[Cite as State v. Jones, 2018-Ohio-4049.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
KALEONTE A. JONES                            :       Case No. CT2017-0072
                                             :
        Defendant-Appellant                  :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. CT2017-0072




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    October 02, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

D. MICHAEL HADDOX                                    ERIC J. ALLEN
Prosecuting Attorney                                 4605 Morse Road
By: GERALD V. ANDERSON, II                           Suite 201
Assistant Prosecuting Attorney                       Gahanna, OH 43230
27 North Fifth Street
P. O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2017-0072                                                   2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant Kaleonte A. Jones appeals the sentence of conviction

and sentence of the Court of Common Pleas of Muskingum County, Ohio. Plaintiff-

Appellee is the State of Ohio.

                            FACTS AND PROCEDURAL HISTORY

       {¶ 2} On December 17, 2015 a shooting occurred on Corwin Avenue in

Zanesville, Ohio. At the scene, police recovered two .40 caliber shell casings. The

following day, an 11-year-old girl found a loaded Smith & Wesson firearm in a sandbox

about 150 feet from where the shooting took place. The shell casings found at the scene

were later confirmed to have been shot from the Smith & Wesson. Further investigation

revealed appellant and a co-defendant were involved in the shooting and that the weapon

belonged to appellant. Appellant confessed to the crime and his DNA was found on the

trigger of the gun.

       {¶ 3} In November 2016, appellant was indicted on one count each of attempted

murder in violation of R.C. 2923.02(A) and R.C. 2903.02(A), felonious assault in violation

of R.C. 2903.11(A)(2), and tampering with evidence in violation of R.C. 2921.12(A)(1).

Each of these charges included a firearm specification and a gang specification. Appellant

was further charged with one count of participating in a criminal gang in violation of R.C.

2923.42(A) and one count of having weapons under disability in violation of R.C.

2923.12(A)(2).

       {¶ 4} In January 2017, per a plea agreement with the state, appellant entered

guilty pleas to the charges of felonious assault, having a weapon under disability and one

firearm specification.
Muskingum County, Case No. CT2017-0072                                                     3


       {¶ 5} In June 2017, the state filed a motion to set aside appellant's plea and

reinstate the charges as appellant failed to cooperate with the state per their plea

agreement. The trial court granted the motion and the matter proceeded to a jury trial on

August 15, 2017. During trial, Detective Smittle testified regarding street gangs in the

Columbus Ohio area. He testified that during an interview with appellant, he asked

appellant if he was a member of one particular area gang "Bomb Squad." Appellant

corrected the detective, advising him he was a member of "Banger Squad." Appellant did

not object to any of this testimony.

       {¶ 6} During Smittle's testimony photos were admitted of known gang members,

appellant flashing gang hand signs and holding guns. Appellant objected on the basis

that photos were cumulative. The trial court directed the state to limit the number of photos

shown of any one individual. Appellant did not further object.

       {¶ 7} After hearing all the evidence and deliberating, the jury returned a verdict of

guilty of attempted murder, felonious assault, and tampering with evidence, all with the

attendant firearm specifications, and having a weapon under disability. The jury acquitted

appellant of participating in a criminal gang as well as each gang specification. He was

subsequently sentenced to an aggregate total of 18 years incarceration.

       {¶ 8} This appeal followed, and the matter is now before this court for

consideration. Appellant raises one assignment of error:

                                                 I

       {¶ 9} "IT IS STRUCTURAL ERROR TO DEPRIVE THE APPELLANT HIS

PRESUMPTION OF INNOCENCE BY ALLOWING A WITNESS TO TESTIFY

REGARDING PRIOR CONVICTIONS."
Muskingum County, Case No. CT2017-0072                                                  4


      {¶ 10} In his sole assignment of error, appellant takes issue with a portion

Detective Smittle's testimony and photographs introduced by the state during the

detective's testimony. First appellant cites the portion of Detective Smittle's testimony

wherein he testified that appellant told the detective he was a member of "Banger Squad."

Second, appellant appears to argue an excessive number of photos were presented of

appellant flashing gang signs and holding guns.         Appellant argues the detective's

testimony, evidence of past convictions, and presentation of the photos violated his

presumption of innocence, and amounts to structural error. We disagree.

          {¶ 11}    First, as for the appropriate standard of review, the Supreme Court

of Ohio stated in State v. Wamsley, 117 Ohio St.3d 388, 391-92, 2008-Ohio-1195, 884

N.E.2d 45:



             We have previously held that “ ‘if the defendant had counsel and was

             tried by an impartial adjudicator, there is a strong presumption that

             any other constitutiona[l] errors that may have occurred are subject

             to harmless-error analysis.’ ” State v. Hill (2001), 92 Ohio St.3d 191,

             197, 749 N.E.2d 274, quoting Rose v. Clark (1986), 478 U.S. 570,

             579, 106 S.Ct. 3101, 92 L.Ed.2d 460. Moreover, as we stated in

             State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643,

             “[c]onsistent with the presumption that errors are not ‘structural,’ the

             United States Supreme Court ‘ha[s] found an error to be “structural,”

             and thus subject to automatic reversal, only in a “very limited class

             of cases.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct.
Muskingum County, Case No. CT2017-0072                                                  5

             1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S.

             335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of

             counsel)); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749

             (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106

             S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection

             of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79

             L.Ed.2d 122 (1984) (denial of self-representation at trial); Waller v.

             Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial

             of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078,

             124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction).’ ”

             Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 18,

             quoting Neder v. United States (1999), 527 U.S. 1, 8, 119 S.Ct. 1827,

             144 L.Ed.2d 35.



      {¶ 12} A “structural error” analysis only supplies an automatic finding of prejudice

for preserved errors thereby avoiding harmless error analysis. It does not supply an

automatic finding of plain error for unpreserved errors. Wamsley supra citing State v.

Rector, Carroll App. No. 01AP-758, 2003-Ohio-5438. The Supreme Court of Ohio

addressed when structural error analysis should be used in State v. Perry, 101 Ohio St.3d

118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 23:



             We emphasize that both this court and the United States Supreme

             Court have cautioned against applying a structural-error analysis
Muskingum County, Case No. CT2017-0072                                                         6


              where, as here, the case would be otherwise governed by Crim.R.

              52(B) because the defendant did not raise the error in the trial court.

              See Hill, 92 Ohio St.3d at 199, 749 N.E.2d 274; Johnson, 520 U.S.

              at 466, 117 S.Ct. 1544, 137 L.Ed.2d 718. This caution is born of

              sound policy. For to hold that an error is structural even when the

              defendant does not bring the error to the attention of the trial court

              would be to encourage defendants to remain silent at trial only later

              to raise the error on appeal where the conviction would be

              automatically reversed. We believe that our holdings should foster

              rather than thwart judicial economy by providing incentives (and not

              disincentives) for the defendant to raise all errors in the trial court-

              where, in many cases, such errors can be easily corrected.



       {¶ 13} Here, appellant did not object to Detective Smittle's testimony regarding

gang affiliation. He therefore bears the burden of demonstrating that a plain error affected

his substantial rights and, in addition that the error seriously affected the fairness, integrity

or public reputation of judicial proceedings. United States v. Olano, 507 U.S. at 725,734,

113 S.Ct. 1770 (1993); State v. Perry, 101 Ohio St.3d 118, 120, 802 N.E.2d 643 (2004).

Even if the defendant satisfies this burden, an appellate court has discretion to disregard

the error. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); State v. Long,

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

at 118, 802 N.E.2d at 646.
Muskingum County, Case No. CT2017-0072                                                    7


       {¶ 14} As for the photos, the admission or exclusion of evidence rests within the

sound discretion of the trial court. In order to find an abuse of discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983).

       {¶ 15} Relevant evidence is “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Evid.R. 401. Generally, all relevant

evidence is admissible, and irrelevant evidence is inadmissible. Evid.R. 402.

       {¶ 16} Otherwise relevant evidence is inadmissible, however, "if its probative value

is substantially outweighed by the danger of unfair prejudice, of confusion of the issues,

or of misleading the jury." Evid.R. 403(A). A trial court has broad discretion to determine

whether relevant evidence must be excluded in accordance with Evid.R. 403(A) because

"the exclusion of relevant evidence under Evid.R. 403(A) is even more of a judgment call

than determining whether the evidence has logical relevance in the first place." State v.

Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 40.

       {¶ 17} As to Detective Smittle's testimony that appellant admitted to being a

member of "Banger Squad," appellant failed to object, and has therefore waived all but

plain error. Appellant was charged with participating in a criminal gang and several gang

specifications. The detective's testimony was therefore relevant to prove the charge as

well as the gang specifications. Appellant has failed to raise or argue plain error. Even if

he had, however, the argument would fail as appellant cannot show prejudice – he was
Muskingum County, Case No. CT2017-0072                                                      8


acquitted of participation in a criminal gang, as well as each gang specification. We

therefore find no error, plain or otherwise.

       {¶ 18} As to the photos, appellant did object to the cumulative nature. In response,

the trial court directed the state to limit the number of photos it introduced, and the state

complied. Transcript of Trial (T) 196-197. Appellant did not further object during Detective

Smittle's testimony, nor at the conclusion of the state's case when the state moved to

admit the photos into evidence. T 362. During his testimony, the detective identified in the

photos appellant with known gang members, appellant flashing gang hand signs, and

appellant's gang tattoos. T 186-195, 197-198. The photos, like appellant's admission to

gang affiliation, were relevant to the charge of participation in a criminal gang as well as

the gang specifications. We therefore find no abuse of discretion in the admission of the

photographs.

       {¶ 19} Finally, we note appellant's brief contains a section titled "Evidence of

Defendant's Past Convictions." Under this section appellant baldly states "this testimony"

put at issue appellant's past convictions and removed the presumption of innocence.

Appellant's brief at 6. Appellant provides no transcript reference for this alleged testimony,

nor does he indicate what the alleged testimony consisted of. It is impossible to determine

whether appellant is referring to the previously discussed gang affiliation statement of

Detective Smittle, the photographs, or something else. Appellant has thereby failed to

comply with App.R. 16(D) which states:



               (D) References in Briefs to the Record. References in the briefs to

               parts of the record shall be to the pages of the parts of the record
Muskingum County, Case No. CT2017-0072                                                       9


              involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p.

              231. Intelligible abbreviations may be used. If reference is made to

              evidence, the admissibility of which is in controversy, reference shall

              be made to the pages of the transcript at which the evidence was

              identified, offered, and received or rejected.



       {¶ 20} “It is the duty of the appellant, not this court, to demonstrate [his] assigned

error through an argument that is supported by citations to legal authority and facts in the

record.” State v. Taylor, 9th Dist. Medina No. 2783-M, 1999WL61619 at *3 (Feb. 9, 1999),

App.R. 16(A)(7). “It is not the function of this court to construct a foundation for [an

appellant's] claims; failure to comply with the rules governing practice in the appellate

courts is a tactic which is ordinarily fatal.” Kremer v. Cox, 114 Ohio App.3d 41, 60, 682

N.E.2d 1006 (1996).

       {¶ 21} The federal courts have discussed the problems resulting when a party

omits important information in its appellate brief noting; “[c]ourts are entitled to assistance

from counsel, and an invitation to search without guidance is no more useful than a

litigant's request to a district court at the summary judgment stage to paw through the

assembled discovery material. ‘Judges are not like pigs, hunting for truffles buried in the

record.’ ” Albrechtson v. Bd. Of Regents (C.A.7, 2002), 309 F.2d 433, quoting United

State v. Dunkel (C.A.7, 1991), 927, 955, 956. The Supreme Court of Ohio, in State ex rel.

Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108

Ohio St.3d 288, 843 N.E.2d 174, 2006-Ohio-903, at ¶ 13; has also noted:
Muskingum County, Case No. CT2017-0072                                                   10


              The omission of page references to the relevant portions of the

              record that support the brief's factual assertions is most troubling.

              Appellate attorneys should not expect the court "to peruse the record

              without the help of pinpoint citations" to the record. Day v. N. Indiana

              Pub. Serv. Corp. (C.A.7, 1999), 164 F.3d 382, 384 (imposing a public

              reprimand and a $500 fine on an attorney for repeated

              noncompliance with court rules). In the absence of the page

              references that S.Ct. Prac.R. VI(2)(B)(3) requires, the court is forced

              to spend much more time hunting through the record to confirm even

              the most minor factual details to decide the case and prepare an

              opinion. That burden ought to fall on the parties rather than the court,

              for the parties are presumably familiar with the record and should be

              able to readily identify in their briefs where each relevant fact can be

              verified.



       {¶ 22} Because appellant's argument regarding "prior convictions" fails in this

regard, the alleged error is overruled.
Muskingum County, Case No. CT2017-0072                                           11


      {¶ 23} The judgment of conviction and sentence of the Court of Common Pleas of

Muskingum County is affirmed.



By Wise, Earle, J.

Hoffman, P.J. and

Baldwin, J. concur.


EEW/rw 910
