[Cite as State v. Lester, 2018-Ohio-3041.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 105992



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                             HOWARD LESTER

                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-17-613903-A

        BEFORE: Kilbane, P.J., Stewart, J., and Jones, J.

        RELEASED AND JOURNALIZED:                  August 2, 2018
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender
Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Eben McNair
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

       {¶1}   Defendant-appellant, Howard Lester (“Lester”), appeals his convictions for having

a weapon while under disability, criminal damaging, tampering with evidence, carrying a

concealed weapon, and improper handling of a firearm in a motor vehicle. For the reasons set

forth below, we affirm.

       {¶2}   In February 2017, Lester was charged in a 20-count indictment, along with the

following three codefendants:      his sister, Sonya Cammon (“Cammon”), Robert Shepard

(“Shepard”), and Vernell Jordan (“Jordan”).1     Lester was charged in 11 of those counts. The

charges against him included four counts of felonious assault (Counts 1-4), two counts of having

a weapon while under a disability (Counts 5 and 13), two counts of criminal damaging or

endangering with furthermore clauses alleging risk of physical harm (Counts 8 and 9), one count

of tampering with evidence (Count 10), one count of carrying a concealed weapon (Count 12),

and one count of improper handling of a firearm in a motor vehicle (Count 14).2           The charges

stem from incidents occurring on October 7, 2016 (victims James Jones (“Jones”) and Lauren

Campbell) and October 24, 2016.

       {¶3}   The matter proceeded to a jury trial with all four defendants tried together. The

following evidence was adduced at trial.3


       1
        This is a companion appeal with that of codefendant Cammon. See State v. Cammon, 8th
Dist. Cuyahoga No. 106056.
       2
         Several of the counts included forfeiture, firearm, prior conviction, and repeat violent
offender specifications.
       3
        The having a weapon while under disability charges were tried before the bench.
       {¶4}    On October 7, 2016, Jordan, Shepard, and Lester were involved in a shooting at

Visions Blu Lounge (“Visions Blu”) on Euclid Avenue in Cleveland. Cleveland Police Officer,

Demetrius Woods (“Officer Woods”) testified that around midnight, he noticed a few men

engaged in a loud discussion outside of Visions Blu. At the time, Woods was off duty and was

working security for Visions Blu. Woods approached the group of men and they all dispersed

except for one individual, Jones. Jones was upset about being robbed on a prior occasion, and

the involvement in that robbery by one of the males in the group. Officer Woods recognized

one of the males in the group as Lester. Based on what Jones said, Officer Woods believed

“something was going to take place” that night, so he wrote down the license plate number of a

black SUV used by the group that was parked outside Visions Blu. Woods identified Lester as

the driver of the black SUV.

       {¶5}    Approximately three hours later, Woods heard gunfire coming from the front of

Visions Blu. Woods ran to the front and observed people running. He also observed the same

black SUV race away from the scene. Woods testified it was the same SUV because he wrote

down the plate earlier that night, it was the only black SUV, and it had noticeable oversized

metallic rims. Woods found Jones lying on the ground behind a vehicle in a grassy lot near

Visions Blu.

       {¶6}    Jones testified that he got into a confrontation with Lester at Visions Blu. He

was upset with Lester because Lester was at the scene, on another occasion, when he was robbed

by two other individuals. Jones identified codefendants, Shepard and Jordan, as the other males

with Lester during his initial confrontation.   Jones testified that after the initial confrontation, he

left Visions Blu and later returned around 2:00 a.m. At that time, Jones was outside of the

establishment waiting for Lester to exit. He wanted to confront him about the robbery. He
observed Jordan and Shepard together, and Lester pulled up in his black SUV and exited his

vehicle. Jordan then pulled out a gun and started shooting at Jones. Shepard and Lester also

had guns. Jones testified that he could not see who else was shooting at him because he “was

trying to take cover from the gunshots, so I really didn’t see exactly who was shooting.       I just

know I heard a bunch of shots and then I got shot. I was shot [in both legs], so * * * I couldn’t

move no more.” Gunshots also damaged Jones’s car. Jones was taken to the hospital.

       {¶7}     Approximately two and a one-half weeks later, on October 24, 2016, Lester drove

Jordan to MetroHealth Hospital because Jordan had been shot. Cleveland Police Officer David

Price (“Officer Price”) and his partner responded to a dispatch call to MetroHealth Hospital to

speak with a witness to a shooting at a Cleveland Metropolitan Housing Association property.

The witness, later identified as Lester, was asked to sit in Officer Price’s zone car until a witness

statement could be taken. Lester was told that he was not under arrest and he was not put in

handcuffs.    Lester was sitting in the rear passenger side seat of the police car when codefendant

Cammon approached the window. Officer Price observed Lester hand his phone to Cammon

through the open window. Cammon held the phone in her hand for a minute before handing it

back to Lester, asking him to unlock it.   Lester took the phone back and then returned the phone

through the window, but also handed Cammon a black do-rag that was bunched up underneath

the phone. After observing this, Officer Price immediately exited his car and stopped Cammon.

 Officer Price asked Cammon what was under the phone. She then gave the phone and the

do-rag to Officer Price. Officer Price unwrapped the do-rag to find a small handgun (state’s

exhibit No. 14). Cammon was then arrested. While in the back of the zone car, Officer Price

and his partner checked and confirmed that Lester had an open warrant. The officers then

arrested him at that time.
       {¶8}     Kristin Koeth (“Koeth”), a scientific examiner with the City of Cleveland

Department of Public Safety — Division of Police, testified that the gun recovered by Officer

Price was a Ruger .380 (state’s exhibit No. 14).           Koeth further testified that the testing

performed on the gun revealed that it was operable and operates normally.          Koeth testified that

she did not personally test the Ruger for its operability.      The test results were sent to her by

someone else.

       {¶9}     At the conclusion of trial, the jury found Lester guilty of Count 9 (criminal

damaging or endangering with further finding that Lester created a risk of physical harm), Count

10 (tampering with evidence), Count 12 (carrying a concealed weapon) and Count 14 (improper

handling of a firearm in a motor vehicle). The trial court found Lester guilty of both Counts 5

and 13 (having a weapon while under disability). The jury found Lester not guilty on Counts

1-4 (felonious assault).4   The trial court sentenced Lester to a total of six years in prison.

       {¶10} Lester now appeals, raising the following six assignments of error for review,

which shall be discussed together where appropriate:

                                      Assignment of Error One

       The evidence is insufficient to support the guilty verdicts on Counts 5 and 9.
                                    Assignment of Error Two

       The guilty verdicts on Counts 5 and 9 are not supported by the manifest weight of
       the evidence.

                                     Assignment of Error Three

       The guilty verdicts on Counts 10, 12, 13, and 14 are not supported by the manifest
       weight of the evidence.



       The trial court granted Lester’s Crim.R. 29 motion with regard to Count 8 — criminal
       4

damaging or endangering.
                                    Assignment of Error Four

       The handgun at issue in Counts 10, 12, 13, and 14 is the fruit of an
       unconstitutional seizure and it should have been suppressed.

                                    Assignment of Error Five

       Evidence that the handgun at issue in Counts 12, 13, and 14 was operable was
       admitted in violation of the Confrontation Clause of the Sixth Amendment and
       Article I, Section 10, Ohio Constitution.

                                    Assignment of Error Six

       [Lester] was denied his right to effective assistance of counsel when his attorney
       (1) did not move to suppress state’s exhibit 14 as the fruit of an unconstitutional
       seizure, and (2) did not object to [Koeth’s] statement that state’s exhibit 14 was
       operable as violative of his rights under the confrontation clauses of the sixth
       amendment.

                                   Sufficiency of the Evidence

       {¶11} In the first assignment of error, Lester argues that there was insufficient evidence to

support his having a weapon while under disability (Count 5) and criminal damaging or

endangering charges (Count 9) as they relate to the incident involving Jones.

       {¶12} The test for sufficiency requires a determination whether the prosecution met its

burden of production at trial.         State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven

beyond a reasonable doubt.       State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶13} Lester argues that there is insufficient evidence to convict him of shooting at

Jones’s car because codefendants Shepard and Jordan were acquitted on Count 9 — criminal
damaging. As a result, he contends that he cannot be found guilty as an accomplice on the same

charge if there was no principal who committed the offense. In support of his argument, he

relies on State v. Perryman, 49 Ohio St.2d 14, 27, 358 N.E.2d 1040 (1976), for the proposition

that the state need only prove that a principal committed the offense.      Lester further contends

that he could not be convicted of Count 5 — having a weapon while under disability — if there is

insufficient evidence of him shooting at Jones’s car.

       {¶14} Lester was convicted of criminal damaging in violation of R.C. 2909.06(A)(1),

which provides that Lester knowingly caused or created a substantial risk of harm to Jones’s

vehicle without Jones’s consent. Under the complicity statute, “[n]o person, acting with the

kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in

committing the offense[.]” R.C. 2923.03(A)(2).

       {¶15} In State v. Graven, 52 Ohio St.2d 112, 369 N.E.2d 1205 (1977), the Ohio Supreme

Court considered whether there must be proof beyond a reasonable doubt that the principal

violated the statute when one is charged with aiding and abetting another.       In finding that the

principal does not need to be convicted in order to convict the aider and abettor, the court stated:

       The fact that the General Assembly intended to equate the prosecution and
       punishment of principals, aiders, abettors, and procurers is clear from R.C.
       2923.03(B), which provides that it is no defense to a charge of complicity that no
       person with whom the accused was in complicity has been convicted as a
       principal offender. R.C. 2923.03(A)(2) and (F) provide that one who aids and
       abets another in committing an offense is guilty of the crime of complicity, and
       may be prosecuted and punished as if he were the principal offender. State v.
       Bell (1976), 48 Ohio St.2d 270, 278. Aiding and abetting has been characterized
       as a substantive and independent offense so that aiders and abettors may be
       prosecuted and convicted as principals without the trial or conviction of the
       principal offender. Hartshorn v. State (1876), 29 Ohio St. 635.

Id. at 115-116.

       {¶16} In State v. Beehive Ltd. Partnership, 89 Ohio App.3d 718, 722-723, 627 N.E.2d
592 (8th Dist.1993), this court, relying on Graven, rejected the Beehive’s argument that its

convictions were improper under complicity grounds since neither of the two individuals charged

with the same offenses were convicted. This court stated:

        In this context, R.C. 2923.03(B) specifically recognizes the acquittal of one
        participant of a criminal offense does not affect the prosecution of an accomplice
        as follows:

        “It is no defense to a charge under this section that no person with whom the
        accused was in complicity has been convicted as a principal offender.” See
        [Graven, 52 Ohio St.2d 112, 369 N.E.2d 1205].

        We note that even if [the defendant] had properly preserved and raised this claim

        in the trial court, [the defendant] has failed to demonstrate the trial court erred by

        refusing to enter a judgment of acquittal in its favor on the three charges due to

        the insufficiency of the evidence.

Id. at 723.

        {¶17} In the instant case, a review of the record reveals that Jones had a confrontation

with Lester earlier in the evening at Visions Blu.    Jones testified that Lester was present when

he was robbed on a previous occasion. Around closing time, Jones was approached by two

males, who were shooting at him. He also observed Lester approach him with a gun. In

addition, Officer Woods identified Lester as the driver of a black SUV that sped away after the

shooting.     While Lester may not have actually shot his gun at Jones, the foregoing is sufficient

evidence to convict Lester of criminal damaging or endangering under an accomplice liability

theory. Because Lester had a gun, there is also sufficient evidence to convict Lester of having a

weapon while under a disability.

        {¶18} Therefore, the first assignment of error is overruled.

                                  Manifest Weight of the Evidence
       {¶19} In the second assignment of error, Lester argues that his convictions for having a

weapon while under disability (Count 5) and criminal damaging or endangering (Count 9) are

against the manifest weight of the evidence. In the third assignment of error, Lester argues that

his convictions for tampering with evidence (Count 10), carrying a concealed weapon (Count

12), having a weapon while under disability (Count 13), and improperly handling a firearm in a

motor vehicle (Count 14) are against the manifest weight of the evidence.

       {¶20} In contrast to sufficiency, “weight of the evidence involves the inclination of the

greater amount of credible evidence.”        State v. Thompkins, 78 Ohio St.3d 380, 386,

1997-Ohio-52, 678 N.E.2d 541.       In a manifest weight analysis, the reviewing court must

consider all the evidence in the record, the reasonable inferences, and the credibility of the

witnesses to determine “‘whether in resolving conflicts in the evidence, the jury clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485

N.E.2d 717 (1st Dist.1983).

       {¶21} In the present case, with regard to the incident on October 7, 2016, the trier of fact

heard testimony through Jones and Officer Woods that Lester was present during the shooting

and had a gun.

       {¶22} With regard to the October 24, 2016 incident, the trier of fact heard testimony from

Officer Price that Lester was sitting in the rear passenger side seat of his police cruiser when

Cammon approached the window. Officer Price observed Lester hand his phone to Cammon

through the open window. Before handing the phone back to Lester, Cammon asked him to

unlock it. Lester took the phone back and then returned the phone through the window, but also

handed a black do-rag that was bunched up underneath the phone. After observing this, Officer
Price exited his cruiser and stopped Cammon. Officer Price asked Cammon what was under the

phone. Cammon then gave the phone and the do-rag to Officer Price. A small handgun was

wrapped in the do-rag.

        {¶23} When considering this evidence, the reasonable inferences, and the credibility of

the witnesses, we cannot say the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the convictions must be reversed and a new trial ordered.

        {¶24} Accordingly, the second and third assignments of error are overruled.

                  Ineffective Assistance of Counsel — Unconstitutional Seizure

        {¶25} In the sixth assignment of error, Lester argues defense counsel was ineffective for

failing to move to suppress the gun discovered by Officer Price (state’s exhibit No. 14). In the

fourth assignment of error, Lester argues that the handgun Officer Price discovered on October

24, 2016, is the fruit of an unconstitutional seizure and should have been suppressed.

        {¶26} In claiming ineffective assistance of counsel, Lester must demonstrate both that

counsel’s performance was deficient (counsel’s performance fell below an objective standard of

reasonableness) and that counsel’s deficiency prejudiced him (counsel’s errors were so serious as

to deprive the defendant of a fair trial).   Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

        {¶27} In deciding an ineffectiveness claim, the court must determine whether, in light of

all the circumstances, the identified acts or omissions were outside the wide range of

professionally competent assistance. Strickland at 690.       Lester must demonstrate that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different. Id. at 694.

        {¶28} With regard to establishing an ineffective assistance of counsel claim for failure to
file a motion to suppress, the defendant must prove that there was a basis to suppress the

evidence in question.   State. v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶

35, citing State v. Tibbetts, 92 Ohio St.3d 146, 165-166, 2001-Ohio-132, 749 N.E.2d 226 (where

the record contains no evidence justifying a motion to suppress, the defendant has not met his

burden of proving that his attorney violated an essential duty by failing to file the motion).

       {¶29} Lester contends he was under arrest because he submitted to the authority of the

police as stated in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690

(1991). A person is seized, within the meaning of the Fourth Amendment, “‘only if, in view of

all the circumstances surrounding the incident, a reasonable person would have believed that he

[or she] was not free to leave.’” Id., quoting United States v. Mendenhall, 446 U.S. 544, 554,

100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

       {¶30} In the instant case, Lester was identified as a witness to a shooting.    He was asked

to sit in Officer Price’s police cruiser until a witness statement could be taken.     Officer Price

told Lester that he was not under arrest, and there is no record of Officer Price searching Lester

prior to entering the cruiser. Lester was not handcuffed, and the back window of the cruiser

remained open, per Lester’s request. Lester was able to speak with Cammon and voluntarily

handed her his phone through the window.            Under the totality of these circumstances, a

reasonable person would not believe he or she was under arrest. Because Lester was not under

arrest at the time Officer Price discovered the gun, trial counsel’s decision to not move to

suppress state’s exhibit No. 14 does not fall below the objective standard of reasonableness.

       {¶31} Therefore, the sixth assignment of error is overruled with regard to defense counsel

failing to move to suppress and the fourth assignment of error is overruled.

                    Ineffective Assistance of Counsel — Confrontation Clause
       {¶32} In the sixth assignment of error, Lester additionally argues defense counsel was

ineffective for failing to object to Koeth’s testimony that the gun (state’s exhibit No. 14) was

operable, which is an element of the offenses in Counts 12-14 (carrying a concealed weapon,

having a weapon under disability, and improperly handling a firearm in a motor vehicle). In the

fifth assignment of error, Lester argues that Koeth’s testimony that the gun was operable was

evidence of testimonial hearsay in violation of the Confrontation Clause as set forth in Crawford

v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Specifically, he refers to

Koeth’s testimony that the testing performed on the Ruger .380 (state’s exhibit No. 14) revealed

that it was operable and operated normally.     Koeth testified that she did not personally test the

Ruger for its operability.   The test results were sent to her by someone else.   Lester contends if

defense counsel would have objected to this testimony, it would have been ruled inadmissible

and Lester would have been acquitted of the Counts 12-14.

       {¶33} The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against

him[.]” The United States Supreme Court has interpreted this to mean that the admission of an

out-of-court statement of a witness who does not appear at trial is prohibited by the

Confrontation Clause if the statement is testimonial, unless the witness is unavailable and the

defendant had a prior opportunity to cross-examine the witness.    Washington at 53-54.

       {¶34} In Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012),

however, the United Supreme Court found that “[o]ut-of-court statements that are related by the

expert solely for the purpose of explaining the assumptions on which that opinion rests are not

offered for their truth and thus fall outside the scope of the Confrontation Clause.” Id. at 58.

       {¶35} Here, Koeth was accepted as an expert witness with no objection by Lester.
Koeth’s conclusion that the .380 Ruger was operable and functioned normally was based on test

results sent to her by someone else. Applying Williams to the instant case, Koeth’s testimony

does not violate the Confrontation Clause and is admissible. Instead of objecting to Koeth’s

testimony, defense counsel cross-examined Koeth, attempting to attack her credibility. Defense

counsel asked:

       [DEFENSE COUNSEL]:             Ma’am, did you test fire any of these weapons?

       KOETH: No. I did not test fire these firearms.

       [DEFENSE COUNSEL]:            Someone else did that and it was sent to you later?

       KOETH: Yes.

       {¶36} Because Koeth’s testimony was admissible, defense counsel’s chosen strategy, in

the instant case, is not sufficient grounds for ineffective assistance of counsel.

       {¶37} Therefore, the sixth assignment of error is overruled with regard to defense counsel

failing to object Koeth’s testimony and the fifth assignment of error is overruled.

       {¶38} Judgment is 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. The defendant’s convictions having been affirmed,

any bail pending appeal is terminated.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE

MELODY J. STEWART, J., and
LARRY A. JONES, SR., J., CONCUR
