morrison, Thomas Smith [defendant-appellant] and Roy “T-Roy” Kendricks.

       Also found in the house was 16 baggies of marijuana, four red bandanas, three

       photos of Blood gang members, 31 rounds of ammunition, 1 hand gun clip, and

       on Smith’s cell phone a picture of Smith holding an assault riffle and covering his

       face with a red bandana.* * *

       {¶ 86} The gang book on Smith, like the criminal predicate statement, also contains

summaries of police investigations into Smith’s criminal activity. The gang book includes

pictures of Smith, some of his clothing, and his tattoos. The gang book contains 11 pages of

summaries of investigative reports dating back to 2001. In addition to the summaries of police

investigation, the gang book also contains full form “investigative reports” and “field interviews”

involving Smith. To illustrate, the following statement is included in the gang book on Smith:
Scioto App. No. 15CA3686                                                                          39


       September 19, 2006- Detective P. Brooks #2080 and Officer S. Wier #1486

       conducted surveillance on South 22nd Street an area known for Deuce Deuce

       Blood gang activity. Documented Deuce Deuce member Chasjuan Meeks was

       observed engaging in behavior that indicated he was conducting narcotics sales.

       Meeks was joined by documented Deuce Deuce member Courtney Anderson,

       and shortly after this Thomas Smith arrived in Anderson’s car. Smith took two

       bags from the car and walked off south on South 22nd Street. (SRB06-221)

       {¶ 87} Both the criminal predicate statement and the gang book on Smith contain

numerous summaries of police reports like the ones cited above. During trial, the State asked

Vass to read some of the entries. Vass read entries from the criminal predicate statement

concerning the gang’s criminal activities expanding into Charleston, West Virginia and

Portsmouth, Ohio. Vass also read an entry, dated October 27, 2006, stating that a Bureau of

Criminal Investigations Officer and a Drug Enforcement Agency Special Agent debriefed a

criminal informant about narcotics activities involving the 22nd Street Bloods, specifically that

gang member Andre Gilliam was selling crack in Portsmouth, Ohio.

       {¶ 88} Vass also read excerpts from the gang book on Smith dated May 10, 2007, March

20, 2008, December 26, 2008, and February 2, 2009. In its appellate brief, the State explains that

the criminal predicate statement and the gang book contain “a history of contacts with the police

since the Gang Unit was organized. The contacts include “* * *personal contacts, court contacts,

surveillance reports and reports filed by non-Gang Unit officers.” In its appellate brief, the State

argues that “[t]he contents of the documents are admissible under these circumstances as the

opinions of an expert and how he arrived at those opinions as well as proving the elements of

participation in a criminal gang.”
Scioto App. No. 15CA3686                                                                             40


       {¶ 89} In general, the core class of statements implicated by the Confrontation Clause

includes statements “made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later trial.” (Other

quotations omitted.) Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930 at ¶ 35, citing

Crawford, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177. Statements are testimonial “* *

*when the circumstances objectively indicate that there is no such ongoing emergency, and that

the primary purpose of the interrogation is to establish or prove past events potentially relevant

to later criminal prosecution.” Davis, 547 U.S. at 822, 126 S.Ct. 2266. Since the Crawford

decision, the United States Supreme Court has resolved a number of cases concerning the

Confrontation Clause. See Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180

L.Ed.2d 610 (2011); Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011);

Melendez-Diaz, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314; Giles v. California, 554 U.S.

353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); Indiana v. Edwards, 554 U.S. 164, 128 S.Ct.

2379, 171 L.Ed.2d 345 (2008); Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d

224 (2006); Williams v. Illinois, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012).

       {¶ 90} In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321, 129 S.Ct. 2527, 174

L.Ed.2d, 314 (2009) the United States Supreme Court addressed whether “certificates of state

laboratory analysts stating that material seized by police and connected to petitioner was cocaine

of a certain quantity” violated the petitioner’s Sixth Amendment right to confront the witnesses

against him. Id. at paragraph one of the syllabus. In ruling that the admission of those certificates

without the testimony of their authors violated the Confrontation Clause, the Court stated:

       Here, moreover, not only were the affidavits “ ‘made under circumstances which

       would lead an objective witness reasonably to believe that the statement would be
Scioto App. No. 15CA3686                                                                        41


       available for use at a later trial,’ ” Crawford, supra, at 52, 124 S.Ct. 1354, but

       under Massachusetts law the sole purpose of the affidavits was to provide “prima

       facie evidence of the composition, quality, and the net weight” of the analyzed

       substance, Mass. Gen. Laws, ch. 111, § 13. We can safely assume that the

       analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as

       stated in the relevant state-law provision—was reprinted on the affidavits

       themselves.

Id. at 311 (Emphasis Added).

       {¶ 91} In Bullcoming, the United States Supreme Court held “that another scientific

report could not be used as substantive evidence against the defendant unless the analyst who

prepared and certified the report was subject to confrontation.” Williams at 2233. The Court

stated: “A document created solely for an ‘evidentiary purpose,’ Melendez–Diaz clarified, made

in aid of a police investigation, ranks as testimonial.” Bullcoming at 664.

        {¶ 92} In Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, the appellant

challenged the admission of an autopsy report citing the Melendez-Diaz decision. In

distinguishing the facts in Maxwell from Melendez-Diaz and Bullcoming, the Ohio Supreme

Court stated the following:

       The dissent [in Maxwell] rejects the primary-purpose test and would hold that

       whether a particular autopsy report is testimonial should be determined on a case-

       by-case basis. But generally, autopsy reports are neither (1) prepared for the

       primary purpose of accusing a targeted individual nor (2) prepared for the primary

       purpose of providing evidence in a criminal trial. For Sixth Amendment purposes,
Scioto App. No. 15CA3686                                                                          42


       it is only the primary purpose of a document that determines whether it is

       testimonial or not.

       In both cases, the forensic reports were made at the request of police, for specific

       “evidentiary purposes” in order to aid in a police investigation. The record does

       not show that to be the case here. We hold that an autopsy report that is neither

       prepared for the primary purpose of accusing a targeted individual nor prepared

       for the primary purpose of providing evidence in a criminal trial is

       nontestimonial, and its admission into evidence at trial under Evid.R. 803(6) as a

       business record does not violate a defendant’s Sixth Amendment confrontation

       rights.

Id. at ¶¶ 62-63.

       {¶ 93} In State v. Hall, 8th Dist. Cuyahoga No. 96680, 2012-Ohio-266, the Eighth

District Court of Appeals found that the admission of police reports violated the Confrontation

Clause. Specifically, the court stated:

       Here, two police reports were admitted into evidence over defense counsel's

       objection. Both reports contain testimonial statements “that would lead an

       objective witness to believe the statement would be available for use at a later

       trial.” Crawford at 51-52. The reports contain statements of investigating officers

       who were not responding to an emergency and who did not testify at trial.

       According to one report, Officers Daniel Baillis, Bryan Curry, and Gerald

       Bronson investigated the crime in addition to Artara Adams. The second report

       identifies additional officers Mark Bickerstaff, Johnny Harris, and Michelle Wolf

       as investigating officers. One report identifies Officer Daniel Baillis as the
Scioto App. No. 15CA3686                                                                          43


        reporting officer, while the second report identifies Officer Johnny Harris as the

        reporting officer. Yet none of these officers testified at trial except Det. Adams.

        The police reports further indicate that the police were investigating Hall for

        crimes of menacing and intimidation of a crime victim or witness. Such

        statements are unfairly prejudicial since he was not on trial for theses offenses.

Id. at ¶ 22.

        {¶ 94} Here, it is without question that both the criminal predicate statement on the 22nd

Street Bloods and the gang book on Smith contain investigative reports composed by officers

who did not testify at Smith’s trial. Based on Vass’s testimony and the fact that her name appears

at the bottom of nearly every page, Detective Sarah Cross was responsible for compiling the two

exhibits. While the criminal predicate statement contains just summaries of other officers’

investigative reports, the gang book includes both the summaries and the actual reports

themselves. Neither Cross nor the other police officers, whose reports were included in the

exhibits, testified at trial.

        {¶ 95} In order for the admission of these exhibits to result in a violation of Smith’s Sixth

Amendment right to confrontation, the content must be testimonial. Without parsing out each

and every statement included in the criminal predicate statement and gang book, we find that the

criminal predicate statement and the gang book both contain testimonial statements. Whether it is

the summaries of police investigations or the actual investigative reports themselves, we find the

statements contained within to be testimonial.

        {¶ 96} We base our conclusion on the following reasons. First, at least some of the police

investigations either included or summarized in the gang book had a primary purpose of

establishing or proving past events potentially relevant to later prosecution. See Davis, 547 U.S.
Scioto App. No. 15CA3686                                                                              44


at 822, 126 S.Ct. 2266; Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930 at ¶ 63;

Hall at ¶ 22. Some of the investigative reports included in the gang book identify the “Criminal

Activity” as “Participating in a Criminal Gang.” The first page of the gang book states that the

criminal activity associated with Smith includes: “Engaging in Corrupt Activity, Drug

Trafficking (MDO), Possession of Drugs and Participating in a Criminal Gang.” Those are the

offenses for which Smith was indicted here in this case. Further, Vass testified that the gang

book is the CPD’s actual case file on Smith and was prepared “for court when an individual is

going to trial.” Even in its appellate brief the State argues that the criminal predicate statement

and the gang book “* * * are admissible as the opinions of an expert and how he arrived at those

opinions as well as proving the elements of participation in a criminal gang.” (Emphasis Added.)

Accordingly, we find that, the criminal predicate statement, State’s Exhibit 4, and the gang book,

State’s Exhibit 5, contain testimonial statements from individuals who did not testify at trial.

       {¶ 97} The State cites multiple cases in its appellate brief following its argument that the

contents of the criminal predicate statement and the gang book are admissible. See State v. King,

8th Dist. Cuyahoga No. 98234, 2013-Ohio-574; State v. McCraney, 9th Dist. Summit Nos.

24750 & 2528, 2010-Ohio-6128; State v. Stewart, 3d Dist. Seneca No. 13-08-18, 2009-Ohio-

3411; State v. Gaiter, 9th Dist. Summit No. 24758, 2010-Ohio-2205, ¶ 61. However, only one of

those decisions, Stewart, addresses a Confrontation Clause issue. In Stewart, appellant argued

that the trial court violated the Confrontation Clause when it admitted video and audio recordings

of persons who did not testify at trial. Id. at ¶ 78. What is common in all of those decisions is that

they involve a defendant who was charged with participating in a criminal gang. Also, in those

cases, the State offered testimony from police officers, often designated as expert witnesses,

regarding gang activity.
Scioto App. No. 15CA3686                                                                            45


         {¶ 98} However, the issue raised by Smith here does not concern the State’s strategy in

providing gang expert testimony. Ohio courts have found expert testimony on gang related

activities can be relevant to the issues presented in a case. See State v. Drummond, 111 Ohio

St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 112; State v. Peterson, 10th Dist. Franklin No.

07AP-303, 2008-Ohio-2838 ¶¶ 37-38. “Gang evidence also may be relevant when it is necessary

to ‘provide[ ] the jury with crucial background information in considering the evidence.’ ” State

v. Humberto, 196 Ohio App.3d 230, 2011-Ohio-3080, 963 N.E.2d 162 (10th Dist.).

         {¶ 99} The main issue is the fact that vast amounts of police reports were admitted into

evidence through the contents of the criminal predicate statement and the gang book. The cases

cited by the State do not support an argument that the exhibits were permissible under the

Confrontation Clause. We further note that Evid.R. 803(8)(b) provides that in criminal cases,

police matters observed by police officers and other law enforcement personnel are inadmissible.

Hall, 2012-Ohio-266 at ¶ 12.

         {¶ 100} Accordingly, for the above stated reasons, we find that the admission of the

testimonial police reports contained in the criminal predicate statement and the gang book

violated Smith’s Sixth Amendment right to confront the witnesses against him.

         {¶ 101} Nevertheless, because we are conducting a plain error review, we must next

determine whether the admission of the testimonial statements clearly affected the outcome of

the trial.

         {¶ 102} Most of the criminal investigative material documented in the criminal predicate

statement and the gang book occurred before the alleged time period that Smith committed the

indicted offenses. The indictment alleged that Smith’s criminal conduct occurred between

January 1, 2011 and July 13, 2014. Smith was released from incarceration in November 2013.
Scioto App. No. 15CA3686                                                                              46


From the time after his release, the gang book only contained reports from May 18, 2014, when

Smith was stopped by a police officer and cited with failure to reinstate his operator’s license and

from June 9, 2014, when Portsmouth Police stopped Smith and the other co-defendants in

connection with the charges here. Therefore, the gang book did not contain significant

information implicating Smith in the indicted offenses. Further, Smith admitted during his

testimony that he was an active gang member before he was incarcerated in 2009.

       {¶ 103} The most damaging evidence against Smith came from testimony of the seven

witnesses that observed Smith’s involvement with the drug trafficking operation. Together with

Justice’s testimony, evidence was established that Smith was involved with the operation

involving the 5574 phone number and other identified 22nd Street Bloods members. It is true

that Smith denied most of the damaging testimony. In the absence of the documentation

contained in the criminal predicate statement and the gang book, the jury would have been left

with the testimony of the investigating officers and the seven witnesses that testified regarding

Smith’s involvement with the drug trafficking operation. The weight to be afforded evidence and

the credibility of testimony are issues to be determined by the trier of fact. State v. Frazier, 73

Ohio St.3d 323, 339, 652 N.E.2d 1000 (1995), citing Grant, 67 Ohio St.3d at 477, 620 N.E.2d

50. Therefore we are reluctant to reverse the jury’s determination of guilt under those

circumstances.

       {¶ 104} For those reasons, we do not find that the outcome of the trial clearly would have

been different absent of the testimonial statements present in the criminal predicate statement on

the 22nd Street Bloods and the gang book on Smith. Smith’s third assignment of error is

overruled.
Scioto App. No. 15CA3686                                                                              47


D. Assignment of Error IV − Smith Was Not Denied His Right to a Fair Trial Through the

                                    Cumulative Error Doctrine.

        {¶ 105} In his fourth assignment of error, Smith argues that his convictions should be

reversed on the basis of cumulative error. Smith contends that the scope of this case carried a risk

of confusion with the issues and the evidence introduced at trial. Smith asserts that the State’s

strongest evidence against him came from witnesses who had received something in exchange

for their testimony. Smith argues that the jury’s decision about who to believe was affected by

the admission of his past criminal conduct documented in the gang book and the criminal

predicate statement. Thus, Smith concludes that he was denied his right to a fair trial and due

process of law.

        {¶ 106} Under the doctrine of cumulative error, “a conviction will be reversed where the

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

even though each of [the] numerous instances of trial court error does not individually constitute

cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). “Before we

consider whether ‘cumulative errors’ are present, we must first find that the trial court committed

multiple errors.” State v. Harrington, 4th Dist. No. 05CA3038, 2006-Ohio-4388, ¶ 57, citing

Goff, 82 Ohio St.3d at 140, 694 N.E.2d 916.

        {¶ 107} In our analysis of Smith’s first three assignments of error, we found only one

error, the admission of the testimonial statements in the criminal predicate statement and the

gang book. While we did find that a portion of the prosecutor’s conduct was improper, it did not

rise to the level of prosecutorial misconduct that violated Smith’s right to a fair trial. Considering

our prior analysis, and the entirety of the proceedings below, we do not find that Smith’s
Scioto App. No. 15CA3686                                                                             48


convictions should be reversed because of cumulative error. Smith’s fourth assignment of error is

overruled.

     E. Assignment of Error V − The Trial Court Should Have Merged Two of Smith’s

                        Convictions as Allied Offenses of Similar Import.

        {¶ 108} In his fifth assignment of error, Smith argues that the trial court erred when it did

not merge his conviction for engaging in a pattern of corrupt activity with his conviction for

participating in a criminal gang. With regards to the similar import nature of those convictions,

Smith argues that the harm resulting from each offense was the same, to wit: drug trafficking.

Smith contends that the harm is not distinct or separate. Further, Smith argues that the conduct

making up both convictions was the same. Finally, Smith contends that the convictions resulted

from the same motivations. Accordingly, Smith concludes that the trial court should have

merged the offenses, as they are allied offenses of similar import.

        {¶ 109} Initially, we note that Smith failed to argue that his two convictions should

merge. Smith’s trial counsel did state a general objection to the trial court’s sentence at the

sentencing hearing; but at no time did counsel assert that the convictions were allied offenses.

Therefore, Smith has waived all but plain error. Recently, the Ohio Supreme Court clarified that

the failure to raise the issue of merging allied offenses of similar import in the trial court results

in forfeiture of the issue, as opposed to waiver of the issue. State v. Rogers, 143 Ohio St.3d 385,

393, 2015-Ohio-2459, 38 N.E.3d 860, 867, ¶ 21. Accordingly, we will review Smith’s argument

for plain error. In the past, this Court recognized, that the trial court plainly errs when it imposes

multiple sentences for allied offenses of similar import. State v. Wilson, 4th Dist. Scioto No.

13CA3542, 2015-Ohio-2016, ¶ 63.
Scioto App. No. 15CA3686                                                                           49


       {¶ 110} “An appellate court should apply a de novo standard of review in reviewing a

trial court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d 482, 2012-

Ohio-5699, 983 N.E.2d 1245, ¶ 28. “ ‘[T]he appellate court must * * * independently determine,

without deference to the conclusion of the trial court, whether the facts satisfy the applicable

legal standard.’ ” Id. at ¶ 26, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8. The reviewing court owes no deference to the trial court’s application of the

law to the particular facts of the case being reviewed. Id.

       {¶ 111} R.C. 2941.25, Ohio’s multiple counts statute, provides:

       (A) Where the same conduct by defendant can be construed to constitute two or

       more allied offenses of similar import, the indictment or information may contain

       counts for all such offenses, but the defendant may be convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar

       import, or where his conduct results in two or more offenses of the same or

       similar kind committed separately or with a separate animus as to each, the

       indictment or information may contain counts for all such offenses, and the

       defendant may be convicted of all of them.

       {¶ 112} The statute codifies the protections of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution, and Section 10, Article I of the Ohio Constitution,

which prohibits the imposition of multiple punishments for the same offense. State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. In other words, upon

finding one or more counts to constitute two or more allied offenses of similar import, R.C.

2941.25(A) requires that the convictions be merged for the purposes of sentencing and that the
Scioto App. No. 15CA3686                                                                           50


defendant only be sentenced on one of the counts. State v. Whitfield, 124 Ohio St.3d 319, 2010-

Ohio-2, 922 N.E.2d 182, ¶ 5.

       {¶ 113} The Ohio Supreme Court has interpreted R.C. 2941.25 to involve a two-step

analysis for determining whether offenses are subject to merger. State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Under step one, it must be determined whether “it

is possible to commit one offense and commit the other with the same conduct, not whether it is

possible to commit one without committing the other.” (Emphasis sic.) Id. at ¶ 48. Put another

way, if the conduct of the defendant constituting commission of offense one also constitutes

commission of offense two, then the offenses are of similar import and the court must proceed to

the second step. Id. Under step two of the analysis, it must be determined whether the offenses

were committed as part of a single act, with a single state of mind. Id. at ¶ 49. If both steps of the

analysis are met, then the offenses are allied offenses of similar import and will be merged. Id. at

¶ 50. On the other hand, if commission of one offense will never result in the commission of the

other, or if the offenses are committed separately, or with a separate animus for each offense,

then under R.C. 2941.25(B), the offenses will not merge. Id. at ¶ 51.

       {¶ 114} Recently, in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

the Ohio Supreme Court provided courts with further guidance with respect to the R.C. 2941.25

merger determination. Although the Supreme Court did not explicitly overrule Johnson, it stated

that the “decision in Johnson was incomplete” and that Johnson’s syllabus language “does not

offer the complete analysis necessary to determine whether offenses are subject to merger rather

than multiple convictions and cumulative punishment.” Id. at ¶ 16.

       {¶ 115} The Ohio Supreme Court in Ruff lists three questions for a reviewing court to ask

when a defendant’s conduct supports multiple offenses in order to determine whether those
Scioto App. No. 15CA3686                                                                             51


offenses are allied offenses of similar import within the meaning of R.C. 2941.25: (1) Were the

offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation? If one of the questions is answered

affirmatively, then separate convictions are permitted. The conduct, the animus, and the import

must all be considered.

        {¶ 116} With respect to the first question, as explained in Ruff, offenses are of dissimilar

import “when the defendant’s conduct constitutes offenses involving separate victims or if the

harm that results from each offense is separate and identifiable.” Id. at paragraph two of the

syllabus. When applying the Ruff test, we look at the conduct of the defendant in the context of

the statutory elements. See State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶

82. The relevant statute for engaging in a pattern of corrupt activity, R.C. 2923.32(A)(1) states:

“No person employed by, or associated with, any enterprise shall conduct or participate in,

directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the

collection of an unlawful debt.” Likewise, the relevant participating in a criminal gang statute,

R.C. 2923.42 provides that:

        No person who actively participates in a criminal gang, with knowledge that the

        criminal gang engages in or has engaged in a pattern of criminal gang activity,

        shall purposely promote, further, or assist any criminal conduct, as defined in

        division (C) of section 2923.41 of the Revised Code, or shall purposely commit or

        engage in any act that constitutes criminal conduct, as defined in division (C) of

        section 2923.41 of the Revised Code.

        {¶ 117} Here, the State argues that the offenses were committed separately over a long

period of time and were committed against multiple victims. The State further asserts that “[t]he
Scioto App. No. 15CA3686                                                                              52


victims of theses offenses and those in the predicate offenses are different. These are separate

human beings and regardless of their addiction or their ways of generating income, they are

entitled to the protection of the law, the same protection [Smith] claims for himself.” However,

as this Court has previously stated, “ * * *we are examining whether there are separate or

different victims of [the offenses in question].” State v. Gillman, 2015-Ohio-4421, 46 N.E.3d

130 ¶ 22 (4th Dist.) (rejecting the State’s argument that offense should not merge because “there

was [sic] multiple victims in these instances.”).

       {¶ 118} Here, we cannot discern separate victims for Smith’s conduct in engaging in a

pattern of corrupt activity and participating in a criminal gang. Looking at the indictment, the

alleged time period when the offenses were committed are the same, to wit: from January 1,

2011 to July 13, 2014. Furthermore the State relied on the exact same predicate events to support

both the charge of engaging in a pattern of corrupt activity and participating in a criminal gang.

Likewise, we also cannot discern that the harm resulting from each offense is separate and

identifiable. The Ohio Supreme Court has held that “[o]ffenses under R.C. 2923.32 are mala

prohibita, i.e., the acts are made unlawful for the good of the public welfare regardless of the

state of mind.” State v. Schlosser, 79 Ohio St.3d 329, 333, 681 N.E.2d 911 (1997). Further,

“[w]hether a defendant knowingly, recklessly or otherwise engages in a pattern of corrupt

activity, the effect of his activities on the local and national economy is the same.” Id., quoting

State v. Haddix, 93 Ohio App.3d 470, 638 N.E.2d 1096 (1994). It is reasonable to conclude that

the harm that stems from the offense of participating in a criminal gang is similar to the harm

produced by the offense of engaging in a pattern of corrupt activity. There is no evidence in the

record that demonstrates that one charge produced separate harm from the other. Accordingly,
Scioto App. No. 15CA3686                                                                            53


the answer to whether Smith’s conduct constituted offenses involving separate victims or

separate harm is “no.” We must proceed with our inquiry.

       {¶ 119} We will continue our analysis with the second question presented by Ruff: “Were

[the offenses] committed separately?” Ruff at ¶ 31. As we have already stated, the indictment

alleges that the charge of engaging in a pattern of corrupt activity and the charge of participating

in a gang took place during the same time period, from January 1, 2011 to July 13, 2014. After a

review of the record, we cannot discern any evidence of Smith’s conduct demonstrating that the

offenses were committed separately. Smith’s incriminating conduct was his active role in a drug

operation. Examining the statutes again, the “pattern of corrupt activity” stated in R.C.

2923.32(A)(1) is defined as: “two or more incidents of corrupt activity, whether or not there has

been a prior conviction, that are related to the affairs of the same enterprise, are not isolated, and

are not so closely related to each other and connected in time and place that they constitute a

single event.” R.C. 2923.31(E). The “pattern of criminal activity” as stated in R.C. 2923.42(A) is

defined as:

       subject to division (B)(2) of this section, that persons in the criminal gang have

       committed, attempted to commit, conspired to commit, been complicitors in the

       commission of, or solicited, coerced, or intimidated another to commit, attempt to

       commit, conspire to commit, or be in complicity in the commission of two or

       more of any of the following offenses:

       (a) A felony or an act committed by a juvenile that would be a felony if

       committed by an adult;

       (b) An offense of violence or an act committed by a juvenile that would be an

       offense of violence if committed by an adult;
Scioto App. No. 15CA3686                                                                           54


       (c) A violation of section 2907.04, 2909.06, 2911.211, 2917.04, 2919.23, or

       2919.24 of the Revised Code, section 2921.04 or 2923.16 of the Revised Code,

       section 2925.03 of the Revised Code if the offense is trafficking in marihuana, or

       section 2927.12 of the Revised Code.

R.C. 2923.41(B)(1).

       {¶ 120} The evidence of the drug operation, specifically the predicate offenses combined

with the direct or indirect involvement in the overall illegal entity served to show that Smith was

both engaging in a pattern of corrupt activity and a pattern of criminal activity. Again, the

evidence in the record does not demonstrate that Smith’s conduct served to commit one of the

offenses separate from the other. Accordingly, the answer to whether Smith’s committed the

offenses separately is “no.” We must proceed with our inquiry.

       {¶ 121} The final question presented by Ruff is “Were they committed with separate

animus or motivation?” Smith argues that there is no evidence to support the existence of

different motivations for the two offenses. Vass did testify that, in general, gangs use the profits

from illegal activity to buy the latest clothing, shoes, cell phones and other material possessions.

We are unable to distinguish another motivation behind Smith’s conduct. Therefore, Smith’s

motivation for committing the offense of engaging in a pattern of corrupt activity and

participating in a criminal gang is the same. Accordingly, the answer to whether Smith’s

convictions were committed with a separate animus or motivation is “no.”

       {¶ 122} Because we answered “no” to all the questions presented by Ruff, we find that

the trial court should have merged Smith’s convictions for engaging in a pattern of corrupt

activity and participating in a criminal gang as allied offenses of similar import. Accordingly, we
Scioto App. No. 15CA3686                                                                         55


sustain Smith’s fifth assignment of error. We remand this cause to the trial court for proceedings

consistent with this decision.

                                         IV. Conclusion

       {¶ 123} We have overruled Smith’s first, second, third, and fourth assignments of error.

As a result, Smith’s convictions are affirmed. However, we sustain Smith’s fifth assignment of

error because we find that his convictions for engaging in a pattern of corrupt activity and

participating in a criminal gang should merge as allied offenses of similar import. This cause is

remanded to the trial court for the limited purpose of conducting a new sentencing hearing

consistent with this opinion.

     JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
Scioto App. No. 15CA3686                                                                           56


Harsha, J., concurring in part and dissenting in part:

       {¶ 124} I concur with most of the court’s judgment and opinion. However, there are

several areas where I differ in my conclusions.

       {¶ 125} First, I conclude the State improperly vouched for witness Schuman’s credibility

when it referenced a prior opinion by a trial judge about her reliability. However, because that

reference was not outcome determinative, it did not amount to plain error.

       {¶ 126} On the other hand, I find nothing improper about the State’s “sack of bologna”

comment during cross-examination of the appellant.

       {¶ 127} Finally, I would exercise the discretion afforded us by Crim.R. 52(B) and decline

to apply plain error on the merger issue. See State v. Barnes, 98 Ohio St.3d 21, 27, 759 N.E.2d

1240 (2002); State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22; see

also, State v. Askew, 4th Dist. Ross No. 05CA2877, 2006-Ohio-4769, ¶ 23.

       {¶ 128} In all other regards, I concur in judgment and opinion.
Scioto App. No. 15CA3686                                                                              57


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART and
that the CAUSE BE REMANDED for further proceedings consistent with this opinion.
Appellant and appellee shall split the costs.

        The Court finds that reasonable grounds existed for this appeal.

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

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

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

Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Part and Dissents in Part with Opinion.

                                                For the Court


                                                BY: ____________________________
                                                    Marie Hoover, Judge




                                      NOTICE TO COUNSEL

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