[Cite as State v. Rodriguez, 2015-Ohio-3875.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 101971 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

JOSE RODRIGUEZ 

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-579577-B 

BEFORE: Boyle, J., Kilbane, P.J., and McCormack, J. 

RELEASED AND JOURNALIZED: September 24, 2015
ATTORNEY FOR APPELLANT 

Steve W. Canfil 

55 Public Square 

Suite 2100 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Margaret A. Troia 

 Andrew J. Santoli 

Assistant County Prosecutors 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY J. BOYLE, J.: 

{¶1} Defendant-appellant, Jose Rodriguez, appeals his convictions for 

aggravated murder and aggravated robbery. Finding no merit to the appeal, 

we affirm. 

Procedural History and Facts 

{¶2} In November 2013, Rodriguez (a.k.a. “Leo”), along with 

codefendant Anthony Soto (“Soto”), was indicted on six counts: aggravated 

murder in violation of R.C. 2903.01(B); murder in violation of R.C. 2903.02(B); 

aggravated robbery in violation of R.C. 2911.01(A)(3); robbery in violation of 

R.C. 2911.02(A)(2); and two counts of felonious assault in violation of R.C. 

2903.11(A)(1) and (A)(2). Each of the counts carried a one- and three-year 

firearm specification. 

{¶3} Rodriguez pleaded not guilty to the charges, and the matter 

proceeded to a jury trial where the following evidence was presented. 

Fatal Shooting at Salameh Market; Initial Investigation Goes Cold 

{¶4} On the evening of November 11, 2010, around 10:45 p.m., Nashad 

Atallah was fatally shot in an apparent robbery at the Salameh Market on 

Daisy Avenue in Cleveland, Ohio. According to the medical examiner, Atallah 

died from multiple gunshot wounds to the chest and abdomen with skeletal, 
visceral, vascular, and soft tissue injuries. The medical examiner observed 

that Atallah had three separate gunshot wounds and classified the manner of 

death as “homicide while working.” 

{¶5} Cleveland police recovered three spent 9 mm Luger casings from 

the scene and an empty Lay’s potato chip bag outside of the market. Both 

were submitted for testing but no DNA or other forensic evidence was 

recovered. The witnesses’ statements obtained by police revealed that two 

men with hoodies were seen fleeing from the scene. One witness testified as 

to seeing the perpetrators’ hands when they were running out of the building 

and identified one as Hispanic and the other individual as African-American. 

It was also reported that a blue Chevy Cavalier was seen leaving the area 

following the shooting. The initial investigation did not lead to any suspects, 

and the case eventually went cold. 

Jonathan Lopez Unknowingly Implicates Himself to FBI Informant; 

Investigation Revived 

{¶6} Over a year following the homicide, Cleveland police detective 

Michael Smith, who had been investigating the Daisy Avenue crimes, received 

a telephone call from FBI special agent David Kohut regarding the case. 

According to Special Agent Kohut, an informant had contacted him and 

identified Jonathan Lopez as being involved in the Daisy Avenue crimes. The 

Cleveland police then elicited Special Agent Kohut’s assistance in the 
investigation. Det. Smith testified that, after interviewing the informant and 

following up on his facts, the Cleveland police next conducted an undercover 

operation in May 2012, suiting the informant with a wire and then having him 

meet with Lopez, who owed the informant money for drugs. 

{¶7} Cleveland police listened and recorded the conversation between 

Lopez and the informant while it was taking place. During the recorded 

conversation, Lopez admitted that he was involved in the homicide and 

mentioned Aaron (nicknamed “AT”) as the shooter. Det. Smith testified that 

Lopez knew facts concerning the robbery and shooting that were not public 

knowledge. Lopez specifically mentioned that a struggle ensued with the 

victim, that the victim had been shot three times, and that no money was taken 

— information that had not been broadcast to the public. Lopez, however, 

never mentioned Rodriguez in the recorded conversation with the informant. 

{¶8} Det. Smith spoke with Lopez on July 2, 2012. On the following 

day, Lopez came to the police station and met with both Det. Smith and Special 

Agent Kohut. The interview was cut short because Lopez indicated that he 

had to leave for school; he was supposed to resume the interview later but 

Lopez never returned. Cleveland police arrested Lopez on July 17, 2012. On 

the following day, while represented by counsel, Lopez agreed to an “off-therecord” proffer. Det. Smith testified that Lopez denied any involvement with 

the robbery and shooting; instead, he implicated his first cousin, Rodriguez, 
who he referred to by his nickname, “Leo.” Det. Smith further testified that 

Lopez provided the names of other individuals involved in the shooting, 

including an individual named “Aaron.” Det. Smith testified that, following 

the taking of Lopez’s proffered statement, he did not participate in the followup investigation because he retired from the Cleveland police department and 

transferred jobs. 

{¶9} Special Agent Kohut testified that Lopez’s proffered statement 

also identified other individuals being involved, including Eli Camacho — who 

was later determined to be in prison at the time of the Daisy Avenue offenses, 

“AD” (“Adrian Santiago”), and Jenson Sota. Lopez, however, did not 

mention Anthony Soto. According to Lopez’s proffered statement, he blamed 

his cousin Rodriguez and claimed to have gotten his information from 

Rodriguez. 

{¶10} Lopez was indicted on charges of aggravated robbery and 

aggravated murder in connection with the Daisy Avenue crimes on July 27, 

2012. According to Special Agent Kohut, they went forward with the 

indictment on Lopez, despite his proffered statement pleading innocence 

because they had the recording where he was bragging about committing these 

crimes. Special Agent Kohut testified that the taped recording gave them 

probable cause to arrest Lopez. 
{¶11} The Cleveland police continued with its investigation, even after 

Lopez was indicted. 

Investigation Leads to the Seizure of a Blue Chevy Cavalier tied to 

 Anthony Soto 

{¶12} In September 2012, Detective John Morgan with the Cuyahoga 

County Sheriff’s Office became involved in the investigation after being 

contacted to assist by Special Agent Kohut. Det. Morgan explained that the 

original homicide detectives assigned to the case had retired. Det. Morgan 

testified as to his role in the investigation, beginning with his review of the 

original homicide investigation reports. According to Det. Morgan, he 

reviewed all the statements provided by Lopez and then cross-referenced the 

criminal records of the individuals that Lopez identified, including “AD” — 

Adrian Santiago. Det. Morgan further explained that he had the original 

investigation file pulled involving Santiago’s 2008 conviction for carrying a 

concealed weapon and improperly handling a firearm. The file contained 

information that revealed that a blue, two-door Chevy Cavalier had been 

involved. Det. Morgan testified that this caught his attention because of a 

witness’s statement indicating that two males exited the store, ran, and 

jumped “into a blue Chevy two-door car.” Det. Morgan then retrieved from 

the 2008 investigation file the license plate and VIN number of the blue Chevy 
Cavalier involved in the offense, and ultimately obtained a search warrant to 

confiscate the vehicle. 

{¶13} Det. Morgan testified that, on October 15, 2012, law enforcement 

officials executed the search warrant at the address of Soto’s mother, the 

licensed owner of the vehicle. From Soto’s mother, they learned that her son, 

Soto, was the primary driver of the vehicle in 2010. Soto was present when 

the police executed the search warrant on the vehicle. 

Special Agent Kohut Interviews Rodriguez Regarding Lopez’s 

Allegations 

{¶14} Special Agent Kohut testified that he first interviewed Rodriguez 

on February 27, 2013, when Rodriguez appeared for the trial against Lopez 

that never went forward, and then again on August 6, 2013. During the 

August 2013 interview, Special Agent Kohut played Lopez’s proffered 

statement, paying close attention to Rodriguez’s reaction. According to 

Special Agent Kohut, Rodriguez “smirked a few times, and then he eventually 

laid his head on his hand.” Special Agent Kohut further testified that 

Rodriguez indicated that he was “mad” about his cousin’s allegations and then 

upon further questioning, “his eyes started to tear up, his voice started to get 

high and very low, so there was definitely what I observed, was a definite 

reaction.” 

{¶15} Special Agent Kohut also acknowledged that their investigation 
identified Jose Ortiz as a suspect, who law enforcement learned had been 

contacting potential material witnesses in the case against Lopez. The record 

further revealed that Lopez gave the name of Jose Aaron Ortiz in his proffered 

statement. Special Agent Kohut further acknowledged that he investigated 

whether Lopez’s father, Felix Lopez, Sr., was harassing witnesses in his son’s 

case and testified that he told Felix to leave witnesses alone. 

Soto Provides Proffered Statement Implicating Himself, Rodriguez, and 

James Moore 

{¶16} In September 2013, approximately one year after seizing the blue 

Chevy Cavalier, Det. Morgan learned of Soto’s desire to talk about the homicide 

and robbery that occurred on November 11, 2010. At this time, Soto was not 

under indictment. On October 4, 2013, Soto, while represented by counsel, 

gave a proffered, written statement. Det. Morgan testified that Soto provided 

a handwritten admission of the events that occurred on Daisy Avenue, 

implicating himself, Rodriguez, and James Moore. 

{¶17} Det. Morgan then investigated Soto’s account of the events, 

speaking with various witnesses, including Keith Williams and Mirelsa 

Capeles a.k.a. “Princess.” Princess corroborated Soto’s story that he, 

Rodriguez, and Moore had all been hanging out at her and Keith’s apartment 

on the evening of November 11, 2010. She testified that she heard Rodriguez 
talking to Moore about “robbing a Radio Shack,” to which she told them that 

they were “dumb,” prompting Rodriguez to tell her to mind her own business. 

{¶18} Det. Morgan further testified that, while the case was pending 

against Lopez, Felix (Lopez’s father) directed Det. Morgan to speak with Travis 

Light. Light led the investigation to Isela Vega, who provided a statement 

implicating Rodriguez. 

{¶19} Shortly thereafter, on November 5, 2013, Soto and Rodriguez were 

indicted on the underlying charges, and the case against Lopez was dismissed. 

Following their indictments, Det. Morgan obtained a search warrant for both 

of their cell phone records covering the time period of the Daisy Avenue 

shooting. Det. Morgan testified that the state had not yet indicted Moore, who 

was then at Northcoast Behavioral Healthcare and not competent to stand 

trial. 

Lopez Denies Any Involvement in the Underlying Crimes at Trial 

But Cannot Recall What Rodriguez Told Him About The Daisy 

Avenue Crimes 

{¶20} Prior to trial, the state filed a motion to have Lopez declared an 

adverse witness. Over defense counsel’s objection, the trial court granted the 

motion, and the state called Lopez at trial. 

{¶21} Lopez, age 23 at trial, testified that Rodriguez was his first cousin 

and that prior to November 2010, they had regularly kept in contact, seeing 

each other on the weekends and communicating by text message and phone 
calls. According to Lopez, they maintained a “very close relationship.” 

{¶22} Lopez testified that he had a “cordial conversation” with his cousin 

regarding the Daisy Avenue crimes but could not remember any of the details. 

Lopez acknowledged providing a written, proffered statement to law 

enforcement on July 18, 2012, but could not remember the contents. The 

prosecutor proceeded to read excerpts from Lopez’s statement, including 

references to Lopez stating that Rodriguez told him that “[he] robbed the store 

on Daisy” and that “[he] shot the guy, killed him * * * [Rodriguez] was just 

stressing about the whole situation.” Lopez, however, repeatedly indicated 

that he did not remember. 

{¶23} Lopez also testified that he was not present at the Salameh 

Market on November 11, 2010, despite telling the police in one of his earlier 

statements that he had been. On cross-examination, he further agreed that 

he had indicated in his statement that his cousin “would never really tell me 

anything personal.” 

Codefendant Soto Testifies at Trial and Directly Implicates 

Rodriguez in the Robbery and Murder 

{¶24} Soto testified at trial. At the time of trial, he was 24 years old 

and working as the general manager of Panera in Highland Heights. He 

testified as to the events leading up to the homicide on Daisy Avenue. On that 

evening, he went to Keith’s apartment on Fulton Avenue, where a group of 
people was already hanging out — AD, Moore, and Princess (Keith’s girlfriend 

who lived there). According to Soto, Rodriguez showed up sometime after 

him. Keith left for work around 10:00 p.m. but the rest of them stayed, 

playing cards, smoking, and talking about being “short on cash.” The 

conversation led to “doing a robbery,” and Moore pulled out his gun, showing 

both Rodriguez and Soto. Soto further testified that Rodriguez brought up the 

market on Daisy and then they all discussed robbing that store, prompting the 

three of them to leave and drive to the market. 

{¶25} Soto drove the vehicle, a blue Chevy Cavalier (two-door) and 

parked it in the alley near the market. Soto walked inside the market “to 

check what’s going on in the store,” while Rodriguez and Moore remained in 

the car. Once inside the market, Soto bought a bag of chips and then returned 

to his vehicle and told Rodriguez and Moore that there was only one clerk 

inside. Soto then looped around Daisy one more time and ultimately parked 

between Daisy Avenue and Library Court alley, facing south. Soto turned off 

his lights but left the engine running while Rodriguez and Moore exited the 

car and entered the market store with bandanas covering their faces from the 

nose down. Soto testified that they were running back to his car “two, maybe 

three minutes” later. Once inside the car, Rodriguez was cursing and very 

worked up, asking Moore “why did you shoot the guy?” Moore responded by 

saying, “I had to, he resisted.” 
{¶26} They all three then drove to Taco Bell, where Keith was working. 

They stayed there for maybe ten minutes and then returned to Keith’s 

apartment for another brief amount of time. Soto testified that he then 

headed back toward his mother’s residence, off of West 117th Street, driving 

around first while his mind was racing. He testified that he did not want to 

go home right away. 

{¶27} According to Soto, Rodriguez called him the next morning and told 

him that the clerk died. The news of the clerk’s death put Soto in “selfpreservation mode.” He placed his car on the third floor of the parking garage 

near his work and rode the bus to work. He told his mother that his car “broke 

down.” He “laid low” for a while and stopped hanging out with his normal 

group of friends, including Rodriguez and Keith. 

{¶28} On cross-examination, Soto acknowledged that he believed he was 

in trouble when law enforcement agents came to his house to seize the Chevy 

Cavalier. That encounter prompted him to retain an attorney. Prior to 

giving his proffer statement, he further acknowledged that he believed that he 

had been identified as the driver of the vehicle and that he was concerned about 

a potential life sentence. Soto also admitted on cross-examination that some 

of the facts in his September 5, 2013 statement were false, such as Keith being 

at the apartment with them after the shooting or that they all hung out 

together for a couple of hours following the shooting. Soto testified that he 

was indicted on November 5, 2013, along with Rodriguez, but that he had been 

released on bond by paying $2,500 where Rodriguez was kept on a million 

dollar bond.

Cell Phone Records Place Rodriguez’s and Soto’s Cell Phones in the 

Vicinity of the Salameh Market and Corroborate Soto’s Account 
{¶29} The state also offered the testimony of Todd Wiles, a civilian crime 

analyst with the Cleveland Police Department, who analyzed and mapped the 

cell phone records of Soto and Rodriguez relating to a four-hour period 

beginning on November 11, 2010 at 9:00 p.m. and ending the following morning 

at 1:20 a.m. Wiles testified that the cell phones identified as being used by 

Rodriguez and Soto were both located in the cell tower sector that covered the 

Salameh Market on Daisy Avenue around the time of the crimes. Specifically, 

Wiles identified Rodriguez’s cell phone as being in the Daisy Avenue area at 

10:31 p.m., 10:34 p.m., and 10:42 p.m. and then jumped to 10:46 p.m., 10:47 

p.m., 10:48 p.m., and 11:00 p.m., placing that cell phone in the Fulton, 

Memphis area. 

{¶30} Similarly, records revealed that Soto’s cell phone was utilizing a 

tower at 10:41 p.m. near MetroHealth, which is near Daisy Avenue, and that 

the cell phone was still in that area at 10:42 p.m. At 10:51 p.m., the records 

indicate that Soto’s cell phone had moved away from the sector that covers 

Daisy Avenue and had moved southwest in the area of Fulton and Memphis. 

According to Wiles, at 11:00 p.m., “maps indicating that the cell phones are 

bouncing off the same sectors of the same antenna on the same tower.” At 

11:04 p.m., Soto’s cell phone called Rodriguez’s cell phone and Soto’s cell phone 

started traveling north out of the Memphis, Fulton area. Wiles further 

testified that the two cell phones “appear to be making calls in the same 
general area up until roughly midnight,” but that by 1:00 a.m., Soto’s cell phone 

was in Lakewood and Rodriguez’s cell phone remained in the Detroit-Shoreway 

area. 

{¶31} On cross-examination, Wiles acknowledged that the cell phone 

records cannot pinpoint a person’s exact location; rather, the records can only 

place the phone in a general sector area. He further stated that each sector 

includes a radius spanning from five to 20 blocks and that sometimes a person 

could be in sector A but the call is being connected to sector B. 

Isela Vega Testifies that Rodriguez Confessed to the Shooting 

{¶32} The state called Isela Vega, who reluctantly testified after being 

held in jail for two days on contempt charges for refusing to testify. She 

testified that she was “scared” to testify because she had children. Vega 

testified as to a specific conversation that she had with Rodriguez at her home 

wherein Rodriguez told her that “he went into a store” and “he killed 

somebody.” Vega further testified, however, that she did not remember 

anything more. The state then allowed Vega to read the statement that she 

provided to the police in October 2013 to refresh her memory. After reading 

the statement to herself, Vega testified further that Rodriguez told her that 

the guy that he shot had no money and that he was Arabic. She also stated 

that she “just remembered him asking for something to drink. I don’t know 

what he did with it.” 
{¶33} On cross-examination, Vega admitted that she did not know 

Rodriguez very well and that she had seen him maybe once or twice in her life. 

She further testified that Rodriguez came to her house on Carrington Avenue 

— off of West 130th Street. Vega confirmed that she knew Travis Light, who 

was her daughter’s boyfriend, and that Light was instrumental in having Det. 

Morgan take her statement. Vega, however, denied Light being at her house 

when she encountered Rodriguez and denied any dice game going on there. 

{¶34} Defense counsel further questioned Vega regarding her statement, 

reading excerpts of it relating to her giving Rodriguez a gallon of milk and her 

questioning him why he needed it. In her statement, Vega described 

Rodriguez, fully clothed, pouring a gallon of milk all over himself in the shower 

and that he “told us he wanted to clean the gun stuff off his hands.” In 

response to defense counsel’s question, Vega denied being afraid to testify on 

the grounds that she might be charged with perjury. 

{¶35} Following the state’s presentation of its 26 witnesses, the state 

rested. Rodriguez moved for a Crim.R. 29 acquittal of all the charges, which 

the trial court denied. Rodriguez presented no witnesses on his behalf but 

moved to admit several exhibits, including the subpoenas issued to many of 

the state’s witnesses to appear at trial in the case that had been pending 

against Lopez. 
{¶36} The jury found Rodriguez guilty on all counts of the indictment. 

Following the trial court’s merger of the allied offenses, the state elected to 

proceed on the aggravated murder and aggravated robbery counts for 

sentencing. The trial court imposed a total prison term of 21 years to life. 

{¶37} Rodriguez now appeals, raising the following four assignments of 

error: 

I. The trial court committed plain error in violation of appellant’s 

rights to due process, a fair trial and right of confrontation, in 

violation of the Fifth, Sixth and Fourteenth Amendments to the 

U.S. Constitution in permitting the prosecutor to read into the 

record the unsworn statements of witnesses. 

II. The state’s evidence was insufficient to support appellant’s 

convictions. 

III. Appellant’s convictions are not supported by the manifest 

weight of the evidence. 

IV. Appellant was deprived of his constitutional right to effective 

assistance of trial counsel. 

Admission of Evidence 

{¶38} In his first assignment of error, Rodriguez argues that the trial 

court erred in allowing the prosecutor to read its own witnesses’ unsworn 

statements as substantive evidence against him, in violation of the Rules of 

Evidence. 

{¶39} Rodriguez, however, concedes that his trial counsel did not object 

to the testimony that he now challenges on appeal. Accordingly, we review 
for plain error. Under Crim.R. 52(B), plain errors affecting substantial rights 

may be noticed by an appellate court even though they were not brought to the 

attention of the trial court. To constitute plain error, there must be: (1) an 

error, i.e., a deviation from a legal rule, (2) that is plain or obvious, and (3) that 

affected substantial rights, i.e., affected the outcome of the trial. State v. 

Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Even if the 

error satisfies these prongs, appellate courts are not required to correct the 

error. Appellate courts retain discretion to correct plain errors. Id. Courts 

are to notice plain error under Crim.R. 52(B), “with the utmost caution, under 

exceptional circumstances and only to prevent a manifest miscarriage of 

justice.” (Citation omitted.) Id.

A. Jonathan Lopez

{¶40} Rodriguez first argues that the trial court should not have allowed 

the prosecutor to use Jonathan Lopez’s written, unsworn statement as 

substantive evidence against Rodriguez. He contends that the state (1) failed 

to establish surprise and affirmative damage to warrant the state’s 

impeachment of its own witness with the witness’s unsworn statement as 

required under Evid.R. 607(A), and (2) Lopez was not deemed an adverse 

witness under Evid.R. 611. He further argues that the written statement was 

not admissible as a past recollection recorded under Evid.R. 803(5). 

{¶41} Evid.R. 607 provides that 
The credibility of a witness may be attacked by any party except 

that the credibility of a witness may be attacked by the party 

calling the witness by means of a prior inconsistent statement only 

upon a showing of surprise and affirmative damage. 

{¶42} Evid.R. 611(C) states in pertinent part, “[W]hen a party calls a 

hostile witness, an adverse party, or a witness identified with an adverse party, 

interrogation may be by leading questions.” 

{¶43} Here, even assuming that the prosecutor should not have been 

allowed to read portions of Lopez’s statement, we can neither say this alleged 

error was obvious nor affected the outcome of the proceedings. Rodriguez fails 

to satisfy the plain error standard. First, the record reflects that the trial 

court had declared Lopez an adverse witness prior to his testifying. Thus, 

under Evid.R. 611(C), the state was entitled to ask Lopez leading questions in 

its direct examination of him. See also In re K.S., 8th Dist. Cuyahoga No. 

97343, 2012-Ohio-2388 (recognizing that a prosecutor is entitled to question 

adverse witness on direct using leading questions pursuant to Evid.R. 611(C)). 

{¶44} And while the state was not permitted to impeach Lopez with his 

prior statement to the police without satisfying Evid.R. 607(A) by showing 

surprise and affirmative damage, it is not clear from the record that the 

prosecutor was impeaching Lopez. The record reflects that Lopez initially 

stated that he did not remember what Rodriguez told him. Upon further 

questioning, he stated that his cousin did not tell him any details, prompting 
the prosecutor to inquire about Lopez’s prior, written proffered statement. 

After being shown his statement, Lopez still did not recall any of the details; 

instead, he repeatedly answered the prosecutor’s leading questions by stating, 

“I do not remember.” Lopez never recanted his statement. 

{¶45} Because the bulk of Lopez’s testimony was that he did not 

remember the statements that Rodriguez made regarding the Daisy Avenue 

crimes, it is not entirely obvious if the prosecutor’s reading of the portions of 

the statement was error. This court has previously found no error when a 

prosecutor read portions of an adverse witness’s statement on direct while 

leading the witness to develop his testimony. See State v. Darkenwald, 8th 

Dist. Cuyahoga No. 83440, 2004-Ohio-2693 (recognizing the fine distinction 

between impeaching a witness with a prior inconsistent statement and leading 

an adverse witness to develop testimony consistent with the witness’s prior 

statement). Under those circumstances, such questioning does not invoke 

Evid.R. 607. Id. 

{¶46} Finally, Rodriguez fails to establish how this testimony affected 

the outcome of the trial. The fact that Lopez had implicated Rodriguez was 

known to the jury prior to Lopez even testifying. This information properly 

came in through Det. Smith, who explained the police’s initial investigation. 

Further, Lopez’s statement was proven to contain false allegations and could 

be viewed with grave suspicion given that he was facing an arrest on the 
charges and therefore wanted to deflect the blame. Notably, as emphasized 

by defense counsel at trial, the police did not even believe Lopez’s proffered 

written statement because they indicted him immediately after. We fail to 

see how his statement is so prejudicial to affect the outcome of the trial. 

{¶47} Moreover, the jury heard from Soto, who detailed Rodriguez’s role 

in committing the offenses. Soto’s account expressly implicated himself, 

which he first offered to the police when he was neither under arrest nor 

indictment. Additionally, crucial aspects of Soto’s testimony was corroborated 

by neutral witnesses. For example, Princess and Keith specifically testified 

as to Soto, Rodriguez, and Moore being present at their apartment on the 

evening of November 11, 2010. Princess further testified as to Rodriguez 

talking about doing a robbery and that he specifically told her to be quiet upon 

her commenting that “they were dumb.” The state also offered the evidence 

of the cell phone records that placed both Rodriguez and Soto in the vicinity of 

the Salameh Market on Daisy Avenue during the time period of the offenses 

and corroborated Soto’s account for their whereabouts following the murder. 

Finally, the record reveals that Rodriguez is Hispanic and Moore is AfricanAmerican; their ethnicity matched the description provided by one of the 

witnesses who observed the two perpetrators running from the scene. 
{¶48} Having found no plain error, we need not address the state’s 

contention that the statement would have been admissible pursuant to the 

hearsay exception contained in Evid.R. 803(5) for recorded recollection. 

{¶49} Accordingly, we find no plain error in the prosecutor’s reading of 

Lopez’s unsworn prior written statement. 

B. Isela Vega

{¶50} Rodriguez next argues that the trial court committed plain error 

in allowing the prosecutor to read portions of Isela Vega’s prior written 

statement to impeach her and to improperly use her statement as substantive 

evidence against him. This argument has no merit. 

{¶51} The record reflects that the state did not read any portions of 

Vega’s statement in its direct examination of her. Nor did it attempt to 

impeach her. Instead, the state allowed Vega to silently read over her 

statement to refresh her recollection of the events in question. Conversely, 

defense counsel on cross-examination read excerpts of Vega’s statement as a 

means to impeach her. Thus, neither Evid.R. 607 nor 611 apply here. 

{¶52} On redirect, however, the state asked Vega to read her entire 

response to some of the questions given in the statement as opposed to the 

limited excerpts read by the defense counsel. 

Where, on cross-examination, a witness is impeached by a showing 

of prior statements made by him in a written instrument 

apparently inconsistent with his statements on direct 
examination, reference to other statements in the same document 

used to impeach him is proper for the purpose of rehabilitation, 

where such other statements are consistent with the statements 

made on direct examination or are in explanation of such apparent 

inconsistency and do not serve to inject new issues into the case. 

Shellock v. Klempay, 167 Ohio St. 279, 148 N.E.2d 57 (1958), paragraph two of 

the syllabus. Generally, courts have found that once defense counsel reads a 

statement on direct it opens the door for the prosecutor to read the entire 

statement in rebuttal to rehabilitate the witness. See, e.g., State v. Monroe, 

8th Dist. Cuyahoga No. 94768, 2011-Ohio-3045, ¶ 47; State v. Totarella, 11th 

Dist. Lake No. 2002-L-147, 2004-Ohio-1175, ¶ 47. 

{¶53} While the prosecutor’s reading of additional excerpts from Vega’s 

statement did not rehabilitate her testimony on direct, it does not appear to 

add additional evidence into the record. The responses were cumulative to 

what was either said on direct or read during cross-examination. Any error 

therefore would be harmless, not grounds for reversal and certainly not a 

matter of plain error. 

{¶54} The first assignment of error is overruled. 

Sufficiency of the Evidence 

{¶55} In his second assignment of error, Rodriguez challenges the 

sufficiency of the evidence in the record to support his convictions. He 

contends that the evidence overwhelmingly established the guilt of one person 
— Lopez — and that the only other evidence supporting his conviction was 

either inadmissible or not credible. We find his arguments unpersuasive. 

{¶56} “‘[S]ufficiency’ is a term of art meaning that legal standard which 

is applied to determine whether the case may go to the jury or whether the 

evidence is legally sufficient to support the jury verdict as a matter of law.” 

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), citing 

Black’s Law Dictionary 1433 (6th Ed.1990). When an appellate court reviews 

a record upon a sufficiency challenge, “the relevant inquiry is whether, after 

viewing the evidence in a light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime proven beyond 

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

paragraph two of the syllabus. 

{¶57} Rodriguez was charged with aggravated murder under R.C. 

2903.01(B), which provides 

[n]o person shall purposely cause the death of another * * * while 

committing or attempting to commit, or while fleeing immediately 

after committing or attempting to commit, kidnapping, rape, 

aggravated arson, arson, aggravated robbery, robbery, aggravated 

burglary, burglary, trespass in a habitation when a person is 

present or likely to be present, terrorism, or escape. 

{¶58} He was also charged with aggravated robbery under R.C. 

2911.01(A)(3), which provides that “[n]o person, in attempting or committing a 

theft offense, as defined in section 2913.01 of the Revised Code, * * * shall * * 
* inflict, or attempt to inflict, serious physical harm on another.” 

{¶59} Although Rodriguez couches his argument as a sufficiency 

challenge and cites the governing standard, he does not argue that the state 

failed to present sufficient evidence in regard to any specific element of the 

crimes. Instead, he argues that “without the introduction of the inadmissible 

prior statements of the state’s witnesses, the state presented insufficient 

evidence of [his] guilt.” This argument, however, provides no basis to sustain 

a sufficiency challenge because “a reviewing court must consider all the 

testimony that was before the trial court, whether or not it was properly 

admitted.” In re K.S., 8th Dist. Cuyahoga No. 97343, 2012-Ohio-2388, ¶ 30, 

citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 

25 (recognizing that “when evidence admitted at trial is sufficient to support a 

conviction, but on appeal, some of that evidence is determined to have been 

improperly admitted, the Double Jeopardy Clauses of the United States and 

Ohio Constitutions will not bar retrial”). 

{¶60} To the extent that Rodriguez broadly attacks the integrity of the 

state’s investigation as well as Soto’s testimony, this argument goes to the 

credibility of the witnesses, which is not proper on review for evidentiary 

sufficiency. See State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 

N.E.2d 216, ¶ 79. These arguments go to the manifest weight of the evidence 

that we will address under his third assignment of error. But as for 
Rodriguez’s sufficiency challenge, we find that a rational trier of fact could 

have found the essential elements of the crimes beyond a reasonable doubt 

after viewing the evidence in the light most favorable to the prosecution. 

Indeed, Soto’s testimony directly establishes each element of the offenses. 

{¶61} The second assignment of error is overruled. 

Manifest Weight of the Evidence 

{¶62} In his third assignment of error, Rodriguez argues that his 

conviction is against the manifest weight of the evidence. We disagree. 

{¶63} Unlike sufficiency of the evidence, a challenge to the manifest 

weight of the evidence attacks the credibility of the evidence presented. 

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Because it is a broader 

review, a reviewing court may determine that a judgment of a trial court is 

sustained by sufficient evidence, but nevertheless conclude that the judgment 

is against the weight of the evidence. Id., citing State v. Robinson, 162 Ohio 

St. 486, 487, 124 N.E.2d 148 (1955). 

{¶64} In determining whether a conviction is against the manifest 

weight of the evidence, the court of appeals functions as a “thirteenth juror.” 

Id. In doing so, it must review the entire record, weigh the evidence and all 

reasonable inferences, consider the credibility of witnesses and determine 

“‘whether in resolving conflicts in the evidence, the jury clearly lost its way and 

created such a manifest miscarriage of justice that the conviction must be 
reversed and a new trial ordered.’” Thompkins at 387, quoting State v. 

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Reversing 

a conviction as being against the manifest weight of the evidence and ordering 

a new trial should be reserved for only the “exceptional case in which the 

evidence weighs heavily against the conviction.” Id. 

{¶65} Rodriguez argues that the testimony of the state’s witnesses was 

“contradictory and incredible.” He broadly alleges that Lopez’s father 

corrupted witnesses as a means to exonerate his son and that such evidence 

severely undermined the credibility of the state’s witnesses. He further 

claims that the only credible evidence was Lopez’s secretly recorded 

conversation where Lopez confesses to executing the robbery along with Aaron 

and identifies Aaron as the shooter. We disagree. 

{¶66} Even if the jury agreed with Rodriguez’s claim that Lopez’s father 

“corrupted” the investigation into the Daisy Avenue offenses, this theory only 

discredits the testimony of Vega and Light. These are the only two witnesses 

that are arguably associated with Felix. Light acknowledged Felix contacting 

him and, although Vega denied having contact with Felix, Light brought Vega 

to Det. Morgan. Thus, disregarding these witnesses’ statements, the jury still 

had Soto’s testimony. And we cannot say that the jury lost its way in finding 

Soto credible, especially since the state additionally offered circumstantial 

evidence supporting Soto’s account. 
{¶67} We likewise do not agree that Lopez’s secretly recorded 

conversation trumped all of the state’s other evidence. The circumstances 

surrounding the conversation revealed that Lopez was speaking to his drug 

dealer and essentially bragging about the Daisy Avenue offenses. Although 

Lopez admittedly knew facts about the offenses that were not known to the 

public, the jury obviously believed that Lopez learned this information from 

Rodriguez. The record established that Lopez and Rodriguez were first 

cousins and close friends and in regular contact in November 2010. We do not 

find it so unbelievable that the jury believed that Lopez was lying to his drug 

dealer at the time of the secret recording. 

{¶68} Accordingly, we do not find that this is the exceptional case where 

the evidence weighs heavy against the conviction. 

{¶69} The third assignment of error is overruled. 

Ineffective Assistance of Counsel 

{¶70} In his final assignment of error, Rodriguez argues that he was 

deprived his constitutional right to effective assistance of counsel. We 

disagree. 

{¶71} Reversal of a conviction for ineffective assistance of counsel 

requires a defendant to show that (1) counsel’s performance was deficient, and 

(2) the deficient performance prejudiced the defense. State v. Smith, 89 Ohio 

St.3d 323, 327, 731 N.E.2d 645 (2000), citing Strickland v. Washington, 466 
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense counsel’s 

performance must fall below an objective standard of reasonableness to be 

deficient in terms of ineffective assistance of counsel. See State v. Bradley, 42 

Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Moreover, the defendant must 

show that there exists a reasonable probability that, were it not for counsel’s 

errors, the results of the proceeding would have been different. State v. White, 

82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998). 

{¶72} To establish ineffective assistance of counsel, a defendant must 

show (1) deficient performance by counsel, i.e., performance falling below an 

objective standard of reasonable representation, and (2) prejudice, i.e., a 

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

would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 

694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. 

{¶73} In evaluating a claim of ineffective assistance of counsel, a court 

must give great deference to counsel’s performance. Strickland, 466 U.S. at 

689. “A reviewing court will strongly presume that counsel rendered 

adequate assistance and made all significant decisions in the exercise of 

reasonable professional judgment.” State v. Pawlak, 8th Dist. Cuyahoga No. 

99555, 2014-Ohio-2175, ¶ 69. 

{¶74} Rodriguez argues that his trial counsel was ineffective in failing 
to challenge “seriously improper evidence.” He first broadly attacks the 

admission of “cell phone information,” arguing that some of the cell phone 

information provided was “flawed” and, therefore, the “resulting analysis was 

totally unreliable.” Rodriguez, however, fails to cite any portion of the record 

in support of this sweeping claim. Nor does he offer any authority in support 

of his claim that his trial counsel was deficient. It is not the court’s duty to 

develop and flush out an appellant’s argument. See App.R. 12(A)(2) and 

16(A)(7). 

{¶75} Moreover, our review of the record reveals that, although AT&T 

had initially responded to the state’s subpoena with inaccurate records, that 

mistake was corrected. There is no evidence in the record to support 

Rodriguez’s claim that the analysis of the cell phone records was based on any 

flawed or inaccurate information. We, therefore, cannot agree that the 

defense counsel was deficient in failing to object to the admission of the “cell 

phone information.” 

{¶76} Next, Rodriguez broadly argues that defense counsel should have 

“objected to the flagrant use of unsworn statements as substantive evidence” 

against him. Again, he fails to cite to the record in support of this claim. It 

appears, however, that he is challenging the prosecutor’s questioning of Lopez 

and Vega with the use of their prior unsworn written statement. Defense 

counsel’s decision not to object to the prosecutor’s reading portions of Vega’s 
statement on redirect appears to have been a tactical decision. The testimony 

highlighted how incredible Vega’s testimony seemed. Moreover, the 

testimony was cumulative to other testimony already offered. As for the 

questions asked of Lopez on direct, Rodriguez fails to establish any prejudice. 

Again, Lopez was not a credible witness, which was established by the state’s 

own actions in indicting Lopez after he provided the statement denying all 

involvement and implicating Rodriguez. We cannot agree that a reasonable 

probability exists that, in the absence of this evidence, the jury would not have 

convicted Rodriguez. 

{¶77} Finally, Rodriguez argues that his defense counsel was deficient 

by essentially agreeing “during arguments on his Crim.R. 29 motion for 

acquittal that Anthony Soto’s testimony, alone, could be sufficient to support a 

conviction.” He contends that the testimony of a codefendant alone cannot be 

grounds for a conviction in this case. Rodriguez, however, is wrong. R.C. 

2923.03, which governs complicity, was amended in 1986 and no longer stands 

for the proposition that Rodriguez asserts. Instead, R.C. 2923.03(D) provides 

the following: 

(D) If an alleged accomplice of the defendant testifies against the 

defendant in a case in which the defendant is charged with 

complicity in the commission of or an attempt to commit an offense, 

an attempt to commit an offense, or an offense, the court, when it 

charges the jury, shall state substantially the following: 
“The testimony of an accomplice does not become inadmissible 

because of his complicity, moral turpitude, or self-interest, but the 

admitted or claimed complicity of a witness may affect his 

credibility and make his testimony subject to grave suspicion, and 

require that it be weighed with great caution. 

It is for you, as jurors, in the light of all the facts presented to you 

from the witness stand, to evaluate such testimony and to 

determine its quality and worth or its lack of quality and worth.”

{¶78} And in this case, the record reflects that the trial court provided 

the required jury instruction. 

{¶79} Accordingly, having found no merit to Rodriguez’s ineffective 

assistance of counsel claim, we overrule the fourth assignment of error. 

{¶80} Judgment affirmed. 

It is ordered that appellee recover from appellant 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 common pleas 

court to carry this judgment into execution. The defendant’s conviction having been affirmed, 

any bail pending appeal is terminated. Case remanded to the trial court for execution of 

sentence. 

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

Rules of Appellate Procedure. 

 
 

MARY J. BOYLE, JUDGE 

MARY EILEEN KILBANE, P.J., and 

TIM McCORMACK, J., CONCUR