[Cite as State v. Jones, 2018-Ohio-1130.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                              :      APPEAL NO. C-160826
                                                   TRIAL NO. B-1405713
        Plaintiff-Appellee,                 :
                                                       O P I N I O N.
  vs.                                       :

AARON JONES,                                :

     Defendant-Appellant.                   :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 28, 2018




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
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M OCK , Presiding Judge.

       {¶1}    An armed individual robbed a Sunoco store at the corner of Salem

Road and Sutton Avenue in Anderson Township. He took money from the cash

register and a carton of cigarettes. The gunman fled from the store, running north

up Sutton Avenue. The employee, Dilbag Dilbag, testified that the gunman was five

feet five inches tall, but also testified that he had stood on a platform behind the

counter, so he did not know exactly how tall the gunman was. A deputy later

measured the platform and determined that it was six inches high.            Dilbag’s

testimony, and security footage from the store, demonstrated that the gunman had

been wearing a white and blue hoodie, dark pants, and something red covering his

face. A police dog that was brought to the scene was able to pick up the trail of the

gunman, which stopped at a fence behind a nearby apartment complex.

       {¶2}    After conducting the initial investigation, detectives created a wanted

flyer using an image captured from the security camera. They subsequently received

a Crime Stoppers tip that led them to a Subway restaurant in Mt. Washington. When

the detectives arrived, they were greeted by Jennifer Hensley, the manager, who told

them that she was the one who had called. She indicated that a man fitting the

description had been in her store earlier on the day of the robbery. Surveillance

video from the Subway revealed an individual wearing the same clothing as the

gunman. The individual was seen passing the store several times, then talking to an

employee. After talking to the employee, detectives were directed to the apartment

of Derek Lastoria.

       {¶3}    Derek Lastoria lived in an apartment complex a short distance from

the location where the dog had lost the gunman’s scent on Sutton Avenue. On the

night of the robbery, he had seen Jones sitting on the front steps of his apartment



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building with Lastoria’s sister, Brittany Lovell. Lovell and Jones were arguing, with

Jones accusing Lovell of taking a “fist full of 20s” from a grocery bag. Jones had told

Lastoria that he had “hit a lick,” admitting that he had just robbed the Sunoco. Jones

also told Lastoria that he had gotten money and cigarettes, and showed him the gun

he had used.

       {¶4}    The next day, Lovell called the police. When detectives arrived, she

showed them the cigarettes and empty carton that Jones had taken from the store.

They also found a sweatshirt behind the apartment building that matched the one

worn by the gunman.

       {¶5}    Jones turned himself in to detectives three days after the robbery.

Detectives showed him a picture captured from the Subway video, and Jones

admitted that he was the one in the picture. He was arrested and subsequently

indicted on one count of aggravated robbery with specifications, one count of

robbery with specifications, and one count of having a weapon while under a

disability. After his original jury trial resulted in a hung jury, Jones was found guilty

of all three counts at the conclusion of a second trial. The trial court merged the

robbery count with the aggravated-robbery count, and sentenced him accordingly.

In six assignments of error, Jones now appeals.

                             Unavailability of Witnesses

       {¶6}    Two witnesses who testified at Jones’s first trial did not testify at his

second. The first witness was Dilbag, who had moved to New York. The second

witness was Lovell, whom detectives were unable to find. The trial court found that

both witnesses were unavailable, despite reasonable efforts having been made to

secure their appearances. As a result, the trial court allowed the testimony of Dilbag

and Lovell from the first trial to be read to the jury in the second trial. In his first


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assignment of error, Jones argues that the trial court abused its discretion by finding

that the witnesses were unavailable.

       {¶7}    With regard to Dilbag, Jones argues that the state did not show that it

had used reasonable efforts because it failed to issue an out-of-state subpoena

pursuant to R.C. 2939.26. This argument was not raised below. Since Jones failed to

raise this argument below, he has waived all but plain error. See State v. Mitchell, 2d

Dist. Montgomery No. 24797, 2012-Ohio-3722, ¶ 10.            To establish plain error

pursuant to Crim.R. 52(B), Jones must show “(1) that an error occurred, (2) that the

error was obvious, and (3) that the error affected the outcome of the trial.” State v.

Bandy, 1st Dist. Hamilton No. C-160402, 2017-Ohio-5593, ¶ 70. “Notice of plain

error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,

53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶8}    A trial court may find a witness unavailable without the state having

first gone through the extensive procedure outlined in R.C. 2939.26 when the

witness had appeared to be otherwise willing to cooperate.            “The Act is not

something which must be used in every situation; it is a remedy which may be used

when the situation calls for it. When a witness appears very willing to cooperate, it is

not reasonable to expect the prosecution to expend the time and energy to set the

wheels of the Act in motion.” State v. Young, 20 Ohio App.3d 269, 272, 485 N.E.2d

814 (8th Dist.1984); see State v. Tolbert, 1st Dist. Hamilton No. C-980622, 1999 WL

283891 (May 7, 1999).

       {¶9}    There was nothing in Dilbag’s interaction with law enforcement up

until the eve of trial that would have put the state on notice that use of the statute’s

procedure would have been required.        Detective Shawn Cox from the Hamilton



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County Sheriff’s Office testified that he had told Dilbag that he would need to testify

at the second trial, and Dilbag indicated that he would do so if he could. He had told

the detective that he would need to be compensated for the lost time at work,

information Cox said he passed on to the prosecutor. Cox said that he was not able

to serve a subpoena on Dilbag because his department could not pay to send him to

New York City. While Cox had been in relatively consistent contact with Dilbag since

the first trial, the communications dropped off about one week before the second

trial was to begin. Calls to Dilbag the week before the trial went straight to voicemail.

Cox said that, at that point, Dilbag was “refusing to, in my opinion, come back and

refusing to even take my calls at this point.”

        {¶10} In light of the fact that Cox did not have reason to suspect that Dilbag

would not be cooperative until days before the trial started, the state need not have

resorted to the procedures outlined in R.C. 2939.26 to satisfy the requirement that it

had used reasonable efforts to secure Dilbag’s appearance. Therefore, it was not

plain error for the trial court not to have sua sponte considered the state’s failure to

utilize the procedure.

       {¶11}   On the issue of Lovell’s unavailability, Jones argues that the state’s

failure to issue a subpoena to her mother’s house was the reason that the state’s

efforts were not reasonable. But there is no indication that this would have been

effective. Cox testified that Lovell had been evicted from her apartment and was

believed to be homeless. Cox had attempted to contact Lovell through social media

and three different cell phone numbers without success. Cox stayed in contact with

Lovell’s mother, who did not know where she was and was unable to contact her.

Lovell’s mother had hoped to find her by attending a court hearing that Lovell had

scheduled in an unrelated matter, but Lovell did not appear at that hearing. There is



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no indication in the record that issuing a subpoena to Lovell at her mother’s address

would have been effective in securing her appearance. The trial court did not abuse

its discretion when it found her to be unavailable and allowed the state to read her

prior testimony to the jury. We overrule Jones’s first assignment of error.

                              Prosecutorial Misconduct

       {¶12}   In the second assignment of error, Jones claims that an analogy to

solving a puzzle the state used when trying to explain reasonable doubt to the jury

during voir dire amounted to prosecutorial misconduct.          The test for whether

prosecutorial misconduct mandates reversal is whether the remarks were improper

and, if so, whether they prejudicially affected the substantial rights of the accused.

State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). Since counsel did not

object to the state’s use of the analogy, Jones is precluded from predicating error on

it unless the trial court’s failure to intercede amounted to plain error. See State v.

Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990); Crim.R. 52. Prosecutorial

misconduct rises to the level of plain error only if it is clear the defendant would not

have been convicted in the absence of the improper comments. State v. Smith, 2017-

Ohio-8558, ___ N.E.3d ___, ¶ 49 (1st Dist.).

       {¶13}   Here, the prosecutor posed the example of having a 500-piece jigsaw

puzzle without knowing what it pictured before assembling it. The prosecutor asked

a prospective juror if the puzzle was an image of the Statue of Liberty, and the juror

had about 20 percent of the puzzle complete, would the prospective juror know that

it was the Statue of Liberty. The prospective juror replied in the affirmative. The

prosecutor then continued by then talking about a puzzle that depicted the

prosecutor, noting that the juror did not know her and that “[y]ou’d probably need

90% of it.” The prosecutor said that “that example is what I like to use for reasonable


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doubt, because there is no percentage that we can put on reasonable doubt. I wish I

could but we can’t. Sometimes you need 20% or 40%, sometimes you need 90% of it,

and it’s okay.” The prosecutor concluded by noting that “it’s not absolute certainty,”

telling the prospective juror that “[t]he judge will instruct you that it’s not absolute

certainty,” and asking the prospective juror not to hold her to the standard of

absolute certainty.

       {¶14}   Generally, “attempts to ‘clarify’ the term by example, analogy,

metaphor, or simile are ill-advised.” State v. Turic, 2d Dist. Greene No. 2010 CA 35,

2011-Ohio-3869, ¶ 13. But as the Ohio Supreme Court stated when confronted with a

different analogy, “While the prosecutor's comments were perhaps inappropriate, we

do not find that the comments denigrated the reasonable doubt standard. Moreover,

the trial court's ‘reasonable-doubt instructions negated any misconception by the

jury.’ ” State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 78,

quoting State v. Lundgren, 73 Ohio St.3d 474, 484, 653 N.E.2d 304 (1995). Even the

Turic court, which cautioned against the use of analogies to further explain

reasonable doubt, found that the defendant had shown no prejudice because “the

trial court instructed the jury that the court would set forth the law to be applied to

the case, and it correctly defined reasonable doubt shortly after voir dire and in the

concluding jury instructions.” Turic at ¶ 14.

       {¶15}   In this case, the jury was given the proper definition of reasonable

doubt in the jury instructions. In light of this proper instruction, the state’s use of

analogy—while ill-advised—did not denigrate the reasonable-doubt standard. And

the comments did not rise to the level where it is clear that Jones would not have

been convicted in their absence. The trial court’s failure to admonish the state or




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strike the reference to the puzzle analogy sua sponte did not amount to plain error.

We overrule Jones’s second assignment of error.

                               Ineffective Assistance

       {¶16}   In his third assignment of error, Jones argues that his trial counsel

was ineffective. To prevail on an ineffective-assistance-of-counsel claim, Jones must

show trial counsel's performance fell below an objective standard of reasonableness

and he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687–

688, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to demonstrate prejudice,

Jones must establish that, but for counsel's errors, there is a reasonable probability

that the result of trial would have been different. State v. Burke, 97 Ohio St.3d 55,

2002-Ohio-5310, 776 N.E.2d 79, ¶ 6. The failure to make an adequate showing on

either prong is fatal to an ineffective-assistance-of-counsel claim. See Strickland at

697.

       {¶17}   Jones first argues that counsel was ineffective for failing to offer to

stipulate to his prior conviction for aggravated robbery that constituted an element

of the weapons-under-disability count of the indictment. For that proposition, he

relies heavily on State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8840, 84 N.E.3d

981. In that case, the court followed the United States Supreme Court’s decision in

Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), and

held that the trial court abused its discretion by not allowing the defendant to

stipulate to the fact of a prior conviction when that prior conviction constituted an

element of a weapons-under-disability charge.

       {¶18}   Two weeks before Creech was released, however, the Ohio Supreme

Court addressed the issue of whether counsel can be ineffective for failing to offer to

stipulate to a prior conviction in State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-


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8126, 89 N.E.3d 554. The Spaulding court held that the failure to offer to stipulate

to the prior conviction did not constitute actionable ineffective assistance because

the defendant had failed to establish a “reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.” Id. at

¶ 153, quoting Strickland at 694.

       {¶19}   The record before us is replete with evidence that Jones committed

the crime. Had counsel stipulated to Jones’s prior conviction, the outcome would

not have been different. Pursuant to Spaulding, even if the failure to stipulate fell

below the minimum level of representation to which Jones was entitled, we will not

reverse his conviction on that basis because he has not shown that he was prejudiced.

       {¶20}   Jones also claims that counsel was ineffective for failing to object to

the puzzle analogy used by the state during voir dire. But, as we have previously

determined, the state’s use of the analogy neither denigrated the reasonable-doubt

standard nor changed the outcome of the trial. We overrule Jones’s third assignment

of error.

                          Hearsay Evidence: State v. Ricks

       {¶21}   In his fourth assignment of error, Jones claims that detectives

repeatedly testified improperly about what they were told during the course of their

investigation in violation of State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995

N.E.2d 1181. But Ricks doesn’t apply here.

       {¶22}   Ricks was a case involving the admission of statements made to law

enforcement officers that were repeated by officers during their testimony. The

argument for allowing the statements made to the officers had been that they were

not being offered for the truth of the matters asserted, but rather for the purpose of

explaining why the investigation proceeded in the manner that it did. Id. at ¶ 20.


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Therefore, the statements were not hearsay. Id., citing State v. Thomas, 61 Ohio

St.2d 223, 232, 400 N.E.2d 401 (1980). The court in Ricks set forth a test to guard

“against allowing prosecuting attorneys [using] police-officer testimony to introduce

unfairly prejudicial out-of-court statements, including testimony that connects the

defendant to the crime at issue.” Ricks at ¶ 24, citing State v. Humphrey, 10th Dist.

Franklin No. 07AP–837, 2008-Ohio-6302, ¶ 11.

       {¶23}      But in this case, none of the instances cited by Jones involve the

officer testifying to the out-of-court statements of another.        In each case, the

detective only testified to where received information had led him. In one cited

instance, the following exchange took place between the prosecutor and the

detective:

             Q.    And in this case, on October 6, 2014, did you receive in the

             course of your investigation a Crime Stoppers tip?

             A.   Yes.

             Q.   Where did the tip lead you?

             MS. UNDERWOOD: Objection pursuant to State v. Ricks.

             THE COURT: Overruled.

             Q.   Where did that tip lead you?

             A.   To the Subway store on Beechmont Avenue, Mt. Washington.

All of the instances cited by Jones contain the same type of exchange. In none of the

instances did the officer testifying actually say what the third party had told him.

Since none of the instances involve out-of-court statements, Ricks does not apply.

We overrule Jones’s fourth assignment of error.




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                          Sufficiency: Operable Weapon and
                            Ownership of Property Stolen

       {¶24}   In his fifth assignment of error, Jones claims that his convictions were

based upon insufficient evidence. In a challenge to the sufficiency of the evidence,

the question is whether, after reviewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found all the essential elements

of the crimes beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶25}   Jones first argues that he could not be convicted of aggravated

robbery or having a weapon while under a disability because the state failed to prove

that the weapon at issue was operable. Dilbag testified that “someone came suddenly

and pointed a gun at me. * * * He showed it to me, he like pointed a gun at me.” The

weapon was not discharged during the incident, and no weapon was recovered.

       {¶26}   The Ohio Supreme Court has addressed the level of proof required to

meet the burden of proof regarding the operability of a firearm.

       In determining whether an individual was in possession of a firearm

       and whether the firearm was operable or capable of being readily

       rendered operable at the time of the offense, the trier of fact may

       consider all relevant facts and circumstances surrounding the crime,

       which include any implicit threat made by the individual in control of

       the firearm.

State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). This court has

repeatedly held that the state can make that showing by circumstantial evidence. See

State v. Obsaint, 1st Dist. Hamilton No. C-060629, 2007-Ohio-2661, ¶ 18.

       {¶27}   In this case, Jones brandished the weapon while committing the

robbery of the Sunoco. He pointed the weapon at Dilbag, implicitly threatening to


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shoot him if he did not comply with his demands. This was sufficient circumstantial

evidence to allow the jury to conclude that the firearm was operable at the time of the

offense.

       {¶28}   Jones also claims that his conviction for aggravated robbery was

based on insufficient evidence because the indictment alleged that he stole money

from Dilbag and not from Sunoco. Since Jones stole no money from Dilbag, Jones

reasons, he could not be convicted of aggravated robbery.

       {¶29}   R.C. 2913.01(D) defines “owner” of property as “any person, other

than the actor, who is the owner of, who has possession or control of, or who has any

license or interest in property or services, even though the ownership, possession,

control, license, or interest is unlawful.” A store employee is the “owner” of the

store’s property for the purposes of the aggravated-robbery statute. See State v.

McCoy, 5th Dist. Licking No. 05-CA-29, 2006-Ohio-56, ¶ 105. For purposes of

Jones’s aggravated-robbery conviction, Dilbag was the owner of the money and

cigarettes taken. We overrule his fifth assignment of error.

                                   Manifest Weight

       {¶30}   In his final assignment of error, Jones claims that his convictions

were against the manifest weight of the evidence. When reviewing the manifest

weight of the evidence, this court must review the entire record, weigh the evidence,

and consider the credibility of the witnesses to determine whether the jury lost its

way and committed such a manifest miscarriage of justice in convicting Jones that

his conviction must be reversed. See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541.

       {¶31}   Jones first argues that he could not have been the person who

committed the robbery because the person who committed the offense was five feet


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four inches to five feet six inches tall and he is five feet 11 inches tall. But the

estimate given by Dilbag was based upon seeing him while standing on a platform

that was six inches high.     And while Jones has pointed to a screenshot of the

surveillance video which shows the perpetrator passing the measuring strip on the

door at near the five-and-a-half-feet marker, the image clearly shows an individual

who is hunched down. But viewing the perpetrator as he entered the store, at a time

when he was standing straighter, his head passes the strip approximately six inches

higher than when he leaves.

       {¶32}   Jones also again raises the issues that the state failed to prove that the

firearm was operable, and that he had stolen money from Dilbag rather than Sunoco.

But as we have previously held, the state presented sufficient circumstantial evidence

of the gun’s operability, and Dilbag was an “owner” of the currency stolen for

purposes of the aggravated-robbery conviction. On this record, the jury did not lose

its way or create a manifest miscarriage of justice.         We overrule Jones’s sixth

assignment of error.

                                      Conclusion

       {¶33}   Having considered and overruled all six of Jones’s assignments of

error, we affirm the judgment of the trial court.

                                                                     Judgment affirmed.

CUNNINGHAM and ZAYAS, JJ., concur.

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




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