[Cite as State v. Stone, 2014-Ohio-4803.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 100794



                                            STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                            CLEVE L. STONE

                                                                 DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-11-554536-A

        BEFORE:           Jones, J., Boyle, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: October 30, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY:    Erika B. Cunliffe
          Paul Kuzmins
Cuyahoga County Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

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

       {¶1} Defendant-appellant Cleve L. Stone appeals from his theft conviction.              He

contends that his trial counsel was ineffective. For the reasons that follow, we affirm.

                                     I.     Procedural History

       {¶2} In October 2011, Stone was charged with grand theft relating to an incident that

occurred in August 2011 at his place of employment, Federal Metal. Stone rejected the state’s

plea deal, maintained his innocence, and the case proceeded to a jury trial.       After the state

presented its case, the defense moved for a Crim.R. 29 judgment of acquittal, which the trial

court denied. The defense did not present any witnesses. The jury found Stone guilty of grand

theft as charged. The trial court sentenced him to a year and a half of community control

sanctions and ordered that he pay $7,771.95 in restitution to Federal Metal.

                                      II.    Trial Testimony

       {¶3} Federal Metal was in the business of purchasing metals from large scrap processing

companies, copper mills, and brass mills, and melting the metal down into what is known in the

industry as “ingots,” which the company would then sell for use in a variety of products.

       {¶4} When exiting from the rear of the company’s building, there was a lot, the end of

which was fenced and gated.      Outside of the gate was a service road, which was utilized by

drivers of semi-trailer trucks when they would make deliveries.       Both Dean Turk, the shift

supervisor on duty at the time of the incident, and Peter Nagusky, the president of the company,

testified that there was never any reason why an employee would need to be back by the gate in

the performance of his duties.   Deliveries were made at the dock of the building and relative to

outdoor work, it was performed in and around the dock area.
       {¶5} Stone’s duties at the company included operating a forklift to transport the metals,

generally either for separation of the various metals or to the furnace to be melted.

       {¶6} Turk, the supervisor on the evening in question, testified that, as was part of his

responsibilities, he was walking around the outside of the business to make sure it was secure

and any employees who were working outside were doing their work. Turk testified that as he

walking to the back lot, he heard a “loud noise of crashing.” As he walked to investigate, Turk

saw Stone “coming back through the gate” driving a fork truck with a box on the forklift.    Turk

further testified that he saw a white pick-up truck on the service road. There was a man

standing by the truck and when he saw Turk, he got in the truck and drove away.

       {¶7} Turk questioned Stone about what was going on and Stone told him that “security

was back there.” Turk testified that the company did not have separate security personnel,

however. Further, both Turk and Nagusky testified that the company only had security cameras

by the building, and not by the fence and gate.

       {¶8} Turk examined the box Stone had on his forklift.        The label on the box indicated

that it contained 1,981 pounds of copper.         The box only contained one brick of copper,

however, which Turk knew did not weigh that amount. Turk also found scraps of copper just

outside of the gate, which was unusual, as corroborated by Nagusky.              Turk immediately

suspended Stone, and Stone left. Turk called Nagusky and the police.

       {¶9} Nagusky and the police arrived at the business. Nagusky weighed the brick that

had been in the box on Stone’s forklift; it weighed 62 pounds. Nagusky testified that the

business paid $4.07 per pound for the copper in that box, and 1,919 pounds was missing.

                                      III.   Law and Analysis

       {¶10} In his first two assignments of error, Stone contends that his counsel was
ineffective because she:   (1) “failed to object to inadmissible hearsay and commentary on Mr.

Stone’s post-accusation silence” and elicited “testimony of the same during cross-examination”;

and (2) “failed to meaningfully participate in voir dire.” In his third assignment of error, Stone

contends that the “cumulative mistakes of trial counsel” denied him a fair trial.

       {¶11} We review alleged instances of ineffective assistance of trial counsel under the

two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989). Pursuant to these cases, in order to reverse a conviction

based on ineffective assistance of counsel, a defendant first “must show that counsel’s

representation fell below an objective standard of reasonableness.” Strickland at 688. Second,

“[t]he defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id. at 694.

       {¶12} “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. Furthermore,

       [b]ecause of the difficulties inherent in making the evaluation, a court must
       indulge 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 challenged action ‘might be
       considered sound trial strategy.’

Id. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

       {¶13} With the above-stated in mind, we consider Stone’s contentions.

Post-Accusation/Pre-Arrest Silence

       {¶14} Despite how Stone’s first assignment of error is captioned, he contends that his

counsel was ineffective because she “initiated and carried-on a lengthy conversation with Peter

Nagusky regarding Mr. Stone’s failure to cooperate with the police investigation and the internal
* * * investigation.”    According to Stone, “[i]n essence, [his] own lawyer introduced evidence

of [his] pre-arrest silence.” Upon review, the state, not Stone’s counsel, initiated the line of

questioning; but regardless of who initiated it, we find no error.

       {¶15} On direct examination, both Turk and Nagusky testified that on the evening of the

incident, after the theft was discovered, the police were called to the business. Turk, who was

the state’s first witness, testified that after he confronted Stone, he told him he was suspended

pending investigation and Stone left. When asked if he had seen Stone since, Turk responded

“[n]ot until today.”

       {¶16} On cross-examination, defense counsel questioned Turk as to why, if he thought

Stone had stole the copper, he would let him go and then call the police. Turk responded that

he “really didn’t know what to do with him at that point,” and that when he suspended him he

“told him [he] would talk with him and ask him why and what he was doing.”                 Thus,

presumably, Turk intended to talk to Stone at a later time.

       {¶17} On direct examination of Nagusky, the assistant prosecuting attorney questioned

Nagusky as to why the company decided to involve the police rather than just proceed with an

internal investigation, as had been intimated to Stone. Nagusky answered:

       Our efforts from our staff to contact Cleve Stone went unanswered so we couldn’t
       interview Cleve about the matter and nobody stepped forward. We were
       suspicious that maybe there were others involved that may have had knowledge,
       and so we were hopeful that employees would cooperate, but failing being able to
       reach Cleve Stone and failing to find out any more information from our
       employees we decided to report it * * * to begin the investigation of Cleve.

       {¶18} Nagusky elaborated that the company attempted to contact Stone the day following

the incident, but was unsuccessful and, therefore, decided to pursue an investigation with the

assistance of law enforcement.
       {¶19} On cross-examination, defense counsel questioned Nagusky if Stone had been paid

for the work he did prior to his employment relationship with the company ending. Nagusky

responded, “[o]h sure.” Counsel continued the line of questioning, asking if there was a time

shortly after the incident that Stone came into the business looking for his paycheck. Nagusky

answered that he did not know anything about that.

       {¶20} Based on the above testimony, it was not defense counsel who initiated testimony

about Stone’s post-accusation silence. It was first intimated on the direct examination of the

state’s first witness, Turk, when he testified that he told Stone when he suspended him that he

wanted to talk to him about the incident, but did not see Stone again until the time of trial.

Further, in regard to Nagusky’s testimony, the issue was again initiated by the state on direct

examination, not defense counsel.

       {¶21} The Fifth Amendment to the United States Constitution provides that no person

“shall be compelled in any criminal case to be a witness against himself.” This provision

applies to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84

S.Ct. 1489, 12 L.Ed.2d 653 (1964).

       {¶22} In State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, the Ohio

Supreme Court addressed the issue of pre-arrest silence vis-a-vis one’s Fifth Amendment rights.

The court held that the “use of a defendant’s pre-arrest silence as substantive evidence of guilt

violates the Fifth Amendment privilege against self-incrimination.” Id. at ¶ 38.

       {¶23} In Leach, two women called the police and accused the defendant of attempted

rape and other crimes. During the state’s case-in-chief, the police investigator testified that one

of the victims had provided him with the defendant’s phone number. The investigator called

the defendant and made an appointment to talk with him the next day.     The investigator testified
that the defendant did not keep the appointment, and that the defendant had left a message on the

police answering machine that he wanted to speak with an attorney before talking with the police.

           {¶24} The court found that the state violated the defendant’s Fifth Amendment rights,

stating the following:

           The state in this case presented testimony that [the defendant], who had not yet
           been arrested or Mirandized, remained silent and/or asserted his right to counsel
           in the face of questioning by law enforcement. This testimony was clearly meant
           to allow the jury to infer [the defendant’s] guilt. Otherwise, jurors might reason,
           [the defendant] would have offered his version of events to law enforcement.

Id. at ¶ 25.

           {¶25} The Leach court, however, recognized two exceptions for the use of pre-arrest

silence: (1) as impeachment evidence1 (id. at ¶ 21-22) and (2) as evidence of the “course of the

investigation.” Id. at ¶ 32.2     The latter exception applies here.

           {¶26} The testimony about Stone’s silence was first elicited by the state. It was not

elicited, however, as substantive evidence of his guilt.      Rather, it was elicited to explain to the

jury why, despite Turk telling Stone that he would talk to him about the incident, he never did

and, instead, the company initiated a police investigation.

           {¶27} Moreover, in regard to defense counsel’s failure to object, the record demonstrates

that counsel had a strategy: she was attempting to discredit the company’s contention that after

Turk suspended Stone on the evening of the incident, he never made himself available to the

company.       According to counsel’s line of questioning, it was the defense’s position that Stone

had not been fully paid for his work and he went to the company to inquire about his paycheck,


1
    Following Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).

The court held that the sergeant’s testimony in that case that he had made an appointment to meet
2



with the defendant but the appointment was not kept was “legitimate.” Leach at ¶ 32.
thus making himself available for at least an attempt of a company representative to question

him.

       {¶28} On this record, trial counsel was not ineffective in her handling of the testimony

regarding Stone’s pre-arrest silence, and the first assignment of error is therefore overruled.

Voir Dire

       {¶29} In his second assignment of error, Stone contends that his trial counsel was

ineffective because she “failed to meaningfully participate in voir dire.” Specifically, counsel:

(1) only asked two questions, (2) did not use any peremptory challenges, (3) “told the jury Stone

may not be innocent,” and (4) failed to object to the non-presence of two jurors.

       {¶30} It is well-established that reviewing courts should decline to “second-guess trial

strategy decisions” or impose “hindsight views about how * * * counsel might have voir dired

the jury differently.” State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932 (1998); see also

State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 139; State v. Murphy, 91

Ohio St.3d 516, 539, 747 N.E.2d 765 (2001).

       {¶31} “Few decisions at trial are as subjective or prone to individual attorney strategy as

juror voir dire, where decisions are often made on the basis of intangible factors.” Miller v.

Francis, 269 F.3d 609, 620 (6th Cir.2001). “The selection of a jury is inevitably a call upon

experience and intuition. The trial lawyer must draw upon his own insights and empathetic

abilities. Written records give us only shadows for measuring the quality of such efforts. * * *

[T]he selection process is more an art than a science, and more about people than about rules.”

Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir.1989). For these reasons, it is recognized that

“counsel is in the best position to determine whether any potential juror should be questioned and

to what extent.” Murphy, 91 Ohio St.3d at 539, 747 N.E.2d 765.
           {¶32} Upon review, we do not find that trial counsel was ineffective during voir dire

because she only asked two questions and did not exercise any peremptory challenges.

           {¶33} This was a relatively straightforward case: the state alleged that copper was missing

from a delivery box that was on a forklift truck that Stone was operating.            The trial court

thoroughly questioned the venire. (See tr. 4-80.) The assistant prosecuting attorney likewise

throughly questioned the venire. (See tr. 85-113.) Defense counsel acknowledged that the

panel had been throughly questioned: “Ladies and gentlemen of the jury, the Judge and my

honorable opponent * * * [have] done such a great job in interrogating each and every one of you

that I really don’t have any questions.”

           {¶34} Counsel, however, asked arguably the most important questions: (1) “I just want to

ask you generally if all of you would be able to be fair and impartial to my client?” and (2) “* * *

as my client sits here today, is there anybody right now that would say he was guilty?” Further,

counsel reminded the panel that only if the state reached its burden of proof beyond a reasonable

doubt on each and every element could they find Stone guilty.

           {¶35} Moreover, defense counsel had a strategy in not exercising any peremptory

challenges. 3      Specifically, five of the twelve jurors had financial backgrounds.        Defense

counsel believed that to be good for her client: “And I am loving this with all the CPAs,

because I know you are going to hold them to that burden of precision, of the accuracy, of how

you track inventory and how you know something is missing.”

           {¶36} Further, although defense counsel stated that one juror, a practicing CPA, “scared”

her “a little bit” because he described himself as “conservative,” counsel reasoned through it,


3
    The state also did not exercise any peremptory challenges.
saying:

          I am conservative, too. I like to dress conservative. I tell my children, try to be
          conservative in their actions so that 20 years later something doesn’t come back to
          haunt them. But I love the fact that as a conservative, this CPA, you are going to
          hold the State to its burden of beyond a reasonable doubt.

          {¶37} On this record, defense counsel was neither ineffective on her questioning of the

venire nor for choosing not to exercise any peremptory challenges.

          {¶38} In regard to what Stone characterizes as his counsel stating that he may not be

innocent, the statement must be placed in context.        During voir dire of the alternate jurors,

defense counsel asked: “So do you understand that as my client sits here today * * * [he] is not

guilty?”

          {¶39} Defense counsel then stated and reiterated the question as follows:

          There is a difference, and the Judge will explain it, between being innocent and
          being not guilty. Not guilty is a legal term which means each and every element
          hasn’t been proven beyond a reasonable doubt. So he may not be pure as the
          driven snow, but do you understand that until he is proven guilty beyond a
          reasonable doubt he is not guilty?

          {¶40} Counsel’s statement was, in fact, true, and when placed in context, there was

nothing ineffective about her making it.

          {¶41} We likewise find nothing ineffective about counsel’s failure to object to two jurors

being excused during voir dire to go to the restroom. The first instance occurred when juror

number eight requested to be excused after the state completed its voir dire of him. Although

the record does not indicate when he returned to the courtroom, there was no prejudice to Stone.

As stated above, defense counsel did not have any specific questions for any one juror, and her

admonishments mirrored what had already been thoroughly addressed by the court and/or the

state.
           {¶42} The second instance occurred when the alternate juror number one, after being voir

dired by the court, was excused for the restroom while the court was conducting its voir dire of

alternate juror number two. The record clearly demonstrates that alternate juror number one

was only briefly out of the courtroom4 and was back during both the state and defense’s voir

dire. Further, alternate juror number one never deliberated.

           {¶43} In light of the above, defense counsel was not ineffective for failing to object to the

excusal of two jurors to use the restroom.

           {¶44} We also find Stone’s final claim, that the cumulative errors of counsel deprived

him of a fair trial, to be without merit. Pursuant to 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). The doctrine is not applicable, however, when the alleged errors are found

to be nonexistent.        State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 48.

           {¶45} Having found no errors, the cumulative error doctrine is inapplicable to this case.

           {¶46} Stone’s three assignments of error are overruled.

           {¶47} Judgment affirmed.

           It is ordered that appellee recover of appellant costs herein taxed.

           The court finds there were reasonable grounds for this appeal.

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

court to carry this judgment into execution.


4
    It is indicated on page 127 of the transcript that he left and indicated on page 128 that he returned.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
