[Cite as State v. McCrary, 2016-Ohio-4842.]
                                  IN THE COURT OF APPEALS OF OHIO
                                     FOURTH APPELLATE DISTRICT
                                           ROSS COUNTY


STATE OF OHIO,                                              :

        Plaintiff-Appellee,                                 :    Case No. 15CA3505

        vs.                                                 :

JASON A. MCCRARY,                                           :    DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                                :

______________________________________________________________

                                                 APPEARANCES:

Chase B. Bunstine, Chillicothe, Ohio, for appellant.1

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 6-29-16
ABELE, J.

        {¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of

conviction and sentence. A jury found Jason A. McCrary, defendant below and appellant herein,

guilty of the failure to register a change of address in violation of R.C. 2950.05. Appellant

assigns the following errors for review:

                   FIRST ASSIGNMENT OF ERROR:

                   “APPELLANT’S FIFTH, EIGHTH, AND FOURTEENTH
                   AMENDMENT PROCEDURAL DUE PROCESS RIGHTS
                   WERE VIOLATED AS HE DID NOT CONSENT TO THE

        1
            Different counsel represented appellant during the trial court proceedings.
ROSS, 15CA3505                                                                                   2

                 STIPULATION OF THE PROSECUTOR AND DEFENSE
                 COUNSEL.”
                 SECOND ASSIGNMENT OF ERROR:

                 “APPELLANT’S CONSTITUTIONAL RIGHT TO A FAIR
                 TRIAL WAS VIOLATED DUE TO PROSECUTOR
                 MISCONDUCT.”

                 THIRD ASSIGNMENT OF ERROR:

                 “APPELLANT WAS SUBJECTED TO INEFFECTIVE
                 ASSISTANCE OF COUNSEL DUE TO THE DEFENSE
                 COUNSEL’S (1) STIPULATION TO AN ESSENTIAL
                 ELEMENT OF THE CHARGED OFFENSE WITHOUT
                 APPELLANT’S CONSENT AND/OR (2) FAILURE TO MOVE
                 FOR A MISTRIAL AFTER THE PROSECUTOR’S
                 MISCONDUCT.”

        {¶ 2} In November 2005, appellant was convicted of unlawful sexual conduct with a

minor. This is a sexually oriented offense that requires, among other things, that he register a

change of address more than twenty days prior to moving. Appellant’s last known registered

address was the home of his uncle at 214 Church Street “Roxabel, Frankfort, Ohio.”               A

subsequent investigation revealed that appellant, in fact, resided at 1156 Massieville Road in

Chillicothe.

        {¶ 3} On June 19, 2015, the Ross County Grand Jury returned an indictment that

charged appellant with the failure to register a change of address. At the jury trial, Marvin

Woodfork, appellant’s uncle, testified that his nephew did not live with him at his Church Street

home. Michael Stitt, who previously oversaw the Ross County Sheriff’s sex offender registry,

testified that in 2014 appellant registered as living at 214 Church Street. The witness testified

that appellant made no further change of address while he worked at that position. Andrew

Duncan, who took over for Stitt, testified that once he took over registry, appellant registered no
ROSS, 15CA3505                                                                                     3

further change of address. Ross County Sheriff's Detective John Winfield testified that he found

a letter addressed to appellant at the Massieville Road address, and that a room in that house

contained appellant's clothing.

        {¶ 4} After hearing the evidence, the jury returned a guilty verdict. The trial court

sentenced appellant to serve thirty six months in prison. This appeal followed.

                                                  I

        {¶ 5} Appellant’s first assignment of error is directed toward his trial counsel’s various

stipulations with the State. Those stipulations included that appellant (1) had previously been

convicted of unlawful sexual conduct with a minor which “was the basis of the registration and

change of address notification requirements,” and (2) had previously been convicted of a failure

to register a change of address. Appellant argues that the stipulations were made without his

consent and, thus, deprived him of various rights under the United States Constitution.

        Our Second District colleagues have opined that the “better practice” is for trial courts to

inquire of a defendant whether counsel is permitted to make stipulations that go to important

issues in the case. “However, failure to do that is not fatal . . .” (Emphasis added.) State v. Carr,

2nd Dist. Montgomery, No. 23826, 2010-Ohio-6470, at ¶13. Moreover, in State v. Rutter, 4th

Dist. Hocking No. 02CA17, 2003-Ohio-373 at ¶34, we note that “it [was] improbable that trial

counsel would have stipulated [to something] without appellant's knowledge and consent.”

(Emphasis added.) Appellant cites nothing in the record to suggest that counsel's stipulation was

made over his objection. Thus, we find no merit to his argument.

        {¶ 6} Appellant analogizes the failure to obtain his explicit verbal consent to the

stipulations with the failure to obtain a written waiver of a jury trial. He cites Singer v. United
ROSS, 15CA3505                                                                                                    4

States, 380 U.S. 24, 34, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) for the proposition that the

fact-finding province of the jury must be “jealously” guarded. 2                    We agree, as an abstract

principle of law, that the right to jury trial should be guarded at all costs. However, that is not

the issue here. Appellant was afforded a jury trial. Nothing in the record suggests that the State

could not have introduced evidence to prove both stipulations. Rather, stipulations simply

preserve judicial resources and shortened the time of trial.                  Also, no evidence exists that

appellant was materially prejudiced by counsel’s actions. The stipulation that he is a “sexual

oriented offender” is repetitive of testimony from several witnesses. Moreover, we find no

indication that the stipulated evidence is factually untrue.

         {¶ 7} Accordingly, for these reasons, we hereby overrule appellant's first assignment of

error.

                                                         II

         {¶ 8} In his second assignment of error, appellant asserts that his conviction should be

reversed because he was the victim of prosecutorial misconduct. During opening statement, the

assistant prosecutor told the jury that appellant’s girlfriend, Nicole Perkins, and her son, Myra,

lived at the Massieville Road address and informed investigating officers that appellant had lived

there for several months. Later, after appellant’s uncle testified, the assistant prosecutor called

both Nicole and Myra as witnesses. Despite having been subpoenaed, neither witness was

present at trial. The assistant prosecutor, apparently aware they were not preset, called them

anyway. This led to the following dialogue at a bench conference:


         2
          Appellant’s citation is not so much to Singer as it is to a quote the Singer court borrowed from Patton v.
United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1965).
ROSS, 15CA3505                                                                                      5

        “THE COURT:           I assume it was your intent to make sure the jury heard all
                              of that as loud as you could do that, is that correct? Why
                              did you just do it . . . first of all at the beginning of the trial
                              is when we typically always handle this. You purposely
                              stood that the back podium and in a very loud voice both of
                              those . . . why?

        [THE STATE]:          Your honor, it was –

        THE COURT:            Are you trying to influence the jury?

        [THE STATE]:          No, it was my understanding that in order for a warrant to
                              be issued for them they had to be called on the record –

        THE COURT:            You need to tell me this before hand.

        [THE STATE]:          Okay, I apologize –

                      *                       *                        *

        THE COURT:            That was done as a grandstand act. Alright, what witness
                              do you have that you can call and don’t do anymore of call
                              a phantom person that’s not here, call a person that’s here
                              and can testify.”

        {¶ 10} Later, it was revealed that although both mother and son had been served a

subpoena, they informed the detective that they would not testify. Appellant argues that in

referencing their comments to investigators, and by calling them to the stand, the assistant

prosecutor is guilty of misconduct.

        {¶ 11} The test for prosecutorial misconduct is whether the conduct is improper and, if

so, whether the accused's rights are materially prejudiced. See State v. Purdin, 4th Dist. Adams

No. 12CA944, 2013–Ohio–22, at ¶31; State v. Leonard, 4th Dist. Athens No. 08CA24,

2009–Ohio–6191, ¶36. The conduct of a prosecuting attorney during trial cannot be grounds for

error unless the conduct deprives the defendant of a fair trial. State v. Gest, 108 Ohio App.3d
ROSS, 15CA3505                                                                                     6

248, 257, 670 N.E.2d 536 (8th Dist.1995); State v. Givens, 4th Dist. Washington No. 07CA19,

2008–Ohio–1202, ¶28. Prosecutorial misconduct constitutes reversible error only in rare

instances. State v. Marcum, 4th Dist. Gallia No. 12CA6, 2013-Ohio- 5333, at ¶31; State v.

Edgington, 4th Dist. Ross No.       05CA2866, 2006–Ohio–3712, ¶18.          To begin, we are not

convinced the assistant prosecutor's actions constitute misconduct. He appeared to have a good

faith reason to call the witnesses (to get an arrest warrant for failure to appear) and, although the

trial court was suspicious that the State was attempting to influence the jury, the judge appeared

to be upset that the assistant prosecutor violated the court-room protocol. Generally, trial court

judges enjoy broad discretion to regulate the activities that transpire in their court-rooms. See

State v. Miller, 2nd Dist. Montgomery No. 15552, 1997 WL 674673 (Oct. 31, 1997).

        {¶ 12} After our review of the record, we are not convinced that this single incident

deprived appellant of a fair trial. Appellant cites no other arguable instances of misconduct,

except those that involve Nicole and Myra Perkins. The State presented evidence, both from

appellant's uncle and from Ross County Sheriff’s deputies, that he did not live at the address

where he was registered. We further note that despite being given an opportunity to comment

on what had occurred concerning Nicole and Myra Perkins, the defense declined to do so and did

not object.      In the case sub judice, we may reverse the appellant’s conviction only if the

alleged misconduct rose to the level of plain error. Prosecutorial misconduct rises to the level of

plain error if it is clear a defendant would not have been convicted in the absence of the improper

comments. State v. Conley, 4th Dist. Pike No. 08CA784, 2009-Ohio-1848, at ¶27; State v.

Olvera-Guillen, 12th Dist. Butler No. CA2007- 05-118, 2008-Ohio-5416, at ¶36; State v.

Rodgers, 11th Dist. Trumbull No.2007-T-3, 2008-Ohio-2757, at ¶44. Here, in view of Marvin
ROSS, 15CA3505                                                                                     7

Woodfork's testimony (that his nephew did not live with him at the address where he registered),

as well as investigating Ross County Sheriff’s deputies (that appellant was living at the

Massieville Road address without filing a change of address), we cannot conclude that appellant

would not have been convicted but for these alleged instances of prosecutorial misconduct.

        {¶ 13} Accordingly, we hereby overrule appellant's second assignment of error.

                                                 III

        {¶ 14} In his third assignment of error, appellant asserts that he received ineffective

assistance of counsel during the trial court proceedings. In particular, appellant asserts that trial

counsel was ineffective because he (1) stipulated to an essential element of the charged offense,

and (2) failed to move for mistrial after the alleged instance of prosecutorial misconduct.

        {¶ 15} The Sixth Amendment to the United States Constitution and Article I, Section 10

of the Ohio Constitution provides that defendants in all criminal proceedings shall have the

assistance of counsel for their defense. The United States Supreme Court has interpreted this

provision to mean that a criminal defendant is entitled to the effective assistance of counsel.

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

Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); also see State v. Creech,

188 Ohio App.3d 513, 2010-Ohio-2553, 936 N.E.2d 79, ¶ 39 (4th Dist.). Failure to provide

such assistance is a failure to comply with the state and federal constitutional safe-guards.

        {¶ 16} To establish constitutionally ineffective assistance of counsel, a defendant must

show that (1) his counsel's performance was deficient, and (2) the deficient performance

prejudiced the defense and deprived him of a fair trial. Strickland, 466 U.S. at 687; State v.

Powell, 132 Ohio St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶85.                 To show deficient
ROSS, 15CA3505                                                                                    8

performance, a defendant must prove that counsel's performance fell below an objective level of

reasonable representation. To show prejudice, a defendant must show a reasonable probability

exists that, but for counsel's errors, the result of the proceeding would have been different. State

v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶95 (citations omitted);

accord State v. Wesson, 137 Ohio St.3d 309, 2013–Ohio–4575, 999 N.E.2d 557, ¶81. Failure to

establish either element of this test is fatal to the claim. State v. Jones, 4th Dist. Scioto No.

06CA3116, 2008–Ohio–968, ¶14. Additionally, if one element is dispositive, a court need not

analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).

        {¶ 17} We have already ruled regarding appellant's first assignment of error that counsel's

stipulation that appellant had previously been convicted of unlawful sexual conduct with a minor

was not improper. No doubt exists that the State could have produced the evidence to establish

these facts. Moreover, even if the stipulation was indicative of ineffective assistance, that

stipulation was simply duplicative of other witness testimony. Thus, we fail to see how the

outcome of the proceedings would have been different.

        {¶ 18} With regard to what happened concerning the Perkins family, we point out that

the trial court declined to grant a continuance for the State so that the witnesses could be

apprehended and brought to court. Defense counsel may not have requested a mistrial thinking

that appellant stood a better chance with the evidence as it was, rather than allowing additional

time to bring Perkins into court to give testimony. Generally, reviewing courts will not question

legitimate trial tactics. See e.g. State v. Legg, 4th Dist. Pickaway No. 14CA23, 2016-Ohio-801,

at ¶64; State v. Trainer, 4th Dist. Pickaway No. 14CA21, 2015-Ohio-2548, at ¶9; State v.

Jazdzewski, 4th Dist. Washington No. 14CA15, 2015-Ohio- 2416, at ¶48.
ROSS, 15CA3505                                                                              9

        {¶ 19} For these reasons, we hereby overrule appellant's third assignment of error and

hereby affirm the trial court's judgment.

                                                          JUDGMENT AFFIRMED
ROSS, 15CA3505                                                                                   10

                                      JUDGMENT ENTRY

        It is ordered that the judgment be affirmed and appellee to recover of appellant the costs
herein taxed.

        The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.

        If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.

       The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

        Harsha, J. & Hoover, J.: Concur in Judgment & Opinion

                                                             For the Court




                                                             BY:
                                                             Peter B. Abele, Judge
ROSS, 15CA3505                                                                               11



                                  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.
