[Cite as State v. Primus, 2011-Ohio-5497.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96191




                                       STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    GILBERT PRIMUS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                               Cuyahoga County Common Pleas Court
                                      Case No. CR-535498

        BEFORE: E. Gallagher, J., Kilbane, A.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                     October 27, 2011
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ATTORNEYS FOR APPELLANT

Bret Jordan
Lindner, Sidoti, Jordan LLP
2077 East 4th St., 2nd Floor
Cleveland, Ohio 44115

Edward M. Graham
13363 Madison Avenue
Lakewood, Ohio 44107


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Brian S. Deckert
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

       {¶ 1} Defendant-appellant, Gilbert Primus, appeals his convictions entered in the

Cuyahoga County Court of Common Pleas. Appellant argues that he was denied his

right to effective assistance of counsel at trial and that his right to a fair trial was

infringed due to cumulative plain errors by the trial court. For the following reasons, we

affirm the judgment of the trial court.
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          {¶ 2} Appellant was indicted on March 26, 2010 and charged with three counts

of felonious assault in violation of R.C. 2903.11(A)(2) (Counts 1, 10, and 11), three

counts of failure to comply in violation of R.C. 2921.331(B) (Counts 2, 3, and 12),

attempted felonious assault in violation of R.C. 2923.02 and R.C. 2903.11(A)(1) (Count

4), assault in violation of 2903.13(A) (Count 5), two counts of aggravated robbery in

violation of R.C. 2911.01(B)(1) and R.C. 2911.01(A)(3) (Counts 6 and 7, respectively),

robbery in violation of R.C. 2911.02(A)(2) (Count 8), kidnapping in violation of R.C.

2905.01(B)(1) (Count 9), two counts of theft in violation of R.C. 2913.02(A)(1) and R.C.

2913.02(A)(2) (Counts 13 and 14, respectively), having weapons under disability in

violation of R.C. 2923.13(A)(3) (Count 15), improperly handling firearms in a motor

vehicle in violation of R.C. 2923.16(B) (Count 16), carrying a concealed weapon in

violation of R.C. 2923.12(A)(2) (Count 17), and possessing criminal tools in violation of

R.C. 2923.24(A) (Count 18).

          {¶ 3} Appellant pled not guilty to the indictment and the case proceeded to trial

on October 21, 2010. Prior to trial the state dismissed counts 4, 8, 9, 10, 11, 12, 14, 16,

and 17.1

          {¶ 4} It was the state’s evidence at trial that on March 8, 2010, an employee of


      The trial court renumbered the remaining counts for the purposes of trial.
      1

Count 5 became Count 4; Count 6 became Count 5; Count 7 became count 6; Count
13 became Count 7; Count 15 became Count 9; Count 18 became Count 8.
Renumbered Count 9 (having weapons under disability) was tried to the bench.
The remaining counts were tried to the jury.
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Giant Eagle on West 117th Street in Cuyahoga County, observed an unknown male

exiting the store with a shopping cart loaded with meat. Suspecting that this individual

was attempting to steal the merchandise, the employee notified store security.

Cuyahoga County Deputy Sheriff Landry Simmons was working as a security guard at

the store at the time and responded to the request for security. In the store’s parking lot

near a Pontiac van, Deputy Simmons confronted a man wearing a red hat with a

shopping cart full of meat, identified himself, and ordered the man to stop and return the

merchandise.

          {¶ 5} The man fled on foot and Deputy Simmons returned to the van and

observed the cart of food inside of the van.2    The van began to move and struck Deputy

Simmons on his right leg and knee. Deputy Simmons testified that he became entangled

with a latch on an open passenger door of the moving van and had to pull himself inside

the vehicle to avoid being run over. Once inside, Deputy Simmons ordered the driver to

stop the vehicle. Deputy Simmons made an in-court identification of defendant Gilbert

Primus as the driver of the van.

          {¶ 6} Deputy Simmons testified that he and the appellant engaged in a struggle

inside the vehicle. Deputy Simmons felt a metal object under the appellant’s clothing

that he believed to be a gun. The appellant reached for the object and Deputy Simmons

      2
        The trial testimony of Deputy Simmons was at times convoluted. It is
unclear from Deputy Simmons’s testimony how the food cart came to be inside the
van during the incident.
                                            5

struggled with the appellant until both men fell out of the driver’s side door of the

vehicle. On the ground, Deputy Simmons attempted to arrest the appellant and the two

continued to fight. Deputy Simmons testified that the appellant tried to grab his firearm

during the struggle. Eventually the appellant broke free of Deputy Simmons by slipping

free of and discarding the jacket he was wearing. Appellant fled in the van leaving

behind his jacket. Deputy Simmons testified that while fleeing, appellant stopped the

van and extended his arm while holding a black object outside the driver’s side window

that the deputy believed to be a gun. Deputy Simmons responded by firing two shots

from his own gun, at least one of which he believed struck the vehicle near the driver’s

side window.

       {¶ 7} Appellant was identified by police through a cell phone recovered from the

jacket and through a photo array identification by Deputy Simmons. Appellant’s DNA

was found to be consistent with DNA swabs obtained from the jacket and a hat that

Deputy Simmons identified as the hat worn by appellant at the time of their struggle.

Police learned that a van titled to appellant was transferred to a third party on March 10,

2010. The van was found to have a bullet hole covered with a decorative strip decal and

electrician’s tape. Also recovered from inside the van was paperwork and a pill bottle

with appellant’s name on the label.

       {¶ 8} The jury returned a verdict of guilty as to counts 1, 2, 3, 5, 6, 7, 13, and 18.

 The court found appellant not guilty on Count 9. Appellant was sentenced to five years
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in prison. Appellant brought the present appeal, advancing two assignments of error.

       {¶ 9} Appellant’s first assignment of error states:

       “Appellant was denied his right to effective assistance of counsel at trial, in
       violation of the Fifth, Sixth, and Fourteenth Amendments to the United States
       Constitution and Article 1, Section 10 of the Ohio Constitution.”

       {¶ 10} In order to substantiate a claim of ineffective assistance of counsel,

appellant is required to demonstrate that: (1) the performance of defense counsel was

seriously flawed and deficient; and (2) the result of his trial or legal proceeding would

have been different had defense counsel provided proper representation. Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, paragraph two of the

syllabus; State v. Brooks (1986), 25 Ohio St.3d 144, 147, 495 N.E.2d 407. Judicial

scrutiny of defense counsel’s performance must be highly deferential. Strickland, supra,

466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. In Ohio, there is a presumption that a

properly licensed attorney is competent. State v. Smith (1985), 17 Ohio St.3d 98, 100,

477 N.E.2d 1128, citing Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301, 209 31

O.O.2d 567, N.E.2d 164.       An appellant bears the burden of proving his claim of

ineffective assistance of counsel. Id.

       {¶ 11} Initially, the defendant must show that counsel’s performance was

deficient. To meet that requirement, the defendant must show counsel’s error was so

serious that counsel was not functioning as the “counsel” guaranteed by the Sixth

Amendment. The defendant may prove counsel’s conduct was deficient by identifying
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acts or omissions that were not the result of reasonable professional judgment. The court

must then determine whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.

Strickland, supra, 466 U.S. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674.

       {¶ 12} Next, if the defendant successfully proves that counsel’s assistance was

ineffective, the second prong of the Strickland test requires the defendant to prove

prejudice in order to prevail. Id. at 692. To meet that prong, the defendant must show

that counsel’s errors were so serious as to deprive him of a fair trial, a trial whose result

is reliable. Id. at 687. A defendant meets this standard with a showing “that there is a

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

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

       {¶ 13} Appellant argues that his counsel was deficient for failing to request that a

juror be removed from the panel, failing to object to the introduction of the name of the

drug on the recovered pill bottle, and failing to move for a mistrial for the same reason.

       {¶ 14} R.C. 2313.42 states in relevant part that:

       “The following are good causes for challenge to any person called as a juror: * * *
       (J) That he discloses by his answers that he cannot be a fair and impartial juror or
       will not follow the law as given to him by the court.”

       {¶ 15} R.C. 2945.25 states in relevant part:

       “A person called as a juror in a criminal case may be challenged for the following
       causes: * * * (B) That he is possessed of a state of mind evincing enmity or bias
                                            8

       toward the defendant or the state; but no person summoned as a juror shall be
       disqualified by reason of a previously formed or expressed opinion with reference
       to the guilt or innocence of the accused, if the court is satisfied, from examination
       of the juror or from other evidence, that he will render an impartial verdict
       according to the law and the evidence submitted to the jury at the trial; * * *.”

       {¶ 16} As long as a trial court is satisfied, following additional questioning of the

prospective juror, that the juror can be fair and impartial and follow the law as instructed,

the court need not remove that juror for cause. State v. Moss, Summit App. No. 24511,

2009-Ohio-3866, at ¶11, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559

N.E.2d 1301; State v. Bryan, 101 Ohio St.3d 272, 285-286, 2004-Ohio-971, 804 N.E.2d

433.

       {¶ 17} In the present case, juror number 7 brought to the court’s attention the fact

that Deputy Simmons had shopped in the juror’s clothing store approximately two weeks

prior to the trial. The juror conversed with Deputy Simmons in his role as a salesman

for ten to 15 minutes. The trial court and counsel voir dired the juror on the interaction

and the juror indicated that the prior interaction did not leave him biased in any way or

more likely to believe Deputy Simmons’s testimony.              Satisfied with the juror’s

responses, the trial court allowed him to remain on the panel and neither party objected.

       {¶ 18} Upon review of the transcript of the voir dire examination, it is clear that

juror number 7 was capable of rendering an impartial verdict according to the law and

the evidence. There being no basis for disqualification of the juror for cause, trial

counsel’s failure to so move did not deny the defendant effective assistance of counsel.
                                           9

State v. Cope (Feb. 17, 1988), Summit App. No. 13213, (Further holding that trial

counsel’s choice not to use a pre-emptory challenge is within the realm of trial tactics

and does not, absent a showing of prejudice, deny defendant effective assistance of

counsel.); State v. Collins, Lucas App. No. L-05-1399, 2007-Ohio-3578, at ¶72; State

v. Vrabel, Mahoning App. No. 95 CA 221. “[C]ounsel will not be deemed ineffective

for failing to make a meritless objection.” State v. Copley, Franklin App. No.

04AP-1128, 2006-Ohio-2737, ¶48, citing State v. Shahan, Washington App. No.

02CA63, 2003-Ohio-6495, at ¶38.

       {¶ 19} Appellant also argues that his counsel was ineffective for failing to object

when a witness for the State read the name of the drug on the recovered pill bottle,

Geodon, into evidence and failing to move for a mistrial on the same basis. Juror

number 6 brought to the attention of the trial court the fact that he was a physician, that

he had worked with many schizophrenic patients and he recognized the drug Geodon as

a drug commonly used to treat depression with psychotic features or schizophrenia. The

trial court voir dired juror number 6 on this issue and he indicated that this specific

knowledge might impact his deliberations. He also related that he was concerned that

other jurors, knowing that he was a physician, might ask him about the drug. Counsel

for appellant moved for juror number 6 to be removed for cause and the trial court

granted the motion without objection from the appellee.

       {¶ 20} In considering a claim of ineffective assistance of counsel, an appellate
                                           10

court need not examine counsel’s performance if the defendant fails to prove the second

prong of prejudicial effect. State v. Bradley (1989), 42 Ohio St.3d 136, 143, 538 N.E.2d

373. “The object of an ineffectiveness claim is not to grade counsel’s performance.” Id.

       {¶ 21} Even if we assume that appellant’s counsel performed deficiently by

failing to object to the mention of Geodon, appellant has not established that he was

prejudiced in any manner. Courts may not simply assume the existence of prejudice, but

must require that prejudice be affirmatively demonstrated. See State v. Clark, Pike App.

No. 02CA684, 2003-Ohio-1707, at ¶22; State v. Tucker, Ross App. No. 01CA2592,

2002-Ohio-1597. There is no indication in the record that appellant suffered any

prejudice as a result of counsel’s failure to object to the Geodon testimony or move for a

mistrial on the same basis. A juror with specialized medical knowledge indicated that

Geodon was not a commonly known medication but rather a drug known to him due to

his niche experience in psychiatric medicine.         Furthermore, while the juror was

concerned of the possibility that other jurors might ask him about the drug, the record is

clear that none of the jurors had done so prior to the juror bringing the issue to the trial

court’s attention.   Finally, trial court explicitly instructed the excused juror not to

discuss the matter with his fellow jurors and the juror acknowledged the importance of

the trial court’s mandate.

       {¶ 22} Appellant has failed to demonstrate that prejudice resulted to the extent

that the outcome at trial clearly would have been different. Ineffective assistance of
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counsel has not been demonstrated.

       {¶ 23} Appellant’s first assignment of error is overruled.

       {¶ 24} Appellant’s second assignment of error states:

       “The court committed plain error when it failed to remedy multiple irregularities
       in the trial that, taken as a whole, deprived appellant of a fair trial.”

       {¶ 25} Appellant argues that the trial court erred by allowing juror number 7 to

remain on the panel despite his prior interaction with Deputy Simmons and by allowing

the introduction of the drug name Geodon into evidence. Appellant failed to object to

the trial court’s decision to allow juror number 7 to remain on the panel and failed to

object to the introduction of the term “Geodon” at trial, thus waiving all but plain error.

State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677, at ¶10, citing State v.

Childs (1968), 14 Ohio St.2d 56, 263 N.E.2d 545.

       {¶ 26} To constitute plain error, the error must be obvious on the record, palpable,

and fundamental, so that it should have been apparent to the trial court without objection.

 See State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16. Moreover,

plain error does not exist unless the appellant establishes that the outcome of the trial

clearly would have been different but for the trial court’s allegedly improper actions.

State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043. Notice of plain error

is to be taken with utmost caution, under exceptional circumstances, and only to prevent

a manifest miscarriage of justice.         State v. Phillips, 74 Ohio St.3d 72, 83,

1995-Ohio-171, 656 N.E.2d 643.
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       {¶ 27} Appellant is unable to demonstrate plain error in the present case because

he cannot demonstrate that he was prejudiced, in any manner, by the above claimed

errors. The record is devoid of any indication that the outcome of the trial clearly would

have been different but for the trial court’s allegedly improper actions.

       {¶ 28} Appellant’s second assignment of error is overruled.

       {¶ 29} The judgment of the trial court is affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.

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

the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR
