[Cite as State v. Ruble, 2017-Ohio-7259.]


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

STATE OF OHIO,                                               :       Case No. 16CA20

        Plaintiff-Appellee,                                  :

        v.                                                   :       DECISION AND
                                                                     JUDGMENT ENTRY
MITCHELL R. RUBLE,1                                          :
                                                                     RELEASED: 08/09/2017
        Defendant-Appellant.                         :
                                             APPEARANCES:

Marc S. Triplett, Bellefontaine, Ohio, for appellant.

Michael DeWine, Ohio Attorney General, and Katherine Mullin and Jocelyn K. Lowe,
Ohio Assistant Attorneys General, Cleveland, Ohio, for appellee.
Harsha, J.
        {¶1}     After he was convicted of aggravated murder and sentenced to life in

prison, Mitchell R. Ruble filed this appeal.

        {¶2}     First Ruble asserts that the trial court abused its discretion by admitting

the detailed and graphic testimony of two state witnesses concerning his unwarranted

use of force as a deputy sheriff against an arrestee. Although this incident was

relevant to his motive for killing his supervisor, a sheriff’s lieutenant whose investigation

led to Ruble’s termination from the sheriff’s department, the trial court abused its

discretion in determining that unfair prejudice from this evidence did not substantially

outweigh its probative value. The state could have established Ruble’s motive for the

murder – to kill the man whose investigation led to his firing – without introducing

inflammatory details of the excessive use of force. Nevertheless, the trial court’s error in



1
 Ruble died during the pendency of this appeal and this Court substituted his daughter (Heather Wolfson) as the
appellant.
Washington App. No. 16CA20                                                     2


admitting this evidence was harmless beyond a reasonable doubt because of the

overwhelming remaining evidence of Ruble’s guilt, including Ruble’s own exhibit that

contained most of the same “other acts evidence” he objects to on appeal.

       {¶3}   Next Ruble contends that the trial court committed plain error when it

violated his constitutional rights to due process, confrontation, and compulsory process

by precluding him from calling witnesses who would have established that the key

prosecution witness had twice been arrested for impersonating a police officer. Ruble’s

contention is meritless because the trial court allowed Ruble to cross-examine the

witness about his purported arrests for impersonating a police officer. And the court

properly applied Evid.R. 608(B), the validity of which the Supreme Court of the United

States has implicitly approved in reviewing analogous state evidentiary rules.

       {¶4}   Ruble also argues that his trial counsel provided ineffective assistance by

failing to file a motion to suppress his post-indictment custodial statement to law

enforcement officers, failing to file a motion to redact parts of his statement, failing to

object to part of an officer’s testimony that was not based on his personal knowledge,

and failing to raise objections concerning matters raised in his other assignments of

error. We reject Ruble’s argument because he cannot establish that those motions had

merit or a reasonable probability of producing a different outcome, which would be

necessary to establish ineffective assistance of counsel.

       {¶5}   Ruble additionally claims that the trial court erred by instructing the jury on

aiding and abetting. We reject this assignment of error because a defendant who is

indicted for aggravated murder in the language of a principal offense is on notice that

evidence could be presented that he was either a principal offender or an aider or
Washington App. No. 16CA20                                                     3


abettor. Thus, the jury was free to credit evidence that supported the complicity

charge.

       {¶6}   Finally, Ruble asserts that his conviction should be reversed because of

the cumulative-error doctrine. This doctrine is inapplicable here in the absence of

multiple findings of otherwise harmless error.

       {¶7}   We overrule Ruble’s assignments of error and affirm his conviction and

sentence.

                                          I. FACTS

       {¶8}   In 1981, someone fatally shot Washington County Lieutenant Sheriff Ray

Clark through a kitchen window of Clark’s home. Over 33 years later, in September

2014, the grand jury charged Ruble with the aggravated murder. After he pled not

guilty, the case initially proceeded in 2015 to a trial that resulted in a hung jury. In 2016,

a second jury trial produced the following evidence.

       {¶9}   On the evening of February 7, 1981, an unknown assailant shot Lt. Ray

Clark of the Washington County Sheriff’s Office through a window in the kitchen of his

home. Clark was transported to a hospital, where he died from a gunshot to his head.

The investigating officers made a plaster cast of a shoe print, which resembled a

military-style boot, from the area outside Lt. Clark’s house. They also found a No. 4

buckshot shotgun shell casing at the murder scene. Multiple witnesses reported

observing a blue Ford Pinto station wagon suspiciously driving and parking in different

areas near the home at the time of the murder.

       {¶10} Ruble became a possible suspect shortly after the murder. He had a

motive to kill Lt. Clark, who led an investigation into Ruble’s excessive use of force
Washington App. No. 16CA20                                                      4


against an arrestee in 1981 when Ruble was a deputy sheriff. The investigation led to

Ruble’s suspension and eventual termination from the sheriff’s office. After a meeting

with Lt. Clark in 1981, Ruble left, telling another deputy sheriff that “the [SOB] fired me.”

Ruble told another deputy sheriff that he blamed Lt. Clark for his firing.

       {¶11} Within the next few weeks the sheriff’s department obtained statements

from Ruble, Deputy Sheriff Robert Smithberger, and Penny Howard. Ruble said that he

had left with Howard for Army Reserve drills in West Virginia the Saturday morning of

the murder, returned that evening because Howard was sick, and drove his blue Ford

Pinto to Smithberger’s apartment to spend the night before going back to West Virginia

the next morning for more drills. He admitted drinking wine on the drive back Saturday

night, drinking beer at Smithberger’s apartment later, and feeling the effects of the

alcohol. He denied any knowledge of Lt. Clark’s murder. In a second statement Ruble

admitted drinking a “great big bottle of wine” on the trip back home from West Virginia

on the day of the murder. He advised the sheriff’s department to talk to Howard and

Smithberger to verify his alibi.

       {¶12} Howard’s statement to the sheriff’s department mentioned that sometime

near the day of the murder, Ruble called Lt. Clark “two-faced” and a “back-stabber,” that

he would like to “blow him apart,” and that the sheriff’s office would be better off if Lt.

Clark were “six-feet under.” She confirmed that Ruble drank wine while driving her back

to Marietta that afternoon.

       {¶13} In statements to the sheriff’s department and to a 1999 grand jury,

Smithberger repeatedly verified Ruble’s alibi, i.e. on the night of Lt. Clark’s murder,
Washington App. No. 16CA20                                                   5


Ruble was with Smithberger drinking and sleeping before they had to return to West

Virginia for an Army Reserve drill early the next morning.

      {¶14} The initial investigation failed to result in any indictments. But in 2011, the

Washington County Sheriff’s Office opened a Cold Case Unit to focus on unsolved

homicides in Washington County; the unit decided to focus on Lt. Clark’s unsolved

murder. In September 2014, investigators visited Smithberger and questioned him

about his and Ruble’s involvement in Lt. Clark’s murder. Eventually, Smithberger

decided to cooperate after he received immunity and witness protection. Ruble’s

indictment soon followed.

      {¶15} Howard testified that Ruble hated Lt. Clark and that on the way back to

Marietta the day of the murder, Ruble went into a rant about Lt. Clark, declaring he’d

like to blow him in half, but doing that would make Clark look like a martyr. She

confirmed Ruble drank the bottle of wine while he was driving back from West Virginia.

And according to Howard, Smithberger looked up to Ruble, who dictated everything

Smithberger did.

      {¶16} Smithberger testified that on the evening of February 7, 1981, Ruble

showed up at his apartment, yelling “let’s go kill a certain lieutenant.” Ruble appeared

to be under the influence and asked Smithberger to drive Ruble’s blue Pinto station

wagon close to Lt. Clark’s home, where Ruble got out and told Smithberger to wait for

him nearby. Smithberger waited for a while, but eventually returned home and parked

Ruble’s car close by.

      {¶17} According to Smithberger, Ruble subsequently called him to get picked

up. Ruble told Smithberger he would kill him if Smithberger told anybody where he had
Washington App. No. 16CA20                                                    6


been that night. Ruble stuck a big hunting knife against Smithberger’s chest and

described how he would kill him if he told anybody. Smithberger testified that he had

lied to the police and the grand jury over the many years since Lt. Clark’s murder

because his life depended on it.

          {¶18} Other testimony established that Ruble wore military boots on the day of

the murder and that he had told another deputy sheriff that if you had to shoot a person,

you would want to use No. 4 buckshot. In addition, Detective Lieutenant Jeff Seevers of

the Washington County Sheriff’s Office testified that he overheard a conversation in

which Ruble told the sheriff that he used to drink wine, but that it made him do crazy

things.

          {¶19} The state also introduced Ruble’s custodial statement, which proclaimed

his innocence and lack of involvement in the murder. Ruble chose not to testify on his

own behalf.

          {¶20} After the jury returned a verdict finding Ruble guilty of aggravated murder,

the trial court sentenced him to life in prison.

                               II. ASSIGNMENTS OF ERROR

          {¶21} Ruble assigns the following errors for our review:

          I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED
          TESTIMONY THAT APPELLANT, WHILE A DEPUTY SHERIFF,
          PHYSICALLY AND MENTALLY ABUSED GARY BEAGLE.

          II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
          PRECLUDED APPELLANT FROM ADDUCING TESTIMONY THAT THE
          STATE’S KEY WITNESS COMMITTED TWO SEPARATE INCIDENTS IN
          WHICH HE HAD IMPERSONATED A PEACE OFFICER.

          III. THE UNREASONABLE ACTS AND OMISSIONS OF TRIAL
          COUNSEL PREJUDICED APPELLANT AND DENIED HIM THE
          EFFECTIVE ASSISTANCE OF COUNSEL.
Washington App. No. 16CA20                                                  7



      IV. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
      INSTRUCTED THE JURY ON AIDING AND ABETTING.

      V. THE CUMULATIVE EFFECT OF THE ERRORS IDENTIFIED IN THE
      FIRST THROUGH FOURTH ASSIGNMENTS WARRANTS THE
      GRANTING OF RELIEF.

                                III. LAW AND ANALYSIS

                               A. OTHER ACTS EVIDENCE

      {¶22} In his first assignment of error Ruble asserts that the trial court abused its

discretion when it admitted testimony that as a deputy sheriff, Ruble physically and

mentally abused Gary Beagle, who Ruble had arrested. At trial Ruble objected on the

basis of Evid.R. 404(B) and 403(A) to the state introducing detailed evidence from

former Washington County Deputy Sheriff John Dake who testified that: (1) he and

Deputy Ruble arrested Beagle and handcuffed him in the back of their cruiser; (2) Ruble

ordered Dake to stop the cruiser, entered the back seat, grabbed Beagle’s hair and hit

him in the head; (3) Ruble stated that he would continue hitting Beagle without leaving

any bruises; (4) Ruble threatened to take Beagle down to the river and throw him in; (5)

Ruble walked Beagle down to the river; and (6) when they returned to the vehicle

Beagle confessed.

      {¶23} Ruble also objected to Beagle’s testimony that during his arrest, Ruble

pulled back his head and hit him twice while he was handcuffed, walked him down to

the river, put a gun between his eyes, and threatened to shoot him.

      {¶24} Based on the state’s argument that Lt. Clark’s investigation of Ruble’s

unwarranted use of force led to Ruble’s termination from the sheriff’s department, thus
Washington App. No. 16CA20                                                       8


providing the motive for the murder, the trial court admitted this evidence over Ruble’s

objections.

       {¶25} In general “[e]vidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person to show action in conformity therewith.” Evid.R. 404(B).

“It may, however, be admissible * * * [to prove] motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.” Id. But evidence of other

crimes and acts of wrongdoing are strictly construed against admissibility. State v.

Marshall, 4th Dist. Lawrence No. 06CA23, 2007-Ohio-6298, ¶ 46.

       {¶26} In determining the admissibility of other acts evidence, trial courts should

determine: (1) whether the other acts evidence is relevant to establishing any fact that

is of consequence, i.e. the other acts make the existence of a material fact more or less

probable than it would be without that evidence; (2) whether the other acts evidence is

presented to prove the character of the accused in order to show the accused acted in

conformity with that character, or whether the other acts evidence is presented for a

legitimate purpose, such as those stated in Evid.R. 404(B); and (3) whether the

probative value of the other acts evidence is substantially outweighed by the danger of

unfair prejudice under Evid.R. 403. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-

5695, 983 N.E.2d 1278, ¶ 20; State v. Adams, 9th Dist. Lorain No. 15CA010868, 2017-

Ohio-1178, ¶ 10; State v. Fowler, 2017-Ohio-438, __ N.E.3d __, ¶ 17 (10th Dist.).

       {¶27} Nonetheless, the admission of other acts evidence lies within the broad

discretion of the trial court, and a reviewing court will not disturb the trial court’s decision

in the absence of an abuse of that discretion. State v. Morris, 132 Ohio St.3d 337,

2012-Ohio-2407, 972 N.E.2d 528, ¶ 14. “ ‘A trial court abuses its discretion when it
Washington App. No. 16CA20                                                    9

makes a decision that is unreasonable, unconscionable, or arbitrary.’ ” State v. Keenan,

143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond,

135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An abuse of discretion

includes a situation in which a trial court did not engage in a “sound reasoning process”;

this review is deferential and does not permit an appellate court to simply substitute its

judgment for that of the trial court. Darmond at ¶ 34.

       {¶28} Here, the other acts evidence was relevant to establishing Ruble’s motive

to kill Lt. Clark. “ ‘Motive’ has been defined as a mental state that induces an act, the

moving power that impels action for a definite result.” See State v. Blankenburg, 197

Ohio App.3d 201, 2012-Ohio-1289, 966 N.E.2d 958, ¶ 82, citing State v. Williams, 2d

Dist. Montgomery No. 24149, 2011-Ohio-4726, and State v. Young, 7 Ohio App.2d 194,

196, 220 N.E.2d 146 (10th Dist.1966); Black’s Law Dictionary 825 and 1039 (8th

Ed.2004) (defining “motive” as “[s]omething, esp. willful desire, that leads one to act”

and noting that “[w]hile motive is the inducement to do some act, intent is the mental

resolution or determination to do it”). “Motive is generally relevant in criminal trials even

though the matter involved is not an element of the offense that the state must prove to

secure a conviction.” Blankenburg at ¶ 82, citing Williams, 2011-Ohio-4726. Here the

other acts evidence was relevant to show what Lt. Clark’s investigation of Ruble’s arrest

of Beagle uncovered and why it led to Ruble’s firing.

       {¶29} However, in applying the second step of the analysis and Evid.R. 403(A),

the trial court abused its discretion. Although the evidence of Ruble’s treatment of

Beagle was relevant to his motive to kill Lt. Clark, the detailed facts regarding Ruble’s

treatment of Beagle after arresting him did not shed any additional light on Ruble’s
Washington App. No. 16CA20                                                    10


motive to kill Lt. Clark. The state could have proved that by testimonial and

documentary evidence simply indicating that Lt. Clark led an investigation into Ruble’s

excessive use of force, which led to Ruble’s termination from the sheriff’s department.

Instead, the state introduced graphic evidence of Ruble’s assaulting and threatening

Beagle with the manifest intent to inflame the jury by showing that Ruble was a bad

actor without significantly adding anything of value to establish the state’s case. Thus

under Evid.R. 403(A) the unfair prejudice of the other acts evidence substantially

outweighed its probative value.

       {¶30} The state cites a solitary case in support of the trial court’s Evid.R. 403(A)

determination—State v. Markins, 4th Dist. Scioto No. 10CA3387, 2013-Ohio-602, ¶ 67.

In Markins, we concluded that “evidence of the accused’s own actions is not unfairly

prejudicial as long as it is relevant to the essential elements of the offense.” Id.

Although the other-acts evidence in that case was admissible in part to prove motive

under Evid.R. 404(B), the evidence was presented primarily to show preparation for and

intent to rob and kill the defendant’s father, which was one of the offenses for which he

was convicted. Conversely, the other-acts evidence here, which provides marginally

relevant evidence concerning the basis for the investigation that ultimately led to

Ruble’s firing, is much more attenuated. Strictly construing this other-acts evidence

against admissibility, as we must, we conclude that the trial court abused its discretion

in determining that the unfair prejudice of this evidence was substantially outweighed by

its probative value.

       {¶31} Nevertheless, we conclude that the trial court’s error in admitting this

evidence constituted harmless error beyond a reasonable doubt. Under the harmless-
Washington App. No. 16CA20                                                   11


error analysis, the state bears the burden of demonstrating that the error did not affect

the substantial rights of the defendant. State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-

166, 28 N.E.3d 1256, ¶ 36. The Supreme Court of Ohio set forth a three-part test to

determine whether an alleged error affected the substantial rights of the defendant and

requires a new trial: “The reviewing court must ascertain (1) whether the defendant was

prejudiced by the error, i.e., whether the error had an impact on the verdict, (2) whether

the error was not harmless beyond a reasonable doubt, and (3) whether, after the

prejudicial evidence is excised, the remaining evidence establishes the defendant's guilt

beyond a reasonable doubt.” State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62

N.E.3d 153, ¶ 50, citing Harris at ¶ 37; State v. Oldaker, 4th Dist. Meigs No. 16CA3,

2017-Ohio-1201, ¶ 33.

       {¶32} First, we find that Ruble was not prejudiced by the error because Ruble’s

own exhibit, which he offered into evidence to show that it was the sheriff rather than Lt.

Clark who fired him, describes his termination from the sheriff’s department. This

exhibit detailed many of the same underlying circumstances of the excessive use of

force incident. Thus any prejudice from admission of the state’s other acts evidence

was minimized by the details in Ruble’s own exhibit, which stated:


       On December 6, 1979 after affecting the arrest of Gary Beagle on a
       charge of Breaking and Entering, while returning to Marietta, you ordered
       another officer, John Dake, to pull off the road, at which time you
       proceeded to question the Beagle subject, and when he did not respond
       you proceeded to slap him about the head and face, and then pull his hair
       while the subject remained handcuffed in the back seat of the patrol car
       and made threats to throw him in the Ohio River while handcuffed. In this
       manner you coerced a statement from the Beagle subject in violation of
       his constitutional rights. Such conduct, done in the presence of John
       Dake, a probationary officer who was in your charge, compromised Dake’s
       position as an officer and made him an unwilling, if inactive participant to
       the assault, especially when you advised Beagle that there would be no
Washington App. No. 16CA20                                                    12


       witnesses to your conduct. Twice before you had been reprimanded by
       the Sheriff concerning alleged incidents of discourteous treatment of the
       public.
       {¶33} Therefore, the jury had most of the same other acts evidence before it.

       {¶34} It also had Smithberger’s testimony implicating Ruble in the murder, and

Howard’s testimony establishing that Ruble, who had been drinking heavily on the day

of the murder, had threatened to kill Lt. Clark. And it had Ruble’s own statement that

No. 4 buckshot was the load to use to kill someone. The discovery of just such an

empty shell at the murder scene implicated Ruble. A car matching the description of

Ruble’s vehicle was observed near the crime scene and a military type boot, which

Ruble would likely have been wearing in conjunction with his Army Reserve duty, left a

print underneath the window in Clark’s kitchen. Thus we conclude any error in admitting

the other acts evidence was harmless beyond a reasonable doubt, and the remaining

evidence established his guilt beyond a reasonable doubt. Therefore, we overrule

Ruble’s first assignment of error.

                    B. Extrinsic Evidence of Smithberger’s Prior Arrests

                        to Impeach His Character for Truthfulness

       {¶35} In his second assignment of error Ruble contends that the trial court

violated his constitutional rights to due process, confrontation, and compulsory process

when it precluded him from calling witnesses who would have established that

Smithberger, the key prosecution witness, had been arrested twice for impersonating a

police officer. Ruble objected to the trial court’s ruling prohibiting him from introducing

extrinsic evidence of these purported arrests to attack Smithberger’s character for

truthfulness.
Washington App. No. 16CA20                                                      13


       {¶36} The court based its exclusionary ruling on Evid.R. 608(B), which provides

that “[s]pecific instances of the conduct of a witness, for the purpose of attacking or

supporting the witness’s character for truthfulness, other than conviction of crime as

provided in Evid.R. 609, may not be proved by extrinsic evidence. They may, however,

in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be

inquired into on cross-examination of the witness (1) concerning the witness’s character

for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or

untruthfulness of another witness as to which character the witness being cross-

examined has testified.”

       {¶37}    Ruble concedes that Evid.R. 608(B) explicitly prohibited the admission of

the extrinsic evidence even if Smithberger had denied the arrests on cross-examination.

See State v. Widmer, 12th Dist. Warren No. CA2012-02-008, 2013-Ohio-62, ¶ 81

(“Evid.R. 608(B) permits cross-examination of a witness’s character for truthfulness or

untruthfulness[, but] [t]he cross-examiner must take the witness’s answers as given and

cannot contradict a denial either by confronting the witness with extrinsic evidence or

proving the matter with such evidence”). But he argues that his constitutional rights to

confrontation, due process, and compulsory process were violated because the denial

of the extrinsic evidence pursuant to Evid.R. 608(B) precluded him from effectively

cross-examining Smithberger, the key prosecution witness.

       {¶38} But as Ruble concedes on appeal, he did not specifically object to the trial

court’s ruling based on the claimed constitutional violations he now raises, so he

forfeited all but plain error in that regard. See State v. Lawson, 4th Dist. Highland No.

14CA5, 2015-Ohio-189, ¶ 14, quoting State v. Knott, 4th Dist. Athens No. 03CA30,
Washington App. No. 16CA20                                                     14


2004-Ohio-5745, ¶ 9, and citing Evid.R. 103(A)(1) (“ ‘Because counsel’s objection did

not apprise the [trial] court of this specific argument, we believe a plain error analysis of

the issue is appropriate’ ”); see also Painter and Pollis, Ohio Appellate Practice, § 1:36

(2016) (“An objection to the admission of evidence on one ground * * * does not, for

purposes of appeal, preserve objections to the evidence on other grounds”).

       {¶39} To prevail on a claim of plain error Ruble must show that an error

occurred, that the error was plain, and that but for the error, the outcome of the trial

clearly would have been otherwise. State v. Mammone, 139 Ohio St.3d 467, 2014-

Ohio-1942, 13 N.E.3d 1051, ¶ 69. Appellate courts take notice of plain error with

utmost caution, under exceptional circumstances, and only to prevent a manifest

miscarriage of justice. State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63

N.E.3d 93, ¶ 62.

       {¶40} “ ‘Evid.R. 608(B) provides a well-established rule of law that protects a

legitimate state interest in preventing criminal trials from bogging down in matters

collateral to the crime with which the defendant was charged.’ ” State v. Myricks, 2d

Dist. Montgomery No. 22846, 2009-Ohio-5304, ¶ 26, quoting State v. Boggs, 63 Ohio

St.3d 418, 422-423, 588 N.E.2d 813 (1995); see also State v. Moshos, 12th Dist.

Clinton No. CA2009-06-008, 2010-Ohio-735, ¶ 18.

       {¶41} In Nevada v. Jackson, ____ U.S. ____, 133 S.Ct. 1990, 1993, 186

L.Ed.2d 62 (2013) the United States Supreme Court held that the “constitutional

propriety” of comparable evidentiary rules precluding a criminal defendant from

introducing extrinsic evidence for impeachment purposes “cannot be seriously

disputed.”   The court emphasized that it “has never held that the Confrontation Clause
Washington App. No. 16CA20                                                   15

entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes.”

Id. at 1994 (emphasis sic); see generally Giannelli, 1 Baldwin’s Oh. Prac. Evid., Section

608.5 (2016).

       {¶42} Similarly, the Ohio Supreme Court has held that the constitutional right of

confrontation guarantees only an opportunity for effective cross-examination. State v.

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 170. If a trial court

permits cross-examination to expose a motive to lie, “ ‘it is of peripheral concern to the

Sixth Amendment how much opportunity defense counsel gets to hammer that point

home to the jury.’ ” Id. at ¶ 172, quoting United States v. Nelson, 39 F.3d 705, 708, (7th

Cir.1994).

       {¶43} The trial court allowed Ruble to fully cross-examine Smithberger about his

purported arrests for impersonating a police officer. This included permitting his

counsel to suggest that the police coerced Smithberger into changing his story and lying

about Ruble’s involvement by threatening to reveal the arrests to Smithberger’s

licensing board if he did not cooperate:

       Q. What I’m asking you, is whether or not the officers that were there,
       were threatening to tell the Nursing Board that you had been arrested two
       times for impersonating an officer and that’s what they were going to
       report to the Board?

       A. They could have. I don’t remember that.

       ***

       Q. So they were telling you, they were going to -- they were threatening
       you with reporting to the Nursing Board that you were impersonating an
       officer. You understand that, right?

       A. Yes.

       ***
Washington App. No. 16CA20                                                  16



       Q. The officers were telling you, here’s what we’re going to do to you, if
       you don’t answer our questions, right?

       A. Yes.

       Q. All right. And they also tell you, apparently to give you some comfort,
       that if you cooperate, they’re -- meaning the Nursing Board -- they’re not
       even going to find out about it. Right?

       A. Yes.

       Q. All right. Now, they also then -- all up even through this accusation
       about impersonating an officer on two occasions, and the threats that
       you’re going to go to prison, they talked to you about a way to avoid
       prison, did they not?

       A. Yes.

       Q. And what was that? What were they going to do, to make sure that
       you did not go to prison?

       A. I had to cooperate with them.

       {¶44} In his closing argument Ruble’s trial counsel emphasized this testimony to

argue that Smithberger lied when he changed his story to implicate Ruble in Lt. Clark’s

murder:

       [T]hey said they had actually talked to the Nursing Board about the two
       impersonating an officer cases that were resolved as some kind of a traffic
       offense, and that they were going to take his license from him, but if you
       cooperate, no one will even know about this, including the Board.”

       {¶45} Ruble has failed to establish that the trial court erred, much less

committed plain error, by applying Evid.R. 608(B) and preventing him from introducing

extrinsic evidence on the collateral matter of whether Smithberger was arrested for

impersonating a police officer. He cites no binding case in which a court has held that

the preclusion of extrinsic evidence to impeach a witness resulted in a violation of the
Washington App. No. 16CA20                                                                        17


defendant’s constitutional rights.2 As noted, the United States Supreme Court has

emphasized that it has never so held. Jackson, __ U.S.__, 133 S.Ct. 1990, at 1994,

186 L.Ed.2d 62. There being no error, plain or otherwise, we overrule Ruble’s second

assignment of error.

                                    C. Ineffective Assistance of Counsel

         {¶46} In his third assignment of error Ruble claims that his trial counsel provided

ineffective assistance because of various acts and omissions. This assignment of error

requires an initial review on our part as it normally cannot be raised at trial.

         {¶47} To prevail on a claim of ineffective assistance of counsel, a criminal

appellant must establish (1) deficient performance by counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that, but for counsel's errors, the result of the proceeding would

have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d

1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 23. In

Ohio a properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. Thus, in reviewing the claim of

ineffective assistance of counsel, we must indulge in “a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that, under the circumstances, the


2
 We acknowledge that in State v. Williams, 21 Ohio St.3d 33, 487 N.E.2d 560 (1986), the Supreme Court of Ohio
held that the rape shield law did not preclude proof by extrinsic evidence of the rape victim’s reputation in the
community as a prostitute or her prior sexual relations with the victim to establish lack of consent as an element of
the rape charges. In Williams the victim testified on direct examination that she never consented to sex with men
because she was a lesbian; this case is distinguishable from Williams because the evidence here does not directly
“negate the implied establishment of an element of the crime charged.” Id. at 36.
Washington App. No. 16CA20                                                      18

challenged action ‘might be considered sound trial strategy.’ ” Strickland at 697.

Failure to satisfy either part of the test is fatal to the claim. Id.; State v. Bradley, 42 Ohio

St.3d 136, 143, 538 N.E.2d 373 (1989).

                         1. Failure to File Motion to Suppress Ruble’s

                     Custodial Statement to Law Enforcement Officers

       {¶48} Initially Ruble claims that his trial counsel provided ineffective assistance

by failing to move to suppress his custodial statement to law enforcement officers

because he never waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966).

       {¶49} On September 9, 2014, law enforcement officers arrested Ruble for the

aggravated murder of Lt. Clark. While handcuffed Ruble provided a statement to law

enforcement officers over two to three hours of interrogation. After he was arrested and

handcuffed, the officers read him his Miranda rights and proceeded to question him:

       JS: Mitch, I’m Jeff Severs. Jon Jenkins’ right here, this is Bruce Schuck.
       We’re part of a Cold Case Task Force that’s set up by the Attorney
       General’s Office out of Columbus.

       Before we go any further, I want to read you your rights, okay?

       Before we ask you any questions, you must understand your rights. You
       have the right to remain silent. Anything you say can and will be used
       against you in court. You have the right to talk to an attorney, lawyer, for
       advice before we ask you any questions and have him with you during
       questioning. If you cannot afford an attorney, lawyer, one will be
       appointed for you before any questioning, if you wish. If you decide to
       answer questions now without an attorney, lawyer present, you will still
       have the right to stop answering at any time.

       You also have the right -- to request an attorney, lawyer at any time during
       these proceedings. Okay?

       I’m going to step out. I got to make a call.
Washington App. No. 16CA20                                                                          19


         (Jeff Seevers exits the room.)

         BS: Mitch, like I told you, I’m Bruce Schuck. This is Jon Jenkins. We
         have worked this investigation for some time, and the whole rights things,
         is you understand your rights.3 And that’s a formality, but we want to talk
         to you about the Officer Ray Clark homicide and what happened on
         February 7th of 1981. And you know, there’s a lot of things we know about
         the investigation, and we’re going to share some of them with you -- not all
         of it, but we’re going to share with you some of the evidence that put you
         in the predicament you’re in today.

         MR: First and foremost, I didn’t kill Ray Clark. I have no knowledge of it.
         I think I’ve explained that to several people over the years. I know there’s
         been indication that I was involved, but I wasn’t. Everything that was said
         to me, presented to me was all circumstantial. I’ll leave it at that.

         {¶50}      Although Ruble did not expressly waive his rights verbally or in writing,

“[a] court may infer from the totality of the circumstances that a defendant voluntarily,

knowingly, and intelligently waived his rights.” State v. Lather, 110 Ohio St.3d 270,

2006-Ohio-4477, 853 N.E.2d 279, ¶ 9, citing State v. Clark, 38 Ohio St.3d 252, 261, 527

N.E.2d 844, 853 (1988); State v. Ward, 4th Dist. Scioto No. 10CA3370, 2012-Ohio-

3446, ¶ 12. The totality of circumstances include: the age, mentality, and prior criminal

experience of the accused; the length, intensity, and frequency of the interrogation; the

existence of physical deprivation or mistreatment; and the existence of threat or

inducement. Lather at ¶ 9.

         {¶51} It would have been preferable for the interrogating officers to secure

Ruble’s verbal or written acknowledgement that he understood his rights and waived

them before answering their questions. However, the totality of the circumstances

support a finding that he voluntarily, knowingly, and intelligently waived his rights. On

the DVD of Ruble’s statement, he nodded his head affirmatively to the officer’s


3
  At this point Ruble nods his head affirmatively as can be seen on the state’s exhibit of the DVD of his
interrogation.
Washington App. No. 16CA20                                                    20


statement “You understand your rights.” Ruble was an adult with a lengthy career in

law enforcement, including as a sergeant in a sheriff’s department and a corrections

officer when he made the statement. Although the placement of his hands in the back

while handcuffed initially caused him some discomfort, the officers relieved this

discomfort by allowing him to have his hands in front on a table. At two or three hours

the interrogation was lengthy, but it was not overly so, and although keeping him in

handcuffs is troublesome, it was not unconstitutionally oppressive. There is nothing in

the lengthy statement that indicates that Ruble did not voluntarily, knowingly, and

intelligently waive his rights and continue speaking to the officers.

       {¶52} Because a motion to suppress on this ground would have been meritless,

Ruble’s trial counsel was not deficient for failing to file one. See State v. Novak, 4th

Dist. Gallia No. 16CA4, 2017-Ohio-455, ¶ 24. “We must presume that trial counsel was

effective if counsel ‘could have reasonably decided that filing a suppression motion

would be a futile act, even if there is some evidence to support a motion.’ ” State v.

Siggers, 4th Dist. Ross No. 13CA3368, 2014-Ohio-506, ¶ 10, quoting State v. Walters,

4th Dist. Scioto No. 12CA949, 2013-Ohio-772, ¶ 20. We reject Ruble’s first ineffective-

assistance claim.

                         2. Failure to File Motion to Redact Parts of

                           Ruble’s Recorded Custodial Statement

       {¶53} Ruble next claims that his trial counsel was deficient for failing to move to

redact certain portions of his recorded custodial statement. First he contends that his

trial counsel should have moved to redact those parts of his custodial statement where

officers questioned him about his purported misconduct as an officer. More specifically,
Washington App. No. 16CA20                                                   21


Ruble now objects to: (1) officers questioning him about his improper use of force at the

Beverly Police Department; (2) officers informing him that his own personnel record

from the sheriff’s department contradicted him about his violent tendencies; (3) officers

informing him that his personnel file contained several incidents where it is claimed that

he roughed up individuals in handcuffs; and (4) officers questioning him about whether

he had a substance abuse problem—alcohol or drugs—at the time of the murder.

       {¶54} Ruble analogizes these matters to the impermissible other acts evidence

he objected to in his first assignment of error, but claims they are even further removed

and are not admissible on the issue of motive. We reject Ruble’s contention because

unlike the evidence concerning his excessive use of force against Beagle, the state did

not introduce testimonial extrinsic evidence concerning his other purported misconduct

while employed as a law enforcement officer, or the use of drugs. Although the state

did introduce testimonial evidence concerning Ruble’s admission to a police officer that

alcohol made him violent and to his use of alcohol on the same day of the murder, he

does not generally argue that this testimony was inadmissible, except for his next

ineffective-assistance claim.

       {¶55} Moreover, Ruble’s own exhibit referring to his termination as a

Washington County Deputy Sheriff indicated that “[t]wice before [he] had been

reprimanded by the Sheriff concerning alleged incidents of discourteous treatment of

the public,” so that these other incidents would have also been relevant to his discharge

and thus his motive for killing Lt. Clark. And as noted in resolving his first assignment of

error, Ruble’s prior misconduct regarding the use of force against Beagle incident was

before the jury through this same exhibit. Ruble denied any substance abuse during his
Washington App. No. 16CA20                                                     22


custodial statement. Evidence of his alcohol abuse was also already properly

introduced in the form of Howard’s testimony and his own earlier statement to law

enforcement officers that he drank wine on his way back to Marietta on the evening of

the murder. Ruble has not established that his trial counsel was ineffective for failing to

request the redaction of these limited references in his post-indictment custodial

statement.

       {¶56} Moreover, assuming his trial counsel’s performance was deficient for

failing to move to redact all or some of these limited instances of interrogation, Ruble

has not established any resulting prejudice, i.e., a reasonable probability that, but for

counsel's errors, the result of the proceeding would have been different. As noted, most

of Ruble’s prior misconduct as a law enforcement officer had already been admitted.

And Ruble denied any alcohol or drug abuse during his custodial statement. Evidence

of alcohol abuse to contradict his custodial statement was admissible in the form of

Howard’s testimony and his own earlier statement to law enforcement officers that he

drank wine on his way back to Marietta on the evening of the murder. He denied any

drug abuse, and the state introduced no evidence to the contrary. Ruble has not

established that his trial counsel was ineffective for failing to request the redaction of

these limited references in his post-indictment custodial statement.

       {¶57} Next Ruble contends that his trial counsel provided ineffective assistance

by failing to request the redaction of those portions of his custodial statement in which

the interrogating officers expressed their opinions that he was guilty or lying. The

following are illustrative of these questions:
Washington App. No. 16CA20                                                   23


       BS: Okay Let’s you and I agree that we’re not going to go backwards
       with any more lies, because you’re sitting here and misrepresented some
       things. Okay?

       MR: Okay.

       BS: Can we agree you’re not going to go backwards?

       MR: I have been as truthful as I am capable of at this particular point in
       time. Beyond that, no lies.

       ***

       BS: Yeah, and I’ll be honest with you, Mitch, I’m -- I’m having a hard time
       sympathizing with you, simply because you’re not manning up and taking
       responsibility. I feel for your wife, your kids, your grandkids, because
       you’ve been taken away from them. I feel bad for Patricia Clark who knelt
       -- knelt down beside her husband in that blood.

       MR: Yeah.

       {¶58} In general, opinion testimony of a police officer about the guilt of the

defendant is inadmissible. See generally State v. Battiste, 8th Dist. Cuyahoga No.

102299, 2015-Ohio-3586, ¶ 35-36. That is, “[a] police officer's opinion that an accused

is being untruthful is inadmissible.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2,

880 N.E.2d 31, ¶ 122.

       {¶59} But the key to the cases that Ruble cites is that the error was caused by

police officers allegedly providing opinion testimony under oath that the defendant was

guilty. See, e.g., State v. Tyler, 50 Ohio St.3d 24, 25, 553 N.E.2d 576 (1990). By

contrast the objections here are to unsworn statements made by police officers to the

defendant during his custodial interrogation. The rule that a police officer’s opinion that

an accused is being untruthful is inadmissible is applicable to testimony, not recorded

interrogation. See State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 66
Washington App. No. 16CA20                                                    24

(“the rule from Davis that [appellant] cites applies to testimony, not videos of

interviews”).

       {¶60} And, Bruce Schuck, a special deputy with the Washington County Sheriff’s

Office, testified that the officers employed the “John Reid technique” of interrogations,

which includes giving false information and contesting the interviewees on their version

of the facts. Thus the jury was well aware from this testimony that the statements and

questions of the officers during their post-indictment custodial interrogation of Ruble

were not necessarily truthful and were meant to elicit admissions from him.

       {¶61} Furthermore, the officers who questioned Ruble in the contested post-

indictment interrogation were present at trial and subject to cross-examination

concerning their statements, questions, and comments during the interrogation. See

State v. Gray, 9th Dist. Wayne No. 08CA0057, 2009-Ohio-3165, ¶ 17 (rejecting claim

that officers’ lies during a taped interrogation of a criminal defendant constituted

prejudicial error because, among other reasons, the officers who questioned the

defendant testified at trial and were subject to cross-examination). We cannot discern

any prejudice to Ruble from these statements and questions.

       {¶62} Ruble has failed to establish that his trial counsel’s failure to redact

portions of his post-indictment interrogation constituted ineffective assistance of

counsel.

                  3. Failure to Object to Part of Law Enforcement Officer’s

                Testimony that Was Not Based on his Personal Knowledge

       {¶63} Next Ruble claims that his trial counsel provided ineffective assistance

because he failed to object to the testimony of Detective Lieutenant Jeff Seevers of the
Washington App. No. 16CA20                                                   25


Washington County Sheriff’s Office’s Cold Case Unit concerning a conversation then-

Sheriff Robert Schlicher had with Ruble in January 2004. Lt. Seevers described a

meeting between Sheriff Schlicher and Ruble where Ruble said he used to drink wine,

but it made him do crazy things; the sheriff mentioned to Ruble that on the night of Lt.

Clark’s murder, Ruble admitted he had been drinking wine heavily.

       {¶64} Lt. Seever testified that during the conversation, he and another employee

stood outside the door, which was hollow, so they could overhear the conversation

between the sheriff and Ruble “quite easily” and that the sheriff’s report of it was

“accurate”:

       Q. All right, and did Sheriff Schlicher give you any direction as to what you
       should do while he was speaking with Mr. Ruble?

       A. At that time, me and Mark Warden decided to step outside the door. And --
       and we were in the door that led to our office. And it was a wooden door, but it
       was hollow, so you could hear through it quite easily.

       ***

       Q. All right. So, Sheriff Schlicher was going to have this conversation with Mitch
       Ruble and you and Mark Warden were advised to listen in the -- from the office
       next door and listen to everything that was said?

       A. That is correct.

       Q. And did you do that?

       A. Yes, we did.

       Q. And following Mr. Ruble, Mitch Ruble’s departure from the Sheriff’s Office, did
       you get back together with Sheriff Schlicher and Mark Warden and yourself?

       A. Yes, as soon as Mitch Ruble left, we sat down and we had a briefing on * * *
       the conversation between the sheriff and Mitch Ruble and then we had the sheriff
       dictate his report right there.

       Q. And were you there with the sheriff when he dictated that report?
Washington App. No. 16CA20                                                   26


       A. All three of us were there, yes.

       Q. And did that -- as he dictated that, did the things as he was dictating as to
       what had occurred * * * was that accurate as to what had occurred, as far as you
       could hear?

       A. Yes, it was.

       Q. And did you subsequently see, was that dictation subsequently transcribed?

       A. Yes, it was.

       Q. And did you see it within a month or two after that, at least?

       A. It was just a few days later. Yeah, we all reviewed it again to make sure it
       was accurate.

       Q. And it was fairly accurate?

       A. Yes, it was.

       {¶65} “Evid.R. 602 allows lay witnesses to testify about matters within their

personal knowledge”; “[a]n individual has personal knowledge of a matter when the

individual gains the knowledge through firsthand observation or experience.” See State

v. Shahan, 4th Dist. Washington No. 02CA63, 2003-Ohio-6945, ¶ 38, citing Bonacorsi v.

Wheeling & Lake Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 26;

see also State v. Petty, 10th Dist. Franklin No. 15AP-950, 2017-Ohio-1062, ¶ 53

(“Evid.R. 602 provides that ‘[a] witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal knowledge of the

matter’). Notwithstanding Ruble’s emphasis on the qualifiers in some of the questions

to which Lt. Seevers responded, i.e., “fairly accurate” and “as far as you could hear,” his

testimony was sufficient to establish that he had personal knowledge about the

conversation between Sheriff Schlicher and Ruble because he overheard it, albeit

remotely, from outside a hollow door through which he could hear “quite easily.” And he
Washington App. No. 16CA20                                                     27


reviewed the sheriff’s dictated statement regarding the conversation to “make sure it

was accurate.” Therefore, Ruble’s counsel was not deficient for failing to raise this

meritless objection. We reject Ruble’s third ineffective-assistance claim.

                           4. Failure to Preserve Issues for Appeal

       {¶66} In Ruble’s final ineffective-assistance claim, he contends that his counsel

performed unreasonably by failing to preserve the issues raised in his second (trial

court’s preclusion of extrinsic evidence of Smithberger’s two prior arrests for

impersonating a police officer) and fourth (trial court’s jury instruction on aiding and

abetting) assignments of error. For the reasons discussed in our decision overruling

these assignments of error, we also reject Ruble’s final ineffective-assistance claim.

       {¶67} Therefore, Ruble has failed to establish that his trial counsel provided

ineffective assistance of counsel. We overrule his third assignment of error.

                          D. Jury Instruction on Aiding and Abetting

       {¶68} In his fourth assignment of error Ruble argues that the trial court

committed plain error when it instructed the jury on aiding and abetting. Although

Ruble’s trial counsel objected to the state’s requested charge on aiding and abetting, he

did not renew the objection after the jury had been instructed, but before it retired.

       {¶69} Although the parties proceed on the basis of plain error, we assume that

Ruble’s objection to the instruction before the parties’ closing argument sufficiently

preserved this issue for appeal. See Crim.R. 30(A) (“On appeal, a party may not assign

as error the giving or the failure to give any instructions unless the party objects before

the jury retires to consider its verdict, stating specifically the matter objected to and the
Washington App. No. 16CA20                                                    28


grounds of the objection. Opportunity shall be given to make the objection out of the

hearing of the jury”).

       {¶70} A jury instruction must present a correct, pertinent statement of the law

that is appropriate to the facts. State v. Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, 49

N.E.3d 1248, ¶ 25. Thus, “[r]equested jury instructions should ordinarily be given if they

are correct statements of law, if they are applicable to the facts in the case, and if

reasonable minds might reach the conclusion sought by the requested instruction.”

State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240. “ ‘Our

review concerning whether jury instructions correctly state the law is de novo.’ ” State v.

Kelly, 2016-Ohio-8582, __ N.E.3d __, ¶ 86 (4th Dist.), quoting State v. Kulchar, 4th

Dist. Athens No. 10CA6, 2015-Ohio-3703, ¶ 15.

       {¶71} Ruble argues that he did not receive adequate notice of the aider and

abettor charge because he was indicted as the principal offender on the aggravated

murder charge and the state’s case proceeded on that theory. We reject his argument

because under R.C. 2923.03(F), “[a] charge of complicity may be stated in terms of

[that] section, or in terms of the principal offense.” “Accordingly, a defendant who is

‘indicted for aggravated murder in terms of the principal offense * * * [is] on notice that

evidence could be presented that he was either a principal offender or an aider and

abetter.’ ” McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶ 244,

quoting State v. Ensman, 77 Ohio App.3d 701,703, 603 N.E.2d 303 (11th Dist.1991).

       {¶72} “As a result, a jury instruction on complicity is proper as long as ‘the

evidence adduced at trial could reasonably be found to have proven the defendant

guilty as an aider and abettor.’ ” McKelton at ¶ 244, quoting State v. Perryman, 49 Ohio
Washington App. No. 16CA20                                                        29

St.2d 14, 258 N.E.2d 1040 (1976), paragraph five of the syllabus, vacated on other

grounds, 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156 (1978); see also State v.

Spencer, 2017-Ohio-456, __ N.E.3d __, ¶ 53.

       {¶73} Next Ruble argues that because the state’s entire case was premised on

its claim that he was the principal offender, the trial court erred in giving the instruction

on aiding and abetting. We reject his argument because it is well established that “ ‘[a]

jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of any

witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams No.

15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto No.

12CA3507, 2014-Ohio-1941, ¶ 23; see also McKay Mach. Co. v. Rodman, 11 Ohio

St.2d 77, 82, 228 N.E.2d 304 (1967) (“The jury can accept all, a part or none of the

testimony offered by a witness whether it is expert opinion or eyewitness fact, whether it

is merely evidential or tends to prove the ultimate fact”).

       {¶74} In his custodial statement Ruble denied any responsibility for or

knowledge of who perpetrated the murder. The evidence included testimony that the

murder weapon was a pump action shotgun that Smithberger once possessed, that

Smithberger previously lied about his involvement in the crime, that Smithberger looked

up to Ruble, and that Ruble repeatedly told the police he did not shoot Lt. Clark. Under

these circumstances, the jury could have reasonably determined that even if Ruble was

not the shooter, there was sufficient evidence that he at least aided and abetted

Smithberger in the commission of the aggravated murder. That is, the jury could have

credited Ruble’s statements to officers that he did not personally shoot Lt. Clark, but

could have reasonably inferred that he directed Smithberger to do so. This is consistent
Washington App. No. 16CA20                                                      30


with the general rule that the weight and credibility of evidence are to be determined by

the trier of fact because it is in the best position to gauge the witnesses' demeanor,

gestures, and voice inflections, and to use these observations to weigh their credibility.

See State v. Kirkland, 140 Ohio St.3d 73, 15 N.E.3d 818, 2014-Ohio-1966, ¶ 132;

Reyes-Rosales at ¶ 17. Therefore, the trial court did not commit error, plain or

otherwise, in instructing the jury that it could find Ruble guilty as an aider and abettor.

We overrule Ruble’s fourth assignment of error.

                                      E. Cumulative Errors

         {¶75} In his fifth assignment of error Ruble asserts that the cumulative effect of

the errors in his first four assignments of error warrant the granting of relief. Under the

cumulative-error doctrine, “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 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), citing State v.

DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.

We reject Ruble’s assertion because “[t]he doctrine is not applicable to the case at bar

as we do not find multiple instances of harmless error.” Garner at 64. We have found

only one instance of harmless error - the admission of testimonial other acts evidence

as discussed in his first assignment of error. Ruble has not established that he was

deprived of his constitutional right to a fair trial. We overrule Ruble’s fifth assignment of

error.

                                      IV. CONCLUSION
Washington App. No. 16CA20                                              31


      {¶76} Ruble has not established any reversible error. Having overruled his

assignments of error, we affirm his conviction for aggravated murder.

                                                              JUDGMENT AFFIRMED.
Washington App. No. 16CA20                                                      32


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas 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.

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, 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.
