[Cite as State v. Collins, 2014-Ohio-4224.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

PICKAWAY COUNTY 

STATE OF OHIO, : 

 : 

Plaintiff-Appellee, : 

 : Case No. 13CA27 

v. : 

 : DECISION AND 

BRITTANY N. COLLINS, : JUDGMENT ENTRY

 : 

Defendant-Appellant. : Released: 09/23/2014 

 

APPEARANCES:

Loribeth Kowalski, Circleville, Ohio for Appellant. 

Judy C. Wolford, Pickaway County Prosecutor, Circleville, Ohio for Appellee. 

 

Hoover, J.: 

 {¶ 1} Appellant Brittany N. Collins appeals her conviction and sentence from the 

Pickaway County Court of Common Pleas. A jury found Collins guilty of, among other things, 

two counts of Aggravated Robbery and one count of Complicity to Robbery. The trial court 

sentenced Collins to five years in prison on each count of Aggravated Robbery and twelve 

months for the count of Complicity. The trial court ordered the terms to be served consecutively 

for an aggregate term of ten years and twelve months in prison. Here on appeal, Collins argues 

that her constitutional right to due process was violated by improper eyewitness identification 

procedures. She also contends that the trial court failed to make the required findings to support 

the imposition of consecutive sentences. Lastly, Collins asserts that her defense counsel was 

ineffective for failing to object to these errors. 

 {¶ 2} In July 2012, a series of three robberies occurred in Pickaway County. The first 

took place at the 56 Mini Mart, where Miriam Brumfield was working. A female, wearing all 
Pickaway App. No. 13CA27 2 

black clothing, a hat, and sunglasses entered the store and demanded money from Brumfield’s 

cash drawer. Brumfield complied and handed over the money. The female then instructed 

Brumfield to go to the bathroom and count to 100. 

 {¶ 3} A second robbery occurred two days later at the Tarlton Market. A female again 

wearing all black clothing, a hat, and sunglasses entered the store. The female spoke to an 

employee at the store, Cody Smith. The female showed Smith a gun in her waistband and 

demanded money. Smith complied and handed the female the money from the cash drawer. The 

female again told Smith and another employee to go to the bathroom and lock the doors. 

 {¶ 4} Two days after the second robbery, Darci Leaker, an employee of 56 Mini Mart, 

observed a female enter the 56 Mini Mart wearing basketball shorts and a tank top. Leaker took 

notice of the female’s numerous tattoos, her teeth, and her nails. Leaker described the female’s 

nails as being chewed really short. Leaker saw the female exit the store and get into the 

passenger side of a silver four door Chevrolet Cobalt. Leaker noticed damage to the right side of 

the vehicle. Based on the surveillance video she viewed from the robbery, Leaker believed the 

female was the one who robbed the store four days earlier. 

 {¶ 5} Leaker called the sheriff’s department, reported that the girl who robbed the store a 

few days earlier was there and just left in a Chevrolet Cobalt. Next, Leaker walked outside to 

smoke a cigarette when a man walked up to her and demanded she get off the phone and give 

him everything out of the cash drawer. After she complied, the man demanded she go into the 

bathroom. Leaker testified that the robbery took place within two minutes of the girl leaving. 

 {¶ 6} Detective John Strawser handled all three robbery investigations. After each 

robbery, he collected statements, evidence, and reviewed the stores’ surveillance videos. 

Detective Strawser sent the best images from a surveillance video, showing the Cobalt and the 
Pickaway App. No. 13CA27 3 

female, to Central Ohio Investigators Network (COIN). Detective Strawser identified similarities 

between the first two robberies such as the female suspect’s clothes, hat, sunglasses, body type 

and how each of the employees were told to go to the bathroom. The department contacted local 

papers and crime stoppers, offering a $2,000 reward for information relating to the robberies. An 

anonymous tip led Detective Strawser to investigate the Facebook page of Brittany Guess, the 

appellant here, but listed with a different last name. 

 {¶ 7} Next, Detective Strawser, another detective, and members of the Sheriff’s 

department traveled to an apartment complex, where they spoke to the complex’s manager. 

Detective Strawser learned the address of Collins’s father, Charles Guess. Upon arrival at the 

address, near Logan Ohio, they noticed appellant Brittany Collins getting out of a silver 

Chevrolet Cobalt, matching the vehicle in the images from the surveillance photos. Law 

enforcement advised Collins of her Miranda rights. Detective Strawser obtained signed waivers 

from Brittany Collins and an agreement to search without a warrant from her father Charles 

Guess. 

 {¶ 8} Detective Strawser took pictures of Collins, along with focused shots of her tattoos 

and teeth. The detectives also investigated a few hats given to them by Charles Guess. Detective 

Strawser photographed a hat that was later identified by eyewitnesses Brumfield and Smith as 

the hat worn by the perpetrator during the robberies. A few days later, an arrest warrant was 

issued for appellant Collins. 

 {¶ 9} At trial, the State presented the eyewitnesses from the first two robberies, 

Brumfield and Smith. During their testimonies, both witnesses provided a similar description of 

the robber and identified Collins as the perpetrator of the robberies. They were not shown or 

involved in any pretrial identification procedure such as a photo array or a traditional lineup. 
Pickaway App. No. 13CA27 4 

Collins’s trial counsel did not object to the in-court identifications or file a motion to suppress 

their testimony. 

 {¶ 10} After the trial concluded, the jury found Collins to be guilty of the following 

offenses: Count One, Aggravated Robbery, a first degree felony, in violation of R.C. 

2911.01(A)(1); Count 2, Theft, a first degree misdemeanor, in violation of R.C. 2913.02(A)(4); 

Count 3, Aggravated Robbery, a first degree felony, in violation of R.C. 2911.01(A)(1); Count 4, 

Grand Theft, a third degree felony, in violation of R.C. 2913.02(A)(4); Count 5, Complicity to 

Robbery, a third degree felony, in violation of R.C. 2923.03(A)(2); Count 6, Complicity to Theft, 

a first degree misdemeanor in violation of R.C. 2923.03(A)(2). After merging Counts 2, 3, and 6, 

the trial court sentenced Collins to five years in prison for Counts 1and 2 and twelve months for 

Count 5. The court ordered the sentences to be served consecutively to one another for a total of 

ten years and twelve months. Collins then timely filed this appeal. 

 {¶ 11} We will address Collins’s first and third assignments of error, before discussing 

Collins’s second, fourth and fifth assignments of error, which all concern ineffective assistance 

of counsel arguments. 

Appellant’s First Assignment of Error: 

IN VIOLATION OF DUE PROCESS, MS. COLLINS WAS IDENTIFIED BY 

THE KEY EYEWITNESSES WHILE THE STATE WAS USING 

IDENTIFICATION PROCEDURES THAT WERE UNNECESSARILY 

SUGGESTIVE 

 {¶ 12} In her first assignment of error, Collins argues that the State’s identification 

procedures involving witnesses Miriam Brumfield and Cody Smith were unnecessarily 
Pickaway App. No. 13CA27 5 

suggestive. Collins argues that these eyewitness identifications deprived her of the constitutional 

right to due process of law; and thus her conviction must be reserved. 

{¶ 13} Initially, we note that Collins failed to object to the identification testimony of 

either Brumfield or Smith. Collins also failed to file a motion to suppress the identification 

evidence. Thus, we can recognize the error only if it constitutes plain error. “To constitute plain 

error, a reviewing court must find (1) an error in the proceedings, (2) the error must be a plain, 

obvious or clear defect in the trial proceedings, and (3) the error must have affected ‘substantial 

rights’ (i.e., the trial court’s error must have affected the trial’s outcome).” State v. Dickess, 174 

Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 31 (4th Dist.), citing State v. Hill, 92 Ohio 

St.3d 191, 749 N.E.2d 274 (2001), and State v Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 

N.E.2d 1240. “Furthermore, notice of plain error must be taken with the utmost caution, under 

exceptional circumstances, and only to prevent a manifest miscarriage of justice.” Id., citing 

State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), and State v. Long, 53 Ohio 

St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “A reviewing court should 

notice plain error only if the error seriously affects the fairness, integrity, or public reputation of 

judicial proceedings.” Id. 

{¶ 14} Generally, a trial court must suppress a pretrial identification of a suspect if the 

confrontation was unnecessarily suggestive of the suspect's guilt and the identification was 

unreliable under the circumstances. State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 

(1992); State v. Bell, 1st Dist. Hamilton No. C030726, 2004-Ohio-3621, ¶ 16. Suggestive 

identification procedures are unreliable if they create a substantial likelihood of 

misidentification. Waddy at 439, 588 N.E.2d 819; State v. Smith, 1st Dist. Hamilton Nos. C–

080712 and C–090505, 2009–Ohio–6932, ¶ 16. Ohio courts employ a two-part test to evaluate 
Pickaway App. No. 13CA27 6 

the admissibility of an eyewitness identification. State v. Gavin, 197 Ohio App.3d 453, 462, 

2011-Ohio-6617, 967 N.E.2d 1277 (4th Dist.). “[T]he first question is whether the identification 

procedure was unnecessarily suggestive.” State v. Mount, 4th Dist. Ross No. 11CA3297, 2012-

Ohio-4119, ¶ 7. “[I]f the procedure is deemed unnecessarily suggestive, the next question 

becomes whether the identification was unreliable under the totality of the circumstances, i.e. 

whether the suggestive procedure created a ‘very substantial likelihood of misidentification.’ ” 

Id. quoting Garvin at ¶ 25, quoting Waddy at 439. 

{¶ 15} The defendant bears the burden of proving both prongs of the test. Manson v. 

Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Smith, 1st Dist. 

Hamilton Nos. C080712 and C090505, 2009-Ohio-6932, ¶ 16. “The factors to consider in 

determining reliability include: ‘* * * (1) the witness's opportunity to view * * * the defendant 

during the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior 

description of the suspect, (4) the witness's certainty, and (5) the time elapsed between the crime 

and the identification.’ ” State v. Thompson, 4th Dist. Vinton No. 12CA688, 2013-Ohio-2235, ¶ 

14 quoting Garvin at ¶ 25; Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 

(1972). 

{¶ 16} The State admits, and we agree, that the first prong of the test is met simply by the 

nature of the proceeding. An in-court identification typically occurs under circumstances which 

suggest the identity of the defendant. State v. Monford, 190 Ohio App.3d 35, 54, 940 N.E.2d 634 

(10th Dist.2010). See also State v. Mikolaj, 7th Dist. Mahoning No. 05MA157, 2007-Ohio-1563, 

¶ 13; State v. Johnson, 163 Ohio App.3d 132, 2005-Ohio-4243, 836 N.E.2d 1243, ¶ 55. In this 

case, there were no pretrial lineups or photo arrays. Brumfield first identified Collins as the 

offender at a pretrial hearing, and again during the actual trial. Smith identified Collins as the 
Pickaway App. No. 13CA27 7 

perpetrator in court after viewing her picture in a local newspaper for being arrested and accused 

of committing the subject crimes. During direct examination of both witnesses, the State 

presented photo exhibits of the items recovered at Collins’s residence, such as the hat, a picture 

depicting Collins’s face and teeth, pictures of Collins’s tattoos, and pictures from the stores’ 

video surveillance. 

{¶ 17} Brumfield described the perpetrator’s appearance as a female with yellowed teeth 

and chewed fingernails wearing dark clothing, sunglasses, and a hat. Brumfield identified the hat 

and teeth, depicted in the State’s photos of Collins, as belonging to the perpetrator she 

encountered during the robbery. Smith described the perpetrator as wearing all black clothing, a 

black hat with camouflage on it, and sunglasses. The State asked Smith if he could identify the 

person who robbed him that evening. Smith identified Collins as the perpetrator. Smith cited 

Collins’s cheekbones, chin and skin tone as the attributes he recognized. 

{¶ 18} Now we must determine the reliability of the two witness’s identification to 

determine whether a substantial likelihood of misidentification existed. Mount, supra, at ¶ 7. The 

reliability of Brumfield’s identification is evaluated by the aforementioned five factors. For the 

first factor, the witness’s opportunity to view the defendant, the evidence demonstrates that 

Brumfield and the perpetrator had a face-to-face interaction, across the store’s counter as the 

robbery transpired. Brumfield believed that Collins was in the store the day prior to the robbery. 

Brumfield testified that two of Collins’s tattoos, depicted in State exhibits, matched tattoos she 

saw on a woman who was in the store a day earlier. Brumfield also explained that she recognized 

the robber’s teeth from the person who was in the store a day before. Brumfield told Detective 

Strawser that the female she saw before had a flowered tattoo on her back and a tattoo on her 

forearm. 
Pickaway App. No. 13CA27 8 

{¶ 19} For the second factor, the witness’s degree of attention, Brumfield testified to the 

perpetrator’s physical characteristics such as the female’s build, her teeth, and her fingernails. 

Brumfield also described the perpetrator’s clothing and identified the hat that was photographed 

at Collins’s residence as the one worn by the robber. For the third factor, the accuracy of the 

description, captured images from the store’s video surveillance were presented as evidence. The 

images show the perpetrator clothed in all black and wearing a hat similar to the one depicted in 

the State’s exhibit. 

{¶ 20} For the fourth factor, the witness’s level of certainty, Brumfield maintained a 

strong conviction that Collins was the one who robbed the store. Lastly, we must consider the 

amount of time between the crime and the identification. This factor weighs more favorably for 

Collins since it was not until a pretrial hearing that Brumfield identified Collins as the offender. 

As mentioned numerous times before, no investigatory photo array or lineup took place. 

{¶ 21} Given these facts, we conclude that Brumfield’s identification was not unreliable 

under the totality of the circumstances; thus the procedure did not create a “substantial likelihood 

of misidentification.” Mount, supra, at ¶ 7. Pursuant to our plain error standard of review, we do 

not find that Brumfield’s identification affected the fairness, integrity, or public reputation of 

judicial proceedings. The trial court did not violate Collins’s rights to due process when it 

allowed Brumfield to testify and identify her as the offender. 

{¶ 22} We must also evaluate Cody Smith’s identification of Collins as the robber of the 

store where he was working on July 24, 2012. Like the identification made by Brumfield, Smith 

did not pick Collins out of a photo array or lineup, but identified her at trial. Smith came forward 

to testify based largely upon his involvement with the robbery but also because he saw a photo of 
Pickaway App. No. 13CA27 9 

Collins in a local newspaper after she had been arrested on suspicion that she committed the 

robbery. 

{¶ 23} Smith described the woman who entered the store as: “dressed in all black, long 

sleeves, and has a hat on, it was black, it has some camo on it, and sunglasses, and its night 

time.” Smith testified that he and the woman had a conversation that ended when she showed 

him a gun in her waistband, demanding the money from his register. Smith also testified that the 

person had her hair tucked under her hat but he could see some blonde hair poking out. Smith 

identified Collins as the person who robbed the store, stating that although the robber kept her 

sunglasses on the entire time, he recognized Collins’s cheek bones, chin and skin tone. 

{¶ 24} Like the identification by Brumfield, Smith’s identification occurred under 

circumstances suggesting the identity of the offender. Therefore, the first prong of the 

identification admissibility test is met, as the identification was unnecessarily suggestive. By 

employing the five factors previously cited, we must determine the reliability under the totality 

of the circumstances of Smith’s identification. 

{¶ 25} First, Smith’s interaction with the perpetrator was face to face, across the store’s 

counter for approximately five minutes. Like Brumfield, Smith testified regarding the offender’s 

clothing and the hat she wore during the robbery. Smith described the perpetrator as having her 

hair tucked under her hat, but “some blond was poking out from the hat.” Defense counsel 

questioned Smith’s description of her hair color, claiming Collins’s hair is actually brown. 

Pictures of Collins, entered as exhibits, depicted her as a brunette. During his direct examination, 

Smith did not express any doubts in his identification of Collins. However, during cross 

examination, Collins’s trial counsel asked Smith: “Would it be concerning because she [Collins] 
Pickaway App. No. 13CA27 10 

doesn’t have blond highlights?” Smith responded: “A little bit.” Lastly, as with Brumfield’s incourt identification, it came at a significantly later time after the crime was committed. 

{¶ 26} Collins points out that Smith identified her only after seeing her picture in the 

local paper, after she was charged with the robberies. Smith admitted as much on crossexamination stating: “When I saw the picture in the Circleville Herald as the one being caught, I 

could tell it was her.” However, if no state action was involved in the pretrial exposure to a 

newscast showing the defendant's picture, any suggestiveness goes to the weight and credibility 

of the witness's testimony, not to its admissibility, and is best addressed on cross examination. 

State v. Fuller, 7th Dist. Mahoing No. 12MA185 , 2014-Ohio-1351, ¶ 14; State v. Ware, 10th 

Dist. Franklin No. 00AP43, 2004-Ohio-6984, ¶ 55; Monford, 190 Ohio App.3d 35, 2010-Ohio4732, 940 N.E.2d 634 (10th Dist.) at ¶ 55. 

{¶ 27} Here, Collins’s trial counsel addressed the newspaper on cross-examination. 

Therefore, Collins’s trial counsel was afforded the opportunity to impeach the credibility of 

Smith’s identification in front of the jury. We again conclude that Smith’s identification was not 

unreliable under the totality of the circumstances; thus the identification did not result in a 

“substantial likelihood of misidentification.” Mount, supra, at ¶ 7. Since we have found no plain 

error in the identifications of Collins by Brumfield or Smith, we overrule Collin’s first 

assignment of error. 

Appellant’s Third Assignment of Error 

THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES 

IN VIOLATION OF OHIO REVISED CODE 2929.14(C)(4) AND 2929.41(A), 

EFFECTIVE SEPTEMBER 30, 2011, WHICH REQUIRES JUDICIAL FACT 

FINDING TO ESTABLISH A FOUNDATION FOR A CONSECUTIVE 
Pickaway App. No. 13CA27 11 

SENTENCE AND THUS TO PROVIDE APPELLATE REVIEW OF SAID 

SENTENCE 

{¶ 28} In her third assignment of error, Collins argues that the trial court failed to identify 

the findings required in R.C. 2929.14(C), namely that consecutive sentences are not 

disproportionate to the seriousness of the offender’s conduct and that consecutive sentences are 

not disproportionate to the danger the offender poses to the public. 

{¶ 29} We review a felony sentence under the standard found in R.C. 2953.08(G)(2). 

State v. Bever, 4th Dist. Washington No. 13CA21, 2014-Ohio-600, ¶ 13; State v. Baker, 4th Dist. 

Athens No. 13CA18, 2014-Ohio-1967, ¶ 25. R.C. 2953.08(G)(2) provides two grounds for an 

appellate court to overturn the imposition of consecutive sentences: (1) the appellate court, upon 

its review, clearly and convincingly finds that “the record does not support the sentencing court's 

findings” under R.C. 2929.14(C)(4); or (2) the sentence is otherwise clearly and convincingly 

contrary to law. The appellate court's standard of review is not whether the sentencing court 

abused its discretion. See Bever at ¶ 14; R.C. 2953.08(G)(2). 

{¶ 30} R.C. 2929.14(C)(4) sets forth certain findings that a trial court must make prior to 

imposing consecutive sentences. Bever at ¶ 15. State v. Black, 4th Dist. Ross No. 12CA3327, 

2013-Ohio-2105, ¶¶ 56-57. That is, under Ohio law, unless the sentencing court makes the 

required findings set forth in R.C. 2929.14(C)(4), there is a presumption that sentences are to run 

concurrently. Id.

{¶ 31} Under R.C. 2929.14(C)(4), a sentencing court must engage in a three-step analysis 

and make certain findings before imposing consecutive sentences. Black at ¶ 57; State v. Clay,

4th Dist. Lawrence No. 1 1CA23, 2013-Ohio-4649, ¶ 64; State v. Howze, 10th Dist. Franklin 

Nos. 13AP386 & 13AP387, 2013-Ohio-4800, ¶ 18. Specifically, the sentencing court must find 
Pickaway App. No. 13CA27 12 

that (1) “the consecutive service is necessary to protect the public from future crime or to punish 

the offender”; (2) “consecutive sentences are not disproportionate to the seriousness of the 

offender's conduct and to the danger the offender poses to the public”; and (3) one of the 

following: 

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed pursuant 

to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one or more 

courses of conduct, and the harm caused by two or more of the multiple offenses 

so committed was so great or unusual that no single prison term for any of the 

offenses committed as part of any of the courses of conduct adequately reflects 

the seriousness of the offender's conduct. 

(c) The offender's history of criminal conduct demonstrates that consecutive 

sentences are necessary to protect the public from future crime by the offender. 

R.C. 2929.14(C)(4). 

{¶ 32} The Supreme Court of Ohio recently settled the issue of when and where 

the trial court must state the required findings in order to sentence an offender to 

consecutive sentences: 

When imposing consecutive sentences, a trial court must state the required 

findings as part of the sentencing hearing, and by doing so it affords notice to the 

offender and to defense counsel. See Crim.R. 32(A)(4). And because a court 

speaks through it journal, State v. Brooks, 113 Ohio St.3d 199, 2007-Ohio-1533, 
Pickaway App. No. 13CA27 13 

863 N.E.2d 1024, ¶ 47, the court should also incorporate its statutory findings in 

the sentencing entry. 

State v. Bonnell, Slip Opinion, No. 2014-Ohio-3177, ¶ 29. 

While the sentencing court is required to make these findings, it is not required to give reasons 

explaining the findings. Id. at ¶ 27; Howze at ¶ 18; State v. Stamper, 12th Dist. Butler No. 

CA201208166, 2013-Ohio-5669, ¶ 23. Furthermore, the sentencing court is not required to recite 

“a word-for-word recitation of the language of the statute.” Bonnell at 29. “[A]s long as the 

reviewing court can discern that the trial court engaged in the correct analysis and can determine 

that the record contains evidence to support the findings, consecutive sentences should be 

upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a consecutive 

sentence contrary to law. Bonnell at ¶ 34; Stamper at ¶ 23; State v. Nia, 8th Dist. Cuyahoga No. 

99387, 2013–Ohio–5424, ¶ 22. The findings required by the statute must be separate and distinct 

findings; in addition to any findings relating to the purposes and goals of criminal sentencing. 

Nia at ¶ 22. 

 {¶ 33} Here the trial court made the following statements at the sentencing hearing: 

THE COURT: THE COURT MAKES A FINDING THAT BASED ON THE 

CONDUCT OF THE DEFENDANT AND THE SERIOUSNESS OF THESE 

OFFENSES, ARE CONSECUTIVE SENTENCES, AND IS NECESSARY TO 

PROTECT THE PUBLIC FROM FUTURE CRIME AND TO ADEQUATELY 

PUNISH THE OFFENDER, MISS COLLINS. 

THE COURT ALSO FINDS THAT AT LEAST TWO OF THE MULTIPLE 

OFFENSES WERE COMMITTED AS PART OF ONE OR MORE COURSES 

OF CONDUCT AND THE HARM CAUSED BY TWO OR MORE OF 
Pickaway App. No. 13CA27 14 

MULTIPLE OFFENSES SO COMMITTED WAS SO GREAT OR UNUSUAL 

THAT NO SINGLE PRISON TERM FOR ANY OF THE OFFENSES 

COMMITTED AS PART OF ANY OF THE COURSE OF CONDUCT 

ADEQUATELY REFLECTS THE SERIOUSNESS OF THE OFFENDER’S 

CONDUCT. 

It is clear from these statements that the court made two of the three required findings. In the first 

paragraph of the above-cited text, the court found “the consecutive service is necessary to protect 

the public from future crime or to punish the offender.” The court also included, verbatim, one of 

the three findings (great or unusual harm) from R.C. 2929.14(C)(4)(a)-(c). 

{¶ 34} However, the court does not recite verbatim the finding that “consecutive 

sentences are not disproportionate to the seriousness of the offender's conduct and to the danger 

the offender poses to the public.” In the first sentence of the above-cited text, the court references 

the defendant’s conduct and the seriousness of the offenses, but there is no finding that the 

issuance of consecutive sentences is not disproportionate considering those two details. It 

appears the trial court may have incorrectly spoke or some confusion arose considering the 

language of the first paragraph. 

{¶ 35} We are aware that the law does not require the trial court to have a “word-forword recitation of the language of the statute,” but there still remains an omission of a finding 

based upon the sentence and its disproportionality with the defendant’s conduct and the danger 

the defendant poses to the public. Bonnell, supra at ¶ 29. Also, we are aware that the trial court’s 

Entry of Sentence, time stamped November 6, 2013, adequately expresses all the correct and 

necessary findings for the imposition to consecutive sentences. 

 {¶ 36} However, the trial court must make the findings mandated by R.C. 2929.14(C)(4) 
Pickaway App. No. 13CA27 15 

at the sentencing hearing and also incorporate those findings in its sentencing entry. Bonnell, 

2014-Ohio-3177 at ¶ 29. Here, we cannot discern from the sentencing hearing transcript that the 

trial court addressed the proportionality of consecutive sentences to the seriousness of Collins’s 

conduct and the danger she posed to the public. See Bonnell at ¶ 33. Accordingly, we must 

sustain Collins’s third assignment of error and remand this case to the trial court so it can make 

the necessary findings to impose consecutive sentences. 

Appellant’s Second Assignment of Error: 

TRIAL COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE 

ASSISTANCE WHEN HE FAILED TO OBJECT TO THE EYEWITNESS 

IDENTIFICATIONS OR REQUEST JURY INSTRUCTION CONCERNING 

THE UNRELIABILITY OF IDENTIFICATIONS. 

Appellant’s Fourth Assignment of Error: 

TRIAL COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE 

ASSISTANCE WHEN HE FAILED TO OBJECT TO THE TRIAL COURT’S 

ERRONEOUS IMPOSITION OF CONSECUTIVE SENTENCES. 

Appellant’s Fifth Assignment of Error: 

THE CUMULATIVE EFFECT OF THE ERRORS MADE BY TRIAL 

COUNSEL DENIED MS. COLLINS HER CONSTITUTIONAL RIGHT TO 

THE EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL. 

 {¶ 37} We will address Collins’s ineffective assistances assignments of error one at a 

time. To establish constitutionally ineffective assistance of counsel, a 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 
Pickaway App. No. 13CA27 16 

S.Ct. 2052, 80 L.Ed.2d 674 (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). “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.” 

(Citations omitted.) 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. Therefore, if one element is dispositive, a court need not 

analyze both. See Madrigal, 87 Ohio St.3d at 389, 721 N.E.2d 52 (stating that a defendant’s 

failure to satisfy one of the elements “negates a court’s need to consider the other.”). In Ohio, 

there is a presumption that a properly licensed attorney is competent. State v. Calhoun, 86 Ohio 

St.3d 279, 289, 714 N.E.2d 905 (1999). 

{¶ 38} In her first assignment of error, Collins argues that her trial counsel failed to 

object to the eyewitness identification or request special jury instructions concerning eyewitness 

reliability. Collins contends these errors constituted ineffective assistance of counsel. 

{¶ 39} First, in our discussion regarding Collins’s first assignment of error, we 

determined that the in-court identifications were not unreliable as to result in a substantial 

likelihood of misidentification. Therefore, Collins cannot prove that if her trial counsel had 

objected to the identifications, the outcome would have been different. This argument then fails 

under the second prong of the Strickland test. We are aware that the “clearly would have been 

different” language used in plain error analysis establishes a slightly greater burden than the 

“reasonable probability” language used in evaluating ineffective assistance claims. Nonetheless, 

we conclude that Collins has still failed to prove the outcome would have been different. 
Pickaway App. No. 13CA27 17 

{¶ 40} Second, Collins argues that her trial counsel should have requested a special jury 

instruction regarding the unreliability of eyewitnesses. Collins specifically cites to the decision 

of United States v. Telfaire, 469 F.2d 552, 558-559, (D.C.Cir.1972). The Telfaire instruction 

instructs the jury to consider, inter alia, “the capacity and opportunity of the witness to observe 

the defendant; the identification being or not being the product of the witness's own recollection, 

given the strength of the identification and the circumstances under which it was made; the 

inconsistent identifications that may have been made by the witness; and the general credibility 

of the witness. State v. Witherspoon, 8th Dist. Cuyahoga No. 94475, 2011-Ohio-704, ¶ 23 citing 

State v. Guster, 66 Ohio St.2d 266, 268, 421 N.E.2d 157, fn. 1 (1981).

{¶ 41} According to the Supreme Court of Ohio, the legal standard for the inclusion of 

the instruction is as follows: 

The determination of whether a cautionary instruction of the type in question 

should be given will, therefore, depend in large measure on whether a resolution 

by the jury of the disputed issues in the case requires or will be clearly assisted by 

the instruction. It is obvious that such determination cannot be directed by a 

general rule, but must be decided upon the particular facts of the case by the 

exercise of sound discretion. 

Guster at 271. 

{¶ 42} Here, the trial court did give a general instruction regarding the credibility of 

witnesses, specifically stating: 

TO DETERMINE THE CREDIBILITY OF WITNESSES, YOU WILL APPLY 

THE TESTS OF TRUTHFULNESS THAT YOU ARE ACCUSTOMED TO 

APPLY IN YOUR DAILY LIVES. 
Pickaway App. No. 13CA27 18 

YOU MAY CONSIDER THE APPEARANCE OF THE WITNESSES UPON 

THE STAND; THE MANNER OF TESTIFYING; THE REASONABLENESS 

OF THE TESTIMONY; THE OPPORTUNITY EACH WITNESS HAD TO SEE, 

HEAR, AND KNOW THE THINGS CONCERNING WHICH HE OR SHE 

TESTIFIED; ACCURACY OF MEMORY; FRANKNESS OR LACK OF IT; 

INTELLIGENCE, INTEREST, AND BIAS, IF ANY; TOGETHER WITH ALL 

THE FACTS AND CIRCUMSTANCES SURROUNDING THE TESTIMONY. 

APPLYING THESE TESTS, YOU WILL ASSIGN TO EACH WITNESS SUCH 

WEIGHT AS YOU DEEM PROPER 

{¶ 43} Once again referring back to our discussion regarding the testimony of Brumfield 

and Smith, we did not find the in-court identifications unreliable. The facts here do not 

demonstrate a level of confusing or conflicting eyewitness statements leading a court to decide 

that the special instruction should have been given. See e.g. State v. Dale, 3 Ohio App.3d 431, 

434, 445 N.E.2d 1137 (1982). The jury instruction as given did inform the jury how to evaluate 

witness credibility. We do not find that the facts of this case presented a situation where the 

special instruction would have resulted in a different outcome to the case’s disposition. 

Therefore, we cannot find that Collins’s trial counsel was ineffective in failing to request the 

special instruction. We overrule Collins’s second assignment of error. 

{¶ 44} In her fourth assignment of error, Collins argues that her trial counsel was 

ineffective when he failed to timely object to the trial court’s erroneous imposition of 

consecutive sentences. However, due to our decision regarding Collins’s third assignment of 

error that she is entitled to a new sentencing hearing, we find this assignment of error to be 

rendered moot. It is therefore overruled. See App.R. 12(A)(1)(c); State v. Panning, 3rd Dist. Van 
Pickaway App. No. 13CA27 19 

Wert No. 151307, 2014-Ohio-1880, ¶ 18; State v. Clay, 12th Dist. Madison No. CA201112016, 

2012-Ohio-5011, ¶ 31. 

{¶ 45} In her fifth assignment of error, Collins argues that the cumulative effect of her 

trial counsel’s errors resulted in the denial of the constitutional right to effective assistance of 

counsel. “Before we consider whether ‘cumulative errors' are present, we must first find that the 

trial court committed multiple errors.” State v. Wharton, 4th Dist. Ross No. 09CA3132, 2010 

Ohio–4775, at ¶ 46, citing State v. Harrington, 4th Dist. Scioto No. 05CA3038, 2006-Ohio-4388, 

at ¶ 57, citing State v. Goff, 82 Ohio St.3d 123, 140, 694 N.E.2d 916 (1998). 

{¶ 46} Collins contends that the result of counsel’s failures to object to the identification 

procedures, the failure to request the special jury instructions and the failure to object to the 

imposition of consecutive sentences resulted in an unfair trial and sentence. However, as 

previously discussed we do not find that defense counsel’s failure to object to the identification 

procedures or the failure to request the special jury instructions resulted in ineffective assistance 

of counsel. The failure to object to Collins’s sentencing is a moot issue, now that this case will be 

remanded for resentencing. Therefore, we cannot find that the cumulative error doctrine applies 

here. Accordingly, Collins’s fifth assignment of error is overruled. 

 {¶ 47} In conclusion, we overrule Collins’s first, second, fourth and fifth assignments of 

error. We sustain Collins’s third assignment of error, reverse the sentence and remand this cause 

to the trial court for resentencing. 

JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND THE CAUSE REMANDED. 
Pickaway App. No. 13CA27 20 

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART, 

AND CAUSE REMANDED. Appellee shall pay the costs herein taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the Pickaway 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 the proceedings in that court. If a stay is continued 

by this entry, it will terminate at the earliest 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 fortyfive 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 the 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. 

Abele, P.J.: Concurs in Judgment and Opinion. 

McFarland, J.: Concurs in Judgment Only as to Assignments of Error I, II, IV, and V and 

Dissents as to Assignment of Error III. 

 For the Court 

 By: 

 Marie Hoover, 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.