[Cite as State v. Ralston, 2017-Ohio-7057.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

HIGHLAND COUNTY 

STATE OF OHIO, : 

 : Case No. 16CA9 

 Plaintiff-Appellee, : 

 : 

 vs. : DECISION AND JUDGMENT 

 : ENTRY 

JOHN RALSTON, : 

 : 

 Defendant-Appellant. : Released: 07/25/17 

_____________________________________________________________ 

APPEARANCES: 

Timothy Young, Ohio State Public Defender, and Patrick T. Clark, Assistant 

Ohio State Public Defender, Columbus, Ohio, for Appellant. 

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for 

Appellee. 

_____________________________________________________________ 

 

McFarland, J. 

{¶1} John Ralston appeals the judgment entry of conviction entered 

October 19, 2015 in the Highland County Court of Common Pleas. A 

Highland County jury returned a guilty verdict on five counts: possession of 

heroin, possession of methamphetamine, and three counts of receiving stolen 

property. On appeal, Ralston asserts: (1) the trial court erred in overruling 

Ralston’s motion to suppress the first of four search warrants; (2) he was 

rendered the ineffective assistance of counsel as to his motion to suppress; 

and (3) the prosecutor’s statements rose to the level of misconduct. Upon 
Highland App. No. 16CA9 2

review, we find no merit to Ralston’s arguments. Accordingly, we overrule 

his assignments of error and affirm the judgment of the trial court. 

FACTS 

{¶2} On July 7, 2015, John Ralston was indicted by the Highland 

County Grand Jury for: (1) possession of heroin, R.C. 2925.11, a felony of 

the first degree; (2) aggravated possession of methamphetamine, R.C. 

2925.11, a felony of the fifth degree; (3) receiving stolen property, R.C. 

2913.51 a felony of the fifth degree; (4) receiving stolen property, R.C. 

2913.51, a felony of the fifth degree; and, (5) receiving stolen property, R.C. 

2913. 51, a felony of the fourth degree. It was also alleged Appellant’s 

vehicle was property subject to forfeiture specification, R.C. 2941.1417. 

The indictment arose after officers of the Greenfield Police Department 

executed warrants on or about April 21, 2015 at Appellant’s home and 

business in Greenfield, Ohio. The officers located property reported stolen 

from three victims: James Stuckey, Rick Priest, and Weastec, a plant located 

in Highland County. 

{¶3} At arraignment, Appellant entered pleas of not guilty. His 

counsel subsequently filed a motion to suppress evidence directed to the 

sufficiency of the first three search warrants. At the suppression hearing, the 

parties stipulated that if the first warrant was found to be based upon 
Highland App. No. 16CA9 3

sufficient probable cause, then the second two warrants would be deemed to 

also be valid. The trial court ultimately overruled Appellant’s motion to 

suppress. 

{¶4} On October 15, 2015, Appellant proceeded to a jury trial. The 

State of Ohio called three witnesses from the Ohio Bureau of Criminal 

Identification and Investigation (BCI); James Stuckey and Rick Priest; Doug 

Ernst on behalf of Weastec; and officers of the Greenfield Police 

Department and Highland County Sheriff’s Department. Appellant called 

Richard Wright and Ronnie Wright, his associates, Alicia Ralston and 

Jonathon Ralston, Appellant’s two adult children, and one law enforcement 

officer. At the conclusion of trial, Appellant was found guilty on all counts. 

Appellant was sentenced to a ten-year prison sentence. He was also ordered 

to pay a fine, given a license suspension, and forfeited his pickup truck used 

in the commission of the crimes. 

{¶5} On March 9, 2016, Appellant filed a motion for leave to file a 

delayed appeal, which was subsequently granted by this Court. Where 

relevant, additional facts will be set forth below. 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ERRED WHEN IT OVERRULED 

MR. RALSTON’S MOTION TO SUPPRESS AS THE 

AFFIDAVIT IN SUPPORT OF THE FIRST SEARCH 
Highland App. No. 16CA9 4

WARRANT DID NOT PROVIDE SUFFICIENT PROBABLE 

CAUSE. 

II. MR. RALSTON WAS DENIED THE EFFECTIVE 

ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL 

FAILED TO CHALLENGE THE DEFICIENCIES IN THE 

SECOND SEARCH WARRANT WHEN IT CONTAINED 

THE SAME DEFICIENCIES CHALLENGED BY TRIAL 

COUNSEL IN THE FIRST SEARCH WARRANT. 

III. MR. RALSTON’S RIGHT TO A FAIR TRIAL WAS 

VIOLATED BY REPEATED INSTANCES OF 

PROSECUTORIAL MISCONDUCT.” 

ASSIGNMENT OF ERROR ONE 

A. STANDARD OF REVIEW 

{¶6} “The review of a motion to suppress is a mixed question of law 

and fact.” State v. Kerns, 4th Dist. Highland No. 15CA6, 2016-Ohio-63, 

¶15, quoting State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 

N.E.3d 638, ¶ 32, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio5372, 797 N.E.2d 71. Because the trial court acts as the trier of fact in 

suppression hearings and is in the best position to resolve factual issues and 

evaluate the credibility of witnesses, an appellate court must accept the trial 

court's findings of fact if they are supported by competent, credible 

evidence. Burnside at ¶ 8. Accepting these facts as true, we must then 

“independently determine, without deference to the conclusion of the trial 

court, whether the facts satisfy the applicable legal standard.” State v. 
Highland App. No. 16CA9 5

Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, 975 N.E.2d 965, ¶ 8, citing 

Burnside at ¶ 8; State v. Crocker, 4th Dist. Scioto No. 14CA3640, 2015-

Ohio-2528, ¶ 60. 

B. LEGAL ANALYSIS 

{¶7} Between April 21 and April 23, 2015, the Greenfield County 

Court judge issued four search warrants. Appellant asserts the facts 

contained in the affidavit in support of the first search warrant are 

insufficient to support a finding or probable cause necessary to issue the 

warrant. The first, issued on April 21, 2015 at 12:05 p.m. upon application 

by Patrolman Jennifer Lowe of the Greenfield Police Department, 

authorized the search of Appellant’s residence at 760 Jefferson Street in 

Greenfield for: 

1. Copper (sic) 1-29 (sic) pipe approximately 20 ft 

length. 

 2. Coated copper auto wire .47 mm diameter 

 3. Copper wire .045 mm diameter 

 4. Large 3-strand copper 480V cable electric wire. 

 5. Tennis shoes. 

 6. Any other items previously reported stolen to law 

 enforcement. 

{¶8} Patrolman Lowe executed the first search warrant, seizing: 

 1. 7 spoils of .47 mm copper wire. 

 2. Large 3-strand copper 480V cable electric wire. 

 3. 1⁄2 inch copper piping. 

 4. Miscellaneous rolls of wire. 

 5. Bolt cutters, wire strippers, and wire cutters. 
Highland App. No. 16CA9 6

{¶9} “The Fourth Amendment to the United States Constitution and 

the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches 

and seizures.” State v. Kerns, 4th Dist. Highland No. 15CA6, 2016-Ohio-63, 

at ¶ 16, quoting State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 

N.E.2d 787, ¶ 15. This constitutional guarantee is protected by the 

exclusionary rule, which mandates exclusion from trial of the evidence 

obtained from the unreasonable search and seizure. Id. 

{¶10} “The Supreme Court of the United States has provided that in 

determining whether a search warrant was issued upon a proper showing of 

probable cause, reviewing courts must examine the totality of the 

circumstances.” State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 

N.E.3d 123, ¶ 13, citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 

(1983). Kerns, supra, at ¶ 17. To determine whether the affidavit submitted 

in support of a search warrant established probable cause, a magistrate must 

make a practical, commonsense decision based upon all the circumstances 

set forth in the affidavit, including the “veracity” and “basis of knowledge” 

of persons supplying hearsay information, that there is a fair probability that 

contraband or evidence of a crime will be found in a particular place. Kerns, 

supra, at ¶ 18. See State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 

(1989), paragraph one of the syllabus, quoting Gates at 238-239. 
Highland App. No. 16CA9 7

{¶11} A magistrate must make a practical determination, upon all 

circumstances set forth in the warrant, whether there is a fair probability that 

evidence of a crime will be found in a particular place. State v. Vaughters, 

4th Dist. Scioto No. 2086, 1993 WL 63464, (Mar. 2, 1993), citing Gates, 

supra; United States v. Berisford (C.A.10, 1984), 750 F.2d 57. To establish 

probable cause to search a residence, the facts must be sufficient to justify a 

conclusion that the property which is the object of the search is probably on 

the premises to be searched at the time the warrant is issued. United States v. 

Hendricks (C.A.9, 1984), 743 F.2d 653; Travisano, supra, citing United 

States v. Harris, 403 U.S. 573, 91 S.Ct. 2075 (1971). In United States v. 

Lucarz (C.A.9, 1970), 430 F.2d 1051, 1055, the court wrote: 

“To establish the nexus between the place and objects sought, 

the court may look to the type of crime, the nature of the 

missing items, the extent of the suspect's opportunity for 

concealment, and normal inferences as to where a criminal 

would be likely to hide stolen property.” See also Hendricks, 

supra; United States v. Freeman (C.A.5, 1982), 685 F.2d 942. 

{¶12} The duty of a reviewing court is more limited–neither the trial 

court nor an appellate court should substitute its judgment for that of the 

magistrate by conducting a de novo determination. Kerns, supra, at ¶ 19; 

George at paragraph two of the syllabus. The duty of the reviewing court is 

simply to ensure that the magistrate had a substantial basis for concluding 

that probable cause existed, after according great deference to the 
Highland App. No. 16CA9 8

magistrate's determination and resolving doubtful or marginal cases in favor 

of upholding the warrant. Id., following Gates; see also Jones at ¶ 13-14. 

{¶13} In this case, we must review Patrolman Lowe’s affidavit to 

determine whether the magistrate had “a substantial basis to conclude there 

was a fair probability the items mentioned in the affidavit would be found at 

Appellant’s residence. The affidavit provides that Patrolman Lowe took a 

report that on April 21, 2015, Weastec, a business located in Greenfield, had 

been broken into after the alarm system and electrical supply to the building 

were disabled. 

{¶14} The affidavit also contained information that copper piping, 

spools of copper “moto wire,” and a large spoil of 480V cable electric wire 

were removed from the business. Shoe prints inside and outside Weastec 

resembled a tennis shoe type print. After taking the report and attempting to 

check local scrap yards without success, Lowe checked a residence in town 

where previous information had been received of Appellant dealing in scrap 

metal items and stolen goods.1

{¶15} In particular, Appellant argues: 

1. Patrolman Lowe’s affidavit in support of the first search 

warrant indicated that “previous information had been 

received” that Appellant dealt in stolen goods. Since the trial 

 

1

 In overruling the motion to suppress, the trial court stated: “The Court finds that the information regarding 

the Defendant dealing in stolen goods was not supported by any evidence and therefore considers it to be 

irrelevant in the determination of probable cause.” 
Highland App. No. 16CA9 9

court did not consider this information, the court was left to 

consider whether the observation of copper pipes and 480V 

cable electric wire located outside of a scrapping business 

constituted sufficient probable cause. 

2. Patrolman Lowe’s affidavit also stated the items in the bed of 

Appellant’s truck appeared “to be in connection with items 

damaged or missing from Weastec.” The affidavit, however, 

did not identify the items seen in the back of his truck and only 

stated what items had been stolen from Weastec. Patrolman 

Lowe did not state that the items matched until the fourth 

search warrant, issued two days later. 

3. Nothing in Patrolman Lowe’s affidavit showed the basis of 

her knowledge that unnamed and unidentified items seen in the 

bed of Appellant’s truck by Lowe, from her vantage point in the 

alley behind Appellant’s residence, “appear to be in connection 

with” the stolen items from Weastec. 

4. Appellant concludes that given the trial court’s finding that it 

would not have issued a warrant without additional information 

from Patrolman Lowe demonstrates that a substantial basis for 

probable cause had not been established. Without identifying 

the items in the bed of Appellant’s truck and their connection to 

Weastec, or information showing that the wire and copper 

outside Appellant’s residence were the wire and copper taken 

from Weastec or in any way related to criminal activity, 

sufficient probable cause to grant the first search warrant did 

not exist. 

{¶16} In response, the Appellee argues that Patrolman Lowe 

observed specific property reported stolen from Weastec on Appellant’s 

property, copper pipes and 480V cable electric wire. Lowe took photos of 

the items. The basis of knowledge was from an officer who actually 
Highland App. No. 16CA9 10

observed suspected stolen property at Appellant’s property only hours after 

the break-in at Weastec. 

{¶17} In our own district in Vaughters, supra, the appellant was 

convicted of receiving stolen property. On appeal, he challenged the denial 

of his motion to suppress, arguing the facts in the affidavit were insufficient 

to support a finding of probable cause necessary to issue the warrant. Facts 

revealed that in November 1991, a Scioto County Sheriff’s Deputy executed 

a search warrant authorized by a judge of the Portsmouth Municipal Court at 

Vaughters’ residence, also in the same location as his pest control business. 

The warrant authorized the search for two specific chemicals used in making 

pesticides.2

 Upon execution of the warrant, the deputy seized several drums 

of various chemicals and firearms. 

{¶18} Vaughters contended that the affidavit did not include specific 

information as to the alleged dates of sale. Vaughters argued the absence of 

the information militated against a finding of probable cause that the stolen 

chemicals would be on the premises. This court did not agree. We found 

the information in the affidavit sufficiently recent to allow the magistrate to 

reasonably believe the chemicals were located on the premises described in 

the search warrant at the time of the execution of the warrant. 

 

2

 It was alleged that Vaughters enlisted another person to steal chemicals from his workplace and then to 

sell them to Vaughters multiple times and at multiple locations during a six-month period. 
Highland App. No. 16CA9 11

{¶19} Vaughters also contended the affidavit did not include any 

factual observations that supported the belief that the chemicals could be 

found at his residence. Vaughters noted that because the alleged sales of the 

chemicals occurred in parking lots, neither the informant nor the 

investigating officers had information regarding the location of the 

chemicals. Again, we disagreed. 

{¶20} In Vaughters, we found the information listed in the affidavit 

was sufficient to permit the inference concerning the probable location of the 

chemicals. The informant sold large quantities of the hazardous chemicals 

to Vaughters, apparently for use in Appellant's pest control business. The 

issuing magistrate could have reasonably inferred the chemicals were 

located at Appellant's place of business (which also served as Appellant's 

residence). After our review of the affidavit, we concluded, after affording 

the appropriate deference to the determination of the issuing magistrate and 

to the court below, there was a “substantial basis” for the municipal court 

judge’s conclusion that there was a “fair probability” the stolen chemicals 

might be stored at appellant's business. 

{¶21} Upon review of the foregoing principles, reviewing the totality 

of the circumstances, and reviewing the affidavit at issue herein, we find the 

facts submitted in support of the affidavit were sufficient to establish 
Highland App. No. 16CA9 12

probable cause necessary to issue the first search warrant. Appellant 

challenges the specificity of the description of the items seen in his truck 

which “appeared to be in connection with” the items stolen from Weastec, 

and the basis of Patrolman Lowe’s knowledge. In overruling Appellant’s 

motion to suppress, the trial court stated in pertinent part: 

“Lowe stated that she and another officer drove down a public 

alley at the rear of the Defendant’s residence at 760 Jefferson 

St., Greenfield, Ohio and observed copper pipes and 480V 

cable electric wire lying in a small pile behind the residence. 

They took photos and observed other items in the back of the 

Defendant’s truck that appeared to be in connection with items 

damaged or missing from Weastec. There was no further 

description of these items. 

* * * 

[T]he Court finds that the affidavit, however ‘bare bones’ in 

content, did contain the minimum information needed to 

support the issuance of the search warrant by the county court 

judge. The precise time of the break-in was not necessary. 

April 21st was a Tuesday. The search warrant was issued by 

the county court judge at 12:05 p.m., shortly after noon. It is 

reasonable to assume that Weastec employees found the breakin when they came to work that morning and contacted police. 

This Court is not concerned with whether officers got out of the 

car to view the items. The veracity of the affiant’s information 

is not in issue. The affidavit need not set forth that the items 

viewed were in fact stolen only whether there is a fair 

probability that they are not the items stolen. That is the 

purpose of obtaining the warrant, to establish whether they are 

the same items. 

The fact that the items seen in the truck matched those reported 

stolen the same day as the report of the break-in was sufficient 
Highland App. No. 16CA9 13

given the nature of the items to support a determination of 

probable cause.” 

{¶22} Mindful of the instruction to give great deference to the issuing 

magistrate’s determination, we find the items Patrolman Lowe saw in the 

back of Appellant’s truck were identified with sufficient particularity. In its 

ruling, the trial court noted Patrolman Lowe took photos of the items in the 

back of Appellant’s truck. At trial, Patrolman Lowe testified about her 

investigation of Appellant’s case, as follows: 

“Q: And on [April 21, 2015] did you have occasion to, 

uh...did you receive a report regarding Weastec? 

A: Yes. 

Q: And what was the basis of that report? 

A: That Weastec had been broken into, uh, and items of 

copper, copper piping, copper wire, electric wire, had been 

removed. 

Q: In response to that, what did you do? 

A: Uh, responded there, took photographs of Weastec, 

photographs of items that had been left behind. Some of the 

items, when they talked about copper wire I wasn’t exactly 

familiar with, I wasn’t exactly for sure what I was looking for. 

So, some of the wire that had been left behind we took 

photographs of that so if we came across it I would be able to 

identify it.” 

{¶23} While we have the benefit of Appellant’s trial testimony after 

the fact, it supports the conclusion that given the nature of the items, copper 
Highland App. No. 16CA9 14

pipe and cable electric wire, and Patrolman Lowe’s admitted unfamiliarity 

with such items, her description of the items did not allow for greater 

specificity and detail. We have reviewed, in particular, State’s exhibits 72, 

73, and 76. State’s exhibit 72 depicts what appears to be a type of cable 

intermixed with a type of wiring. It also depicts a spool of what appears to 

be an orange-colored wire. Items 2, 3, and 4 in the first search warrant are 

for three types of copper wire. 

{¶24} Exhibit 73 is the only photograph of any item in the back of 

Appellant’s white pickup truck. It appears to be a type of wire in good and 

readily usable condition. Exhibit 76 depicts what appears to be a type of 

cable and copper pipes, which also appear to be in good and readily usable 

condition. Item one listed in the first search warrant is copper pipe. Again, 

given the nature of the items and our cursory review, we find Patrolman 

Lowe’s description of the items was sufficiently reasonable under the 

circumstances. The trial court remarked upon the close proximity of time 

between the break-in at Weastec and the matching items in the back of 

Appellant’s truck on the same day. And, the fact that some of the items 

depicted in the photographs appear to be in good and readily usable 

condition distinguishes them as possibly stolen goods as opposed to scrap 

materials. 
Highland App. No. 16CA9 15

{¶25} In State v. Overholt, 9th Dist. Medina No. 02CA0108-M, 

2003-Ohio-3500, the appellate court reiterated the requirement that items to 

be located and seized must be identified with sufficient particularity. 

Overholt, supra, at ¶ 13. See State v. McGettrick, 40 Ohio App.3d 25, 29, 

531 N.E.2d 755 (8th Dist.1988). The Overholt opinion noted that the 

specificity required varies with the nature of the items to be seized. See id. 

In determining whether a warrant is specific enough, the key inquiry is 

whether the warrant could reasonably have described the items more 

precisely. Id. at ¶ 14; State v. Benner, 40 Ohio St.3d 301, 307, 533 N.E.2d 

701 (1988). It is important to note that the prohibition against general 

warrants will not prevent the issuance of a broad or generic listing of items 

to be seized if the circumstances do not allow for greater specificity and 

detail. State v. Dalpiaz, 151 Ohio App.3d 257, 2002-Ohio-7346, 783 N.E.2d 

926, (11th Dist.), ¶ 27, citing United States v. Wicks (C.A.10, 1993), 995 

F.2d 964, 973. 

{¶26} In Overholt, which involved the defendant’s appeal of a 

conviction for receiving stolen property, the warrant at issue authorized the 

seizure of “All-Terrain vehicles, any parts thereof, contraband, any and all 

all-terrain vehicle parts identified as stolen, [and] any and all vehicle parts 

identified as stolen.” Thus, the appellate court found: “[T]he warrant limited 
Highland App. No. 16CA9 16

the search relative to the particular circumstances of the case and the nature 

of the alleged stolen items. All the items identified were connected to the 

investigation of the receipt of the stolen all-terrain vehicle (“ATV”) and 

various parts associated with the vehicle. Therefore, the evidence was 

sufficiently identified.” Id. at 15. 

{¶27} For the foregoing reasons, while we concur with the trial 

court’s comment that the affidavit supporting the search warrant was “bare 

bones,” we conclude that the issuing magistrate had a substantial basis for 

concluding that probable cause existed.3

 As such, we find no merit to 

Appellant’s argument that the trial court erred by overruling his motion to 

suppress. 

{¶28} In Appellee’s brief, it is argued that even if this court 

concludes that no substantial basis exists for the issuing magistrate to find 

that the affidavit established probable cause, the search must be upheld upon 

the “good faith exception” to the exclusionary rule. In George, supra, at 

paragraph three of the syllabus, the Supreme Court of Ohio stated: 

“The Fourth Amendment exclusionary rule should not be 

applied so as to bar the use in the prosecution's case-in-chief of 

evidence obtained by officers acting in objectively reasonable 

reliance on a search warrant issued by a detached and neutral 

magistrate but ultimately found to be unsupported by probable 

 

3

 In the decision overruling Appellant’s motion, the trial court also commented that the affidavit was very 

brief, could have been drafted in more detail, and that the trial court judge would have required the officer 

to take more time to add details. 
Highland App. No. 16CA9 17

cause. (United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 

(1983) followed.)”4

{¶29} In our view, if the first search warrant issued in this case was 

found deficient, Patrolman Lowe acted in objectively reasonable, good-faith 

reliance on it so that the exclusionary rule would not apply. See George, 45 

Ohio St.3d 325, 544 N.E.2d 640, at paragraph three of the syllabus. See

Kerns, supra, at ¶ 26. There is no evidence that the issuing magistrate was 

misled by information in an affidavit that the affiant knew was false, or 

would have known was false except for reckless disregard of the truth. 

Further, there is no evidence the issuing magistrate abandoned his judicial 

role. 

{¶30} For the foregoing reasons, we find no merit to Appellant’s first 

assignment of error. As such, it is hereby overruled. 

 

4

 In Leon, the United States Supreme Court described reasonable reliance as follows: 

“Suppression therefore remains an appropriate remedy if the magistrate or judge in 

issuing a warrant was misled by information in an affidavit that the affiant knew was 

false or would have known was false except for his reckless disregard of the truth. Franks 

v. Delaware, 438 U.S. 154, (1978). The exception we recognize today will also not apply 

in cases where the issuing magistrate wholly abandoned his judicial role in the manner 

condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, (1979); in such circumstances, 

no reasonably well trained officer should rely on the warrant. Nor would an officer 

manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in 

indicia of probable cause as to render official belief in its existence entirely 

unreasonable.’ Brown v. Illinois, 422 U.S., at 610-611, (POWELL, J., concurring in part); 

see Illinois v. Gates, supra, at 263-264 (WHITE, J., concurring in judgment). Finally, 

depending on the circumstances of the particular case, a warrant may be so facially 

deficient-i.e., in failing to particularize the place to be searched or the things to be seizedthat the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. 

Sheppard, at 988-991.”Leon, 468 U.S. at 923, 82 L.Ed.2d at 698-99, 104 S.Ct. at 3421. 

See also State v. Wilmoth, 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986), paragraph one of 

the syllabus. 
Highland App. No. 16CA9 18

ASSIGNMENT OF ERROR TWO 

{¶31} In this case, defense counsel stipulated that if the first search 

warrant was found to be lawful, that the motion as to the other two search 

warrants should be overruled as the probable cause in the affidavits in 

support of those warrants was based upon observations of the officers while 

on the premises executing the first warrant. Appellant argues there was no 

strategic reason not to raise the fact that the second search warrant was also 

not supported by sufficient probable cause and was overbroad. He contends 

the trial court’s ruling and case law point to the deficiencies in the affidavit 

submitted in support of the second search warrant. In Appellant’s view, a 

successful challenge would have resulted in suppression of evidence from 

the second search warrant, as well as evidence from the third and fourth 

search warrants. As such, Appellant concludes that trial counsel was 

deficient for failing to move to suppress evidence obtained as a result of the 

second search warrant. 

{¶32} Appellee responds that Appellant cannot show that a second 

motion would have been granted because the initial affidavit was found to 

have sufficient probable cause. The subsequent affidavits, based upon the 

first affidavit and with more detail added, would also be upheld by the trial 

court. Appellee concludes that argument regarding the subsequent search 
Highland App. No. 16CA9 19

warrants would have been frivolous, wasteful of the court’s time, and 

Appellant did not suffer ineffective assistance based on counsel’s decision 

not to argue frivolous motions. 

A. STANDARD OF REVIEW 

{¶33} Criminal defendants have a right to counsel, including a right 

to the effective assistance from counsel. State v. Bailey, 4th Dist. Ross No. 

2015-Ohio-5483, ¶ 8; McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 

1441, (1970), fn.14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008-Ohio1366, ¶ 21; State v. Barfield, 4th Dist. Ross No. 13CA3387, 2015-Ohio-891, 

¶ 8. To establish constitutionally ineffective assistance of counsel, a 

criminal defendant must show (1) that his counsel's performance was 

deficient and (2) that the deficient performance prejudiced the defense and 

deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 

104 S.Ct. 2052, (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 

(2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “[A] 

defendant bears the burden to show ineffectiveness by demonstrating that 

counsel's errors were so serious that he or she failed to function as the 

counsel guaranteed by the Sixth Amendment.” State v. Walters, 4th Dist. 

Washington Nos. 13CA33 & 13CA36, 2014-Ohio-4966, ¶ 23, quoting State 
Highland App. No. 16CA9 20

v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62 and 

State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). 

{¶34} “In order to show deficient performance, the defendant must 

prove that counsel's performance fell below an objective level of reasonable 

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

probability that, but for counsel's errors, the result of the proceeding would 

have been different.” Bailey, supra, at ¶ 39, quoting State v. Conway, 109 

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure to 

establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto 

No. 06CA3116, 2008-Ohio-968, ¶ 14. “Furthermore, courts may not simply 

assume the existence of prejudice, but must require that prejudice be 

affirmatively demonstrated.” Walters at ¶ 24. “There are countless ways to 

provide effective assistance in any given case; therefore, judicial scrutiny of 

counsel's performance must be highly deferential.” Id. (Citations omitted). 

B. LEGAL ANALYSIS 

{¶35} The trial court’s decision overruling the motion to suppress 

observed that the parties stipulated that the ruling as to the second warrant 

would depend upon the ruling on the first warrant, as the second warrant was 

issued based upon observations of the affiant police officer after entry into 

the house pursuant to the first warrant. The trial court further noted that if 
Highland App. No. 16CA9 21

the search warrant was found to be lawful, the motion as to the second 

search warrant would also be overruled as the probable cause in the affidavit 

in support of the second warrant was based upon the observations of the 

officers. 

{¶36} During execution of the first warrant, Officer Shawn Shanks, 

who testified at trial, observed a pair of pliers with brown residue on a white 

household plate in Appellant’s basement. Officer Shanks believed the 

residue could be heroin so he collected the plate and pliers as evidence. 

Based upon the collection of the suspected heroin residue and observation of 

other items, Patrolman Lowe applied for a second search warrant. 

{¶37} Patrolman Lowe’s affidavit, submitted in support of the second 

search warrant, stated in pertinent part: 

“* * * [O]n April 21, 2015 at 12:25 p.m., I, along with other 

officers and deputy sheriffs, executed a search warrant at 760 

Jefferson Street to search for evidence and property taken from 

a breaking and entering at Weastec, Industrial Parkway, 

Greenfield overnight. Upon arriving and while securing 

everyone in the home, officers observed a substance I believe to 

be heroin and other drug paraphernalia in the basement. Also 

inside the home, garage, crawlspace, and inside parked vehicles 

outside, are piles of tools, equipment, household items, and 

other items that based on my training and experience and 

intelligence information are likely stolen from various places 

and construction sites.” 

{¶38} “A properly licensed attorney is presumed to execute his duties 

in an ethical and competent manner.” State v. Taylor, 4th Dist. Washington 
Highland App. No. 16CA9 22

No. 07CA11, 2008-Ohio-482, ¶ 10; citing State v. Smith, 17 Ohio St.3d 98, 

100, 477 N.E.2d 1128 (1985). As such, a defendant bears the burden to 

show ineffectiveness by demonstrating that counsel's errors were so serious 

that he or she failed to function as the counsel guaranteed by the Sixth 

Amendment. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 

N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 

(1988). When considering whether trial counsel's representation amounts to 

deficient performance, “a court must indulge a strong presumption that 

counsel's conduct falls within the wide range of reasonable professional 

assistance.” Canterbury, supra, at 67; Strickland, 466 U.S. at 689. Thus, 

“the defendant must overcome the presumption that, under the 

circumstances, the challenged action might be considered sound trial 

strategy.” Id.

{¶39} Trial counsel's “ ‘failure to file a suppression motion does not 

constitute per se ineffective assistance of counsel.’ ” State v. Lawson, 4th 

Dist. Pickaway No. 14CA20, 2015-Ohio-4394, ¶15, quoting Madrigal, 87 

Ohio St.3d at 389, quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 

S.Ct. 2574, (1986); accord State v. Neyland, 139 Ohio St.3d 353, 2014-

Ohio-1914, 12 N.E.3d 1112, ¶ 126. “To establish ineffective assistance of 

counsel for failure to file a motion to suppress, a defendant must prove that 
Highland App. No. 16CA9 23

there was a basis to suppress the evidence in question.” State v. Brown, 115 

Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65, citing State v. 

Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35. 

“ ‘Where the record contains no evidence which would justify the filing of a 

motion to suppress, the appellant has not met his burden of proving that his 

attorney violated an essential duty by failing to file the motion.’ ” State v. 

Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 208, 

quoting State v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th 

Dist.1980); accord Neyland at ¶ 126. “We must presume that trial counsel 

was effective if counsel ‘could have reasonably decided that filing a 

suppression motion would be a futile act, even if there is some evidence to 

support a motion.’ ” State v. Novak, 4th Dist. Gallia No. 16CA4, 2017-Ohio455, ¶ 24, quoting State v. Siggers, 4th Dist. Ross No. 13CA3368, 2014-

Ohio-506, ¶ 10, quoting State v. Walters, 4th Dist. Scioto No. 12CA949, 

2013-Ohio-772, ¶ 20. 

{¶40} Having found the affidavit supporting the first application for a 

search warrant was supported by probable cause, we further find it was 

reasonable trial strategy to make the stipulation regarding the second 

warrant. Appellant’s trial counsel could have reasonably determined that 

pursuing suppression as to the second search warrant would be a futile act. 
Highland App. No. 16CA9 24

However, Appellant contends that: (1) the list of items in the second warrant 

was overly broad; and, (2) support for issuance of the second warrant was 

based on an unsupported anonymous tip. 

{¶41} The second warrant alleges that the offenses of possession of 

drugs and receiving stolen property had occurred in Greenfield. Patrolman 

Lowe’s affidavit describes her observation of the substance she suspected to 

be heroin. The need for the second warrant arose during the initial search at 

12:25 p.m. and the second warrant was issued at 2:42 p.m. Given the type of 

crimes Patrolman Lowe and others were investigating, we find the list of 

items in the second warrant to be sufficiently specific. And, while Appellant 

argues support for the second warrant was based on a vague anonymous tip, 

we note it was also supported by Patrolman Lowe’s training and experience. 

Had defense counsel pursued these arguments, we find it doubtful that he 

would have prevailed. 

{¶42} For the foregoing reasons, we find Appellant cannot show that 

pursuit of suppression as to the second warrant would have been anything 

but futile. As such, he is unable to show prejudice for his counsel’s strategic 

choice not to pursue a futile act. We find no merit to Appellant’s second 

assignment of error that he was rendered ineffective assistance. Therefore, 

we hereby overrule the second assignment of error. 
Highland App. No. 16CA9 25

ASSIGNMENT OF ERROR THREE 

{¶43} Appellant argues his right to a fair trial was violated by 

repeated instances of prosecutorial misconduct. Appellant contends the 

prosecutor expressed an improper personal opinion about his guilt and 

further, elicited testimony and made closing statements that were improper 

and should be considered cumulatively. Appellee asserts that the facts and 

statements, when read in the context of the entire trial, are far from 

improper. Because Appellant failed to lodge objections to the prosecutor’s 

comments, we review the alleged errors under the plain-error standard. 

A. STANDARD OF REVIEW 

{¶44} Failure to object to an alleged error waives all but plain error. 

State v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, ¶ 15; 

State v. Keeley, 4th Dist. Washington No. 11CA5, 2012-Ohio-3564, ¶ 28. 

Notice of Crim.R. 52(B) plain error must be taken with the utmost caution, 

under exceptional circumstances and only to prevent a manifest miscarriage 

of justice. State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 

N.E.2d 920, ¶ 6; State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), 

paragraph three of the syllabus. To find plain error, the outcome of trial 

must clearly have been otherwise. State v. McCausland, 124 Ohio St.3d 8, 
Highland App. No. 16CA9 26

2009-Ohio-5933, 918 N.E.2d 507, ¶ 15; State v. Braden, 98 Ohio St.3d 354, 

2003-Ohio-1325, 785 N.E.2d 439, ¶ 50. 

{¶45} “The test for prosecutorial misconduct is whether the conduct 

was improper and, if so, whether the rights of the accused were materially 

prejudiced.” Canterbury, supra, at ¶ 16, quoting State v. Purdin, 4th Dist. 

Adams No. 12CA944, 2013-Ohio-22, ¶ 31; quoting State v. Leonard, 4th 

Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 36; citing State v. Smith, 97 

Ohio St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45, in turn citing State 

v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “The ‘conduct of a 

prosecuting attorney during trial cannot be grounds for error unless the 

conduct deprives the defendant of a fair trial.’ ” Purdin at ¶ 31; quoting State 

v. Givens, 4th Dist. Washington No. 07CA19, 2008-Ohio-1202, ¶ 28; 

quoting State v. Gest, 108 Ohio App.3d 248, 257, 670 N.E.2d 536 (8th 

Dist.1995). Accord State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 

394 (1987). “Prosecutorial misconduct constitutes reversible error only in 

rare instances.” Purdin, supra, quoting State v. Edgington, 4th Dist. Ross 

No. 05CA2866, 2006-Ohio-3712, ¶ 18; citing State v. Keenan, 66 Ohio 

St.3d 402, 406, 613 N.E.2d 203 (1993). The “touchstone analysis * * * is 

the fairness of the trial, not the culpability of the prosecutor. * * * The 

Constitution does not guarantee an ‘error free, perfect trial.’ ” Purdin at 
Highland App. No. 16CA9 27

¶ 31; quoting Leonard at ¶ 36; quoting Gest at 257. 

B. LEGAL ANALYSIS 

1. Alleged improper remarks. 

{¶46} At trial, Detective Chris Bowen, on behalf of the State, 

testified that Appellant told him he had purchased some of the allegedly 

stolen items at Lucasville Swap Days, described as “a giant flea market.” 

Richard Wright, Appellant’s associate, testified on behalf of the defense that 

Appellant purchased “almost an entire trailer load” of items at Swap Days. 

Appellant points to the prosecutor’s comment to the jury in closing argument 

that she had been to Lucasville Trade Days. The prosecutor stated: 

“The Defendant wants you to believe that the tools, the house 

supplies, and the heater were all purchased at the Lucasville 

Trade Days. Now I tell you, I’ve been there, several times. 

And certainly these items, probably everything but the heater 

could be purchased there. But, let’s think about this: The idea 

that someone would have purchased all of these stolen items on 

the same weekend and brought them all back, and the next day 

served with a search warrant? That’s not reasonable.” 

{¶47} Appellant argues the statements made by the State in closing 

provide a personal opinion about the veracity of both Mr. Ralston’s 

statement and Richard Wright’s testimony and indicate that this is based on 

information personally obtained by the prosecutor but not presented to the 

jury. 

{¶48} As a general matter, “[i]t is improper for an attorney to express 
Highland App. No. 16CA9 28

his or her personal belief or opinion as to the credibility of a witness.” 

Canterbury, supra, at ¶ 25, quoting State v. Thompson, 141 Ohio St.3d 254, 

292, 2014-Ohio-4751, 23 N.E.3d 1096; quoting State v. Williams, 79 Ohio 

St.3d 1, 12, 679 N.E.2d 646 (1997). Further, “the state may not ‘unfairly 

suggest[ ] that the defense's case was untruthful and not honestly 

presented.’ ” State v. Thompson at 291; quoting State v. LaMar, 95 Ohio 

St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 167. And, prosecutors 

“ ‘may not express their personal beliefs or opinions regarding the guilt of 

the accused.’ ” Canterbury, supra, at ¶ 18, quoting State v. Marcum, 4th 

Dist. Gallia No. 12CA6, 2013-Ohio-5333, ¶ 63; quoting State v. Topping, 

4th Dist. Lawrence No. 11CA6, 2012-Ohio-5617, ¶ 85; in turn quoting State 

v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). 

{¶49} The prosecutor is permitted to fairly comment upon 

the testimony and evidence. Canterbury, supra, at 31. Topping, supra; State 

v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 119. Any 

“‘[p]rosecutorial misconduct rises to plain error only if it is clear that a 

defendant would not have been convicted in the absence of the improper 

comments.’ ” Canterbury, supra, at ¶ 19, quoting Marcum, supra, at ¶ 38; 

quoting State v. Purdin, supra, at ¶ 39; quoting State v. Keeley, supra, at 

¶ 28; citing State v. Conley, 4th Dist. Pike No. 08CA784, 2009-Ohio-1848, 
Highland App. No. 16CA9 29

¶ 7; State v. Olvera–Guillen, 12th Dist. Butler No. CA2007–05–118, 2008-

Ohio-5416, ¶ 36. Yet, we must be mindful that when reviewing allegations 

of prosecutorial misconduct, it is our duty to consider the complained of 

conduct in the context of the entire trial. State v. Waters, 4th Dist. Vinton 

No. 13CA693, 2014-Ohio-3109, ¶ 33; citing Sunbury v. Sullivan, 5th Dist. 

Delaware No. 11CAC030025, 2012-Ohio-3699, ¶ 30; citing Darden v. 

Wainright, 477 U.S. 168, 106 S.Ct. 2464 (1986). 

{¶50} Based upon a review of the record and considering the 

prosecutor’s statement regarding her own familiarity with the “trade 

days/swap meet,” within the context of the entire trial, we cannot conclude 

that the statements by the prosecution, when reviewed under a plain error 

standard, rose to the level of prosecutorial misconduct. In other words, we 

cannot say Appellant would not have been convicted in the absence of the 

statements. 

{¶51} Cody Gunning, Appellant’s neighbor, testified that on Monday 

April 20th, approximately 2:30 or 3:00 a.m., he was awakened by the sound 

of vehicle doors slamming shut. He got up to get a drink and noticed 

Appellant in his white Chevy Silverado pickup truck with a spool of wire 

and other miscellaneous items in the bed of the truck. Gunning went back to 

bed. When he left around 5:00 or 5:30 a.m. for a work-related interview, he 
Highland App. No. 16CA9 30

noticed everything in the back of Appellant’s white truck was gone. 

Gunning identified the white pickup truck in the State’s exhibits, and he 

identified Appellant in the courtroom. 

{¶52} Doug Ernst, senior manager over operations at Weastec, 

testified the Greenfield facility was not staffed on Monday, April 20th. 

However, when Ernst went to the Weastec Greenfield facility on Tuesday, 

April 21st, he found that somebody had cut security wires, broken strike 

plates, and gained access to the building. Weastec items were in disarray, 

out of place. He found various items, unique to Weastec, had been stolen, 

such as spools of copper wire. He immediately reported the break-in to the 

Greenfield Police Department. 

{¶53} Patrolman Lowe testified, as related above, that she responded 

to the Weastec facility, took a report, and began looking at various local 

scrap yards. When she saw items in the back of Appellant’s truck that she 

thought could possibly be the stolen items, she applied for a search warrant, 

and subsequently found various items of Weastec property. 

{¶54} James Stuckey, who was building a new home in Leesburg, 

Ohio, testified that he was a victim of theft on November 26, 2014. Upon 

learning of the Weastec incident, on April 22, 2015, Stuckey contacted the 

Greenfield Police Department and Highland County Sheriff’s Office 
Highland App. No. 16CA9 31

regarding his stolen property. At both places he found items belonging to 

him. He also accompanied officers to Appellant’s residence and found more 

items belonging to him, including a rare heater, a spool of Romex wire, a 

decorative outdoor light, and windows. Stuckey identified the stolen 

property at trial. 

{¶55} Rick Priest, a building contractor, testified he was working at 

the Stuckey job site. He had an enclosed tool trailer to store his 

construction-related equipment. When he reported to the job site on October 

2014, he found his trailer locks had been cut and his tools removed. He 

reported the theft to the Sheriff’s Department. Another theft at the same job 

site occurred on November 28, 2014. Priest again reported the theft to law 

enforcement. On April 23, 2015, he received a call from the Greenfield 

Police Department to report and identify his property at the police 

department at Appellant’s home. Priest identified for the jury various 

photographs of hand tools and power tools that he recovered. 

{¶56} Richard Wright testified on behalf of Appellant. He testified 

he was self-employed and did odd jobs. Because he lives near Appellant’s 

recycling center, he would sometimes open the business or close it for 

Appellant. He had worked for Appellant intermittently for 20 years. He 

testified Appellant took in all types of scrap metal, and sold it to larger 
Highland App. No. 16CA9 32

recycling centers. He testified Appellant hoarded miscellaneous scrap items 

in his building. 

{¶57} Wright testified he went to a flea market in Lucasville with 

Appellant who bought windows and lights. Wright identified light fixtures 

and windows in the State’s exhibits and testified Appellant bought those at 

Lucasville. He also testified Appellant bought “almost an entire trailer load” 

of various items at the flea market. 

{¶58} On cross-examination, Wright testified Appellant paid him 

approximately $40.00 a day. He did not report that to the IRS. Wright 

testified his brother drove the white truck to Lucasville, and Wright 

unloaded the items purchased at Lucasville late at night. 

{¶59} Appellant was unable to elicit many pertinent facts from his 

final witnesses. Richard Wright’s brother, Ronnie Wright, testified he had 

known Appellant for 5-6 years. He repaired items for Appellant’s business. 

Appellant also called his son and daughter, both whom appeared in jail –

issued clothing before the jury. Due to their own legal difficulties, they 

exercised their Fifth Amendment right not to incriminate themselves in 

response to many questions. 

{¶60} Based on the testimony presented at trial, we cannot say 

Appellant would not have been convicted in the absence of the prosecutor’s 
Highland App. No. 16CA9 33

statement regarding her familiarity with the Lucasville flea market. While 

much of the evidence of Appellant’s guilt is circumstantial, “[D]irect 

evidence of a fact is not required. Circumstantial evidence * * * may also be 

more certain, satisfying, and persuasive than direct evidence.” State v. Dunn,

4th Dist. Jackson No. 15CA1,2017-Ohio-518,¶ 25, quoting State v. Grube,

2013-Ohio-692, 987 N.E.2d 287 (4th Dist.), ¶ 30, quoting State v. Lott, 51 

Ohio St.3d 160, 555 N.E.2d 293 (1990), citing Michalic v. Cleveland 

Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 10, (1960), citing Rogers v. 

Missouri Pacific RR Co, 352 U.S. 500-508, fn.17, 77 S.Ct. 443, 449, fn.17, 

(1957). 

{¶61} While Appellant did present his defense that the allegedly 

stolen items were purchased at the flea market he visited, determination of 

the credibility of all the witnesses was well within the province of the jury. 

State v. Shifflet, 2015-Ohio-4250, 44 N.E.3d 966, at ¶ 99. A jury sitting as 

the trier of fact is free to believe all, part, or none of the testimony of any 

witness who appears before it. State v. Grube, 2013-Ohio-692, 987 N.E.2d 

287, ¶ 31 (4th Dist.). 

{¶62} A jury is in the best position to view the witnesses and to 

observe witness demeanor, gestures and voice inflections, and to use those 

observations to weigh credibility. Grube, supra, citing Myers v. Garson, 66 
Highland App. No. 16CA9 34

Ohio St.3d 610, 615, 614 N.E.2d 742 (1993); Seasons Coal Co. v. 

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Appellate courts 

should not generally second guess juries on matters of weight and 

credibility. Grube, supra. See State v. Vance, 4th Dist. Ross No. 03CA27, 

2004-Ohio-5370, at ¶ 10. 

{¶63} We are also mindful prosecutors are granted wide latitude in 

closing argument, and the effect of any conduct of the prosecutor during 

closing argument must be considered in light of the entire case to determine 

whether the accused was denied a fair trial.” State v. Hall, 4th Dist. Ross No. 

14CA3391, 2014-Ohio-2959, ¶ 47. Furthermore, the trial court instructed 

the jury that the closing arguments of counsel are not evidence, and we 

presume that jurors follow the court's instructions. State v. Noling, 98 Ohio 

St. 3d 44, 2002-Ohio-7044, 781 N.E. 2d 88, See, e.g., State v. Williams, 73 

Ohio St.3d 153, 159, 652 N.E.2d 721 (1995). 

{¶64} For the foregoing reasons, we find the prosecutor’s comment 

that she had been to the Lucasville Flea Market and that Appellant’s 

explanation of how he came to possess the stolen items was not reasonable, 

even if in error, cannot be said to have risen to the level of plain error. 

2. Alleged misrepresentation of evidence. 

{¶65} Appellant was not charged with breaking and entering 
Highland App. No. 16CA9 35

Weastec. He argues that at trial, the State elicited testimony from Patrolman 

Lowe which incorrectly implied Appellant was involved in the break-in at 

Weastec. 

Q: During the search, uh, what about the truck caught your 

attention? 

A: The initial thing that caught my attention is there had 

been mud sprayed up the side. Uh, subjects out at Weastec, uh, 

whatever vehicle that was used had gotten stuck in the mud 

behind the back of the building because of rain the previous 

night. And the other thing that caught my eye about his truck 

was some items in the back that appeared to have possibly to 

have come from Weastec. 

While not objecting to the testimony, defense counsel later tried to elicit 

testimony from Lowe that Appellant had been ruled out as involved in the 

break-in at Weastec. He was permitted to elicit testimony that the tire tracks 

at Weastec did not match Appellant’s truck. However, he was not allowed 

to question about Appellant’s exclusion from the DNA evidence from 

Weastec and the recovery of fingerprints at Weastec that were not compared 

to Appellant’s.5

{¶66} Appellant argues Lowe’s testimony misrepresented the 

evidence and when the State’s closing statement and elicited testimony are 

considered cumulatively, Appellant’s right to a fair trial was prejudiced. 

 

5

 At a bench conference on the State’s objections to defense counsel’s questions on the fingerprinting and 

DNA testing, the State offered that it had elicited the testimony about the truck from Patrolman Lowe in 

order to prove the truck was holding wire belonging to Weastec and therefore subject to forfeiture. 
Highland App. No. 16CA9 36

However, Appellee takes the position that it was Appellant who was trying 

to misrepresent the evidence since the fingerprints and DNA were not even 

sent for testing. Defense counsel’s questions on these topics, if not 

overruled by the trial court, could have mislead the jury into thinking 

scientific testing had in fact been done and Appellant’s fingerprints and 

DNA had been excluded by the testing. 

{¶67} While Patrolman Lowe’s testimony may have had the effect of 

suggesting Appellant was involved in the break-in, it does appear relevant to 

explaining the steps of her investigation. Defense counsel, by strategically 

not posing an objection, was able to utilize the testimony to emphasize that 

the truck tracks at Weastec did not match Appellant’s truck. We do not find 

the prosecutor’s action in eliciting the testimony to be misconduct. 

{¶68} Further, if the prosecutor’s action could be construed as 

misconduct, we do not find it rose to the level of plain error. Similarly, we 

do not find Appellant’s right to a fair trial was prejudiced by the elicited 

testimony in and of itself, or cumulatively. As set forth above, we find there 

was other circumstantial evidence of Appellant’s guilt which the jury found 

credible. For the foregoing reasons, we find no merit to Appellant’s third 

assignment of error and it is hereby overruled. Accordingly, we affirm the 

judgment of the trial court. 
Highland App. No. 16CA9 37

JUDGMENT AFFIRMED. 
Highland App. No. 16CA9 38

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and costs be 

assessed to Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Highland 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 BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

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

Rule 27 of the Rules of Appellate Procedure. 

Hoover, J.: Concurs in Judgment and Opinion as to Assignment of Error II; 

 Concurs in Judgment Only as to Assignments of Error I & III. 

Abele, J.: Concurs in Judgment Only. 

For the Court, 

 BY: ______________________________ 

 Matthew W. McFarland, Judge 

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.