1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

ROBERT LYTLE, JR., 

Petitioner, : Case No. 2:17-cv-1146 

- vs - Chief Judge Edmund A. Sargus, Jr. 

Magistrate Judge Michael R. Merz 

TIM BUCHANAN,1

 Warden, 

 Noble Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus action under 28 U.S.C. § 2254 was brought by Petitioner Robert Lytle 

with the assistance of counsel and challenges his convictions for robbery in the Franklin County 

Court of Common Pleas. The case is ripe for decision on the Petition (ECF No. 1), the State Court 

Record (ECF No. 4), the Return of Writ (ECF No. 5), and Petitioner’s Reply (ECF No. 10). The 

Magistrate Judge reference was transferred to the undersigned to assist in balancing the Magistrate 

Judge workload in the District. 

Procedural History 

 Respondent quotes the background facts of the case and some of the procedural history 

from the direct appeal decision of the Ohio Tenth District Court of Appeals: 

 

1

 The caption is amended to reflect that Tim Buchanan is the Warden at Noble Correctional Institution and properly 

named as Respondent in this case. 
2 

I. FACTS AND PROCEDURAL HISTORY 

[*P2] Several bar robberies on the south side of Columbus 

committed within a two-day span in January 2014 gave rise to 

appellant's criminal indictment in two cases. In the first case, related 

to the Old Landmark Bar, appellant was indicted on January 23, 

2014 for four counts of robbery pursuant to R.C. 2911.02. Under 

Count 1, the indictment alleged appellant, "in attempting or 

committing a theft offense in respect to Old Landmark Bar, or in 

fleeing immediately after the attempt or offense, did recklessly 

inflict, attempt to inflict, or threaten to inflict physical harm on 

another, to wit: Susan Puckett" on or about January 16, 2014. 

(Emphasis added.) (Old Landmark Bar Case Indictment at 1.) Count 

2 alleged the same conduct, except "in respect to Susan Puckett." 

(Old Landmark Bar Case Indictment at 1.) Counts 3 and 4, alleging 

robbery involving the use or threatened immediate use of force 

against another, were nolled at the request of plaintiff-appellee, 

State of Ohio. 

[*P3] In the second case, related to TK Sports Bar, appellant was 

indicted on April 1, 2014 for four counts of kidnapping, pursuant to 

R.C. 2905.01, and two counts of robbery, pursuant to R.C. 2911.02. 

In pertinent part, Count 5 of the indictment alleged appellant, "in 

attempting or committing a theft offense in respect to TK Sports Bar, 

or in fleeing immediately after the attempt or offense, did recklessly 

inflict, attempt to inflict, or threaten to inflict physical harm on 

another, to wit: Sarah Carter" on or about January 14, 2014. (TK 

Sports Bar Case Indictment at 2-3.) The remaining counts were 

nolled at the request of appellee. 

[*P4] Appellant pled not guilty to the charges, and the cause came 

to trial on July 20, 2015. At the outset of the trial, the judge overruled 

appellant's previously filed motion to suppress photo identifications 

in the TK Sports Bar case due to appellant's allegation of procedure 

violations under R.C. 2933.83. The judge likewise overruled 

appellant's motion to sever trial of the separate cases and 

emphasized he would specifically instruct the jury regarding 

considering each case separately. 

[*P5] The trial commenced, and after opening statements, the judge 

addressed the separate nature of the cases with the jury stating: 

[A]s a matter of law * * * these are separate incidents. You 

are to consider and analyze each separately. Sometimes we 

have cases tried apart, but other times we allow them to be 
3 

together. But we always worry that a jury will say, "Well, 

he was involved in one, he must be involved in the other." 

You've got to analyze each on their own facts. They're 

allowed to make arguments about whether they're similar, 

but I did caution you that you have to decide each case 

separately. 

(Tr. at 46-47.) 

[*P6] The trial resumed, and appellee produced the following 

relevant evidence in its case-in-chief. 

[*P7] Stephanie Christman testified that around 10:30 p.m. on 

Thursday, January 16, 2014, she was at the Old Landmark Bar 

watching a basketball game with her husband, Steve. According to 

Stephanie, a man entered the bar through the back door dressed in a 

grey sweatshirt with the hood up and grey sweatpants and asked the 

bartender for the location of the restroom. A friend of the 

Christmans named Bobby Gray was already in the restroom arguing 

on the phone with his girlfriend, and Stephanie asked her husband 

to check on him. When her husband returned, the man came out of 

the restroom wearing a ski mask and holding a gun. Stephanie 

dropped to the ground behind the bar, while her husband remained 

seated. Stephanie heard the man say to Susan Puckett, the bartender, 

"[g]ive me all of the money, or I'm going to kill you, bitch," then ask 

Puckett for her car keys and what color her car was. (Tr. at 52.) She 

heard scuffling, and when she got up, she saw three men restraining 

the man with the ski mask on the ground. Puckett kicked the gun 

and called 911. 

[*P8] Stephanie testified that she saw the man's face after police 

arrived and removed the ski mask. She identified appellant in the 

courtroom as the man who entered the restroom, exited the restroom 

000.0in a ski mask, and was arrested by police that evening. 

Stephanie recalled that the lighting in the back of the bar was "a little 

dim" but testified that she did not have problems seeing the man or 

the gun, which had a laser light. (Tr. at 53.) Stephanie later learned 

from police that the gun was a fake. Stephanie agreed she had 

consumed alcohol that evening, specifically Bud Light, and did not 

remember how many she consumed but said she did not feel 

inebriated and noted she had to work the next day. On crossexamination, Stephanie agreed she could have had up to eight Bud 

Lights over the course of the three hours she was at the bar watching 

the game. Stephanie additionally agreed that in the written statement 

she made to police after the incident, she did not indicate that the 

man wore a ski mask or that he took Puckett's car keys. 
4 

[*P9] Stephanie's husband, Steve Christman, testified that he 

watched a basketball game at the Old Landmark Bar on the evening 

of January 16, 2014 with his wife, Gray, a person named Doug 

Purcell, a few other people, and bartender Susie Puckett. At his 

wife's prompting, Steve checked on Bobby in the bathroom, and 

observed someone else at the urinal with his hood up. He returned 

and reported everything was okay, but then saw the man come out 

of the bathroom with a ski mask on and point the laser of a gun at 

Puckett's chest while she was at the cash register. According to 

Steve, who said he remained sitting at his bar chair, Puckett gave the 

man with the ski mask the money from the cash register after the 

man threatened to kill her. Steve then heard the man in the mask ask 

Puckett for her car keys and saw Puckett remove a key from her key 

ring and give him the key. Right before the man exited the back 

door, Purcell hit the man with a pool stick, possibly dislodging the 

gun, and Steve and Purcell took the man to the floor, where they 

held him until police arrived. 

[*P10] Although Steve indicated that the lighting in the bar was 

dim, he did not have trouble seeing individuals in the bar. Steve 

further testified that he was able to view the face of the man when 

police stood him up and removed his ski mask and identified 

appellant in the courtroom as that man. Steve agreed he had 

consumed alcohol that evening but testified that his alcohol 

consumption did not affect what he saw or heard that night. 

[*P11] On cross-examination, Steve agreed that he did not know if 

anyone else was in the restroom along with his friend Bobby and the 

man with his hood up but said the restroom only had room for two 

people. He also confirmed that in his written statement to police he 

did not write that the man in the ski mask threatened to kill Puckett. 

[*P12] Doug Purcell testified to being at the Old Landmark Bar on 

the evening of February 16, 2014. While he was at the bar, he saw a 

red dot on Puckett's back and observed a man with a gun wearing a 

"hoodie" and a mask. (Tr. at 125.) According to Purcell, the man 

said "[f]ucking bitch, give me the money" and "[g]ive me your 

money, or I'll kill you," and then asked for Puckett's car keys and 

where her car was located. (Tr. at 122.) Puckett and the man walked 

toward the back door of the bar, and Purcell thought that Puckett 

was going to go outside with him. Purcell hit the man in the back 

with a pool stick and threw him to the ground. Steve assisted him in 

getting the man to the ground, and someone got the gun and kicked 

it on the floor. Purcell thought the man probably was punched and 

kicked in the process. During the confrontation, Purcell recalled 
5 

hearing something like a radio or police scanner coming from the 

man. 

[*P13] Purcell thought that he had two or three alcoholic drinks that 

night, which he believed did not affect his judgment. Purcell 

testified that he was able to view the man's face without the mask on 

and identified appellant in the courtroom as that man. 

[*P14] On cross-examination, Purcell agreed that he had not 

included in his written statement to police that the man wore a ski 

mask, that the man said the threatening words he just testified to 

hearing, or that Purcell hit the man with a pool stick. When 

questioned about his identification of appellant as the assailant, 

Purcell testified that he did not get a good look at the man in the 

mask, reiterated that he did see his face, and thought appellant did 

not look exactly the same as he did on January 16, 2014. Purcell also 

agreed that he had spoken to the Christmans, Gray, and the bartender 

about the situation since the incident happened. 

[*P15] Susan Puckett testified to being present and interacting with 

the purported robber during the incident at the Old Landmark Bar 

on January 16, 2014. Puckett testified that she was familiar with the 

Old Landmark Bar because she "work[s] there." (Tr. at 150.) 

Specifically, Puckett testified that her position at the bar was 

"bartender" in January 2014, but at the time of trial she was "a 

manager there." (Tr. at 150.) At the time of the incident, Puckett 

testified that she was working in the capacity of a bartender. While 

she was bartending, someone wearing a hoodie walked in the back 

door and asked where the bathroom was located. After about five 

minutes, Puckett testified that: 

I guess I turned around, and he was there with a ski mask 

on his face and a gun, demanding that I give him all the 

money in the register and telling me that he would kill me 

if I didn't comply. He stated to give him all of the money 

and not to bullshit him or he would kill me. 

I gave him all the money. He kept saying "all of it." And 

then he asked for my keys, asked me if I had a car, and 

wanted my keys. So I gave him -- I went and got my key 

ring and I took the keys off of -- I took my car key off my 

key ring and handed it to him. 

He asked me where my car was at. I started to go out of the 

building. 

(Tr. at 152.) 
6 

[*P16] At that point, customers tackled the man, and Puckett called 

911 and slid the dislodged gun away from him with her foot. After 

police arrived, Puckett asked to see the man's face to see if she 

recognized him, which she did not. In court, Puckett identified 

appellant as the man who held up the bar. Eventually, all the money 

taken was returned, and Puckett got back her car keys. 

[*P17] On cross-examination, Puckett testified that she and the 

others try not to talk about the incident with each other. Regarding 

other disturbances at the bar, Puckett indicated that "in the four years 

that [she has] been there," only about two other bar fights had 

occurred. (Tr. at 171.) She agreed that in her written statement she 

did not include expletive words used by the assailant when 

demanding the money or that he wore a mask. She thought she told 

the detective about the mask and noted that the man still had the 

mask on when police arrived. 

[*P18] Randall Beam, an officer with the Columbus Division of 

Police, testified to responding to a robbery-in-progress dispatch on 

January 16, 2014 at the Old Landmark Bar. When he arrived, 

another officer had the suspect detained on the ground and was 

placing handcuffs on him. Beam recovered cash from the suspect 

and a nearby gun on the ground. Beam testified that police 

additionally recovered a cell phone from the suspect running what 

appeared to be a police scanner "app" in which the dispatch runs of 

the city police could be heard. (Tr. at 185.) Concerning the behavior 

of the bar patrons, Beam did not observe indications that they were 

drunk or needed to be checked for sobriety. 

[*P19] Craig Goodman, a patrol officer with the Columbus 

Division of Police, likewise testified to responding to a robbery 

dispatch on January 16, 2014 at the Old Landmark Bar. Goodman 

entered the bar, observed that patrons had subdued the suspected 

robber, and secured the suspect in handcuffs. Thereafter, Goodman 

spoke to the patrons regarding the incident, then took the suspect to 

the police car and secured property on his person. The property 

recovered included, among other items, a pair of gloves, a ski mask, 

a pocketknife, a cellphone and ear phones, a BB gun with a fake 

silencer, and cash. Goodman identified appellant in court as the 

person he placed in handcuffs that evening. On cross-examination, 

Goodman agreed that on the day of the incident the weather was 

cold with snow on the ground, that it was not uncommon for people 

to have things like gloves and hats during such weather, and that 

when he arrived it appeared that the suspect had taken "a pretty good 

beating," enough so for Goodman to call medics. (Tr. at 202.) 
7 

[*P20] Todd Cress, a detective with the Columbus Division of 

Police robbery unit, testified to investigating a robbery at the Old 

Landmark Bar that allegedly occurred on January 16, 2014. As part 

of his investigation, Cress interviewed the bar patrons, the other two 

officers, and the suspect. In court, Cress identified appellant as the 

suspect that he interviewed. 

[*P21] During Cress's interview with appellant, after being read his 

rights and agreeing to speak with the detective about this incident, 

appellant claimed that he entered the bar, used the restroom, and 

then sat down and ordered a beer. According to appellant, he only 

had $12 in his pocket, and, in need of more money, he attempted to 

sell the fake gun to the bar patrons for $20. Instead, out of nowhere, 

one of the patrons who thought he knew appellant by the name of 

"Buddy" began beating him and other patrons joined. (Tr. at 221.) 

According to appellant, the bar patrons said "Call the cops. We'll say 

he robbed the bar since he's got the gun," and everyone agreed since 

they were all friends, and since the original patron at the source of 

the fight had convinced the group that appellant gave his sister 

gonorrhea. (Tr. at 222.) Appellant additionally explained that the ski 

mask was a black toboggan for the cold weather and that he had the 

police scanner to listen for robberies occurring in an area where he 

had recently been robbed. During the interview, appellant denied 

that police secured money from him and maintained his innocence 

when Cress feigned having viewed a videotape of the incident. 

[*P22] Sarah Carter testified that she worked as a bartender at the 

TK Sports Bar on the evening of Tuesday, January 14, 2014, two 

days prior to the Old Landmark Bar incident. According to Carter, 

that night: 

[A] gentleman walked in the door * * *. He started going 

towards the restroom. I stopped him about halfway to the 

restroom. 

I said, "We don't have public restrooms." He barely looked 

up at me and said, "I'm going to be getting a drink." Then 

he proceeded in the restroom. 

A couple minutes passed. He came back out, had a mask 

over his face, came to the middle of the bar and held a gun 

on me. It had one of those little red dots. That's what I 

focused on. It was right on my chest. He asked for me to 

give him all the money out of the register, and if I didn't, 

he was going to kill me. 

* * * 

I panicked. I jumped. I was scared. I've never had anyone 

point a gun at me. I immediately turned around, got him all 
8 

the money out of the register, handed it to him across the 

bar, and he proceeded out of the bar. 

(Tr. at 249-50.) 

Carter testified that the words used by the man were "[g]ive me the 

money out of the register" and then "[i]f you don't do this, I'm going 

to kill you." (Tr. at 251.) Carter testified that she was able to look at 

the man without a mask when he first came into the bar and 

described his clothes as really baggy, like sweatpants, and perhaps 

a sweatshirt or jacket. The mask worn by the man was black with 

the eyes cut out, and the gun he carried was black with a laser 

pointer. 

[*P23] After the man left, Carter pressed a silent alarm button 

underneath the bar and also used the phone to call police. Police 

were unable to apprehend the person who robbed her that evening, 

but she was later approached by detectives about a possible suspect. 

The detectives asked her to view a line up of six photographs, and 

Carter picked photograph four, the photograph of appellant, and 

indicated she was 60 percent sure that the photo selected was the 

person who robbed her. Regarding her percentage, Carter explained 

that she had very little chance to view the individual because he 

hardly made eye contact with her, and she did not want to pick the 

wrong person, but that the more she looked at the photo array she 

was "almost positive" that it was the person she chose. (Tr. at 267.) 

In the courtroom, Carter, without hesitation, identified appellant as 

the person who robbed her and stated that she was now "not worried 

at all" that appellant is the wrong person. (Tr. at 275.) 

[*P24] On cross-examination, Carter agreed that the description she 

gave police after the incident indicated that the suspect was in his 

late twenties to early thirties with light brown to blond hair. Carter 

additionally agreed that in the notes of her photo array selection, she 

indicated that her 60 percent determination was in part due to her 

being unable to see the remainder of his body in the photo because 

she thought the suspect was a heavier-set man. 

[*P25] During the conversation about the photo array, appellant's 

counsel asked Carter whether the second and fifth photograph 

appeared to be the same person. Carter replied, "[t]hey look similar 

* * *. They do look similar. I wouldn't tell you today they are the 

same person." (Tr. at 276-77.) When pressed about why she did not 

realize that two of the photographs were actually the same person, 

Carter replied, "[b]ecause I knew they were not the people that 

robbed me. I guess I didn't focus on that very much." (Tr. at 277.) 
9 

Carter agreed that she and the other bar patrons involved talked 

about the incident between the day the alleged robbery occurred and 

the day she viewed the photo array. 

[*P26] Anjanette Meade, a bartender at TK Sports Bar, testified that 

around 10:30 p.m. on January 14, 2014, she and her boyfriend were 

sitting at the corner of the bar. According to Meade, a man entered 

the bar wearing big sweats and went into the restroom after telling 

Carter he would buy a drink. As Meade talked to her boyfriend, a 

red light appeared on his forehead and face. Meade turned and 

looked down the bar and saw a man with gloves, a mask, and a gun. 

Meade thought they were being robbed and restrained her boyfriend 

as the man later passed them to exit the bar. 

[*P27] Meade testified that she was able to see the man's face 

without the mask as he passed her on the way to the restroom, in 

lighting that was probably dim. She said she had about two drinks 

that evening that did not affect her judgment. A few days later, on 

January 20, police asked Meade to see if a photo array included the 

suspected robber. Meade testified that she picked photo number four 

"[r]ight away" and was about 90 percent sure the man in that photo 

was the person who robbed the bar. (Tr. at 304.) In court, Meade 

testified that she remained confident in her choice and identified 

appellant as the person she believed robbed TK Sports Bar. 

[*P28] On cross-examination, before being informed by appellant 

that photos two and five in the array were actually the same person, 

Meade expressed her belief that the photos were "[a]bsolutely" 

different people. (Tr. at 322.) Meade additionally confirmed that she 

and Carter had been friends for about six years. 

[*P29] Misty Temple testified that on the night of the incident she 

was playing a game of pool at TK Sports Bar near the front entrance 

of the bar. According to Temple, a man walked into the bar wearing 

a toboggan rolled up on his face, a sweatshirt, and jeans. She heard 

Carter tell the man that he had to get a beer and then saw the man 

enter the restroom. When Temple next looked up, she saw the man 

pointing a black gun with a red laser in Carter's face, asking for 

money, and then saw him take the money and exit through the front 

door with the gun still in his hand. 

[*P30] Temple testified to looking at the man's face when he walked 

into the bar proximate to the "pretty well lit" pool table area and 

observing him first speak to Carter. (Tr. at 344.) Police asked her to 

view a photo array on January 26, 2014, and Temple selected, with 

90 percent certainty, photo number four as the person who robbed 
10 

the bar. She then changed her percentage to indicate she was 99 

percent sure. In the courtroom, Temple testified that she remained 

99 percent sure about the choice she made and identified appellant 

as "[n]o question" the person who robbed the bar. (Tr. at 360.) 

[*P31] On cross-examination, Temple agreed that in between the 

incident and January 26, she spoke with Carter and Meade, and 

someone contacted her to let her know a detective was looking for 

her to conduct the photo array identification. When prompted to 

look again at photos two and five of the array and asked by 

appellant's counsel "They're the same person, aren't they," Temple 

replied "[m]aybe." (Tr. at 354.) She agreed that at the time she 

identified the fourth photo as the robber of TK Sports Bar, she did 

not know photos two and five were the same person and explained 

"I wasn't looking for the same person" but rather "the person that I 

saw walking into TK's." (Tr. at 355.) 

[*P32] Gary Bowman, a robbery detective for the Columbus 

Division of Police, testified to responding with his partner, Kenneth 

Kirby, to a robbery at the TK Sports Bar on the night of January 14, 

2014. Bowman and Kirby interviewed Carter, Meade, and a few 

other people that evening but did not apprehend a suspect. Days 

later, Cress contacted him regarding potential commonalities 

between the two incidents. 

[*P33] With information gathered from Cress on the suspect in the 

Old Landmark Bar case, Bowman compiled the photo array. 

According to Bowman, to create a photo array, an officer inputs into 

the computer the age, weight, height, facial hair qualities, and 

hairstyle of the suspect, and then the computer pulls up all the 

pictures that are supposed to be similar to those search parameters. 

The officer then chooses five pictures out of those supplied. 

Bowman testified that he was unware at the time he compiled the 

array that two of the photos selected were the same individual and 

said that he "didn't catch it" or review the names associated with the 

photos provided on a second sheet. (Tr. at 374.) Bowman confirmed 

that numbers two and five of the array were photographs of the same 

individual taken at different time periods and stated that the photos 

had "different faces" and "look[ed] like two different guys." (Tr. at 

374.) Bowman provided the array to Kirby, who administered the 

photo array with the witnesses. 

[*P34] On cross-examination, Bowman agreed that Meade's 

boyfriend, who was sitting with her at the bar, could not give a 

description of the suspect. According to Bowman, four people 

present at the bar that night could give a description of the robbery 
11 

suspect and were subsequently shown the photo arrays. Out of those 

four, one person could not select a photo from the array as the 

suspected robber. Furthermore, Bowman agreed that there "[n]ever" 

should be a photo array with two of the same individuals and that, 

in Bowman's opinion, to do so was improper and a violation of the 

statute that governs photo arrays. (Tr. at 391.) Bowman disagreed in 

this instance that the photo array was unfair to appellant because that 

same person looked "so dramatically different" (Tr. at 391) in the 

two photographs, which were over a "big time frame" (Tr. at 393), 

so as to in essence be "two different faces" (Tr. at 391). 

[*P35] Kenneth Kirby, a police officer with the Columbus Division 

of Police robbery unit, testified to responding to a robbery at the TK 

Sports Bar, interviewing witnesses there, reviewing the surveillance 

video, and photographing the scene. According to Kirby, sometime 

later Bowman identified a suspect and asked Kirby to approach 

certain witnesses with photo arrays. Kirby did not know the name of 

the suspect, had not viewed a photograph of the suspect, and did not 

recall receiving a general email about the suspect broadcast by other 

detectives. Kirby testified that Carter selected appellant and stated 

she was 60 percent sure of her choice, Meade selected appellant 

right away and stated she was about 90 percent sure of her choice, 

and Temple selected appellant and stated she was 90 percent sure, 

which she then changed to 99 percent sure, of her choice. 

[*P36] On cross-examination, Kirby agreed that Temple told him 

during his initial interview that the suspect had a mustache and a 

slight goatee, that two other witnesses could not give a facial 

description of the suspect during the initial interviews, and that 

another witness shown the photo array could not pick anyone as the 

suspect. Kirby also confirmed that he presented the same photo 

array, with appellant in the fourth photograph position, to each 

witness on different days and that it is generally possible for 

witnesses to speak to each other about the arrays. 

[*P37] Both parties rested. Appellant objected to the admission of 

the photo array identification sheets due to the inclusion of the same 

person twice. The remainder of appellee's exhibits were admitted 

without objection, including appellant's taped interview with police, 

the surveillance video, witness statements, and photographs. The 

judge then read jury instructions, including a general credibility 

instruction and the statement, "[r]emember, you must analyze each 

incident independently from one another. Your decision, analysis 

and verdict on one case may not affect your analysis, decision and 

verdict on the other case. The law does allow you to consider modus 

operandi not as it relates to whether he's a bad person, for two 
12 

incidents, but that the incidents were similar." (Tr. at 504.) Later, the 

judge again stated, "Just to make sure there's no confusion, you 

know there are three counts, right? Two counts as it relates to the 

bars and one count as it relates to the bartender and the key. All three 

of those cases have to be decided separately." (Tr. at 515.) 

[*P38] The jury found appellant guilty of all three counts of seconddegree robbery under R.C. 2911.02. A sentencing hearing was held 

on July 22, 2015, after which the judge imposed three years of 

incarceration for each count of the Old Landmark Bar case to be 

served consecutively to each other for a total of six years and three 

years of incarceration on the TK Sports Bar case to be served 

consecutively to the Old Landmark Bar case for a total of nine years 

incarceration. Appellant filed a timely appeal to this court. 

State v. Lytle, 2016-Ohio-3532, 2016 Ohio App. LEXIS 2368 (10th Dist. Jun. 21, 2016). Lytle was 

represented on appeal by new counsel and raised four assignments of error, not including 

ineffective assistance of trial counsel (Appellant’s Brief, State Court Record ECF No. 4, PageID 

60, et seq.). 

 After the Tenth District affirmed the convictions and sentence, Lytle appealed pro se to the 

Supreme Court of Ohio raising two propositions of law (Memorandum in Support of Jurisdiction, 

State Court Record ECF No. 4, PageID 179, et seq.). The Ohio Supreme Court declined 

jurisdiction. State v. Lytle, 147 Ohio St. 3d 1474 (2016). 

 While his direct appeal was pending, Lytle filed pro se a petition for post-conviction relief 

under Ohio Revised Code § 2953.21 raising five claims of ineffective assistance of trial counsel 

(Petition, State Court Record ECF No. 4, PageID 224, et seq.). The Common Pleas Court 

dismissed the petition and Lytle appealed, but his appeal was dismissed for failure to file a brief 

and the Tenth District twice denied motions for reconsideration (Entries, State Court Record ECF 

No. 4, PageID 288. 296, 304). Lytle did not appeal further to the Supreme Court of Ohio. 
13 

 On September 19, 2016,2

 Lytle filed an Application to Reopen his direct appeal asserting 

ineffective assistance of his appellate counsel (Motion, State Court Record ECF No. 4, PageID 

307, et seq.). The Tenth District denied the Application because the post-conviction appeals in 

question were pursued pro se and had been dismissed for failure to file a brief (Entry, State Court 

Record ECF No. 4, PageID 323). Lytle also did not appeal this decision to the Ohio Supreme 

Court. Having again obtained the assistance of counsel, he filed the instant Petition for Writ of 

Habeas Corpus December 27, 2017. 

 Despite being represented by counsel, Lytle did not file his Petition in the form required 

by Habeas Rule 2(d). Respondent reads the Petition as pleading seven grounds for relief (Return, 

ECF No. 5, PageID 957-59). Instead of disagreeing with Respondent’s statement of the claims, 

Petitioner organizes his Reply around four claims (1) ineffective assistance of trial counsel, (2) 

double jeopardy, (3) unconstitutional pre-trial identification, and (4) improper joinder. The 

analysis in this Report will be organized around the claims made in the Reply. 

Analysis 

Ineffective Assistance of Trial Counsel 

 In the Petition, Lytle claims he received ineffective assistance of trial counsel when his 

trial attorney failed to file a notice of alibi and failed to present witnesses who would have 

established that alibi (Petition, ECF No. 1, PageID 3, ¶ 14). That is the only claim of ineffective 

 

2

 Respondent has this date as June 7, 2016 (Return, ECF No. 5, PageID 957), but the Franklin County Clerk of Courts 

time stamp shows September 29, 2016. This is consistent with the date of notarization at PageID 308. 
14 

assistance of trial counsel made in the Petition. Lytle elaborates in his Reply that several plea 

bargains were offered which he would have accepted had he known his alibi witnesses would not 

be called (Reply, ECF No. 10, PageID 1025-26). Respondent asserts this claim is barred by Lytle’s 

procedural default in presenting it to the state courts (Return, ECF No. 5, PageID 976-79). 

 The procedural default doctrine in habeas corpus is described by the Supreme Court as 

follows: 

In all cases in which a state prisoner has defaulted his federal claims 

in state court pursuant to an adequate and independent state 

procedural rule, federal habeas review of the claims is barred unless 

the prisoner can demonstrate cause of the default and actual 

prejudice as a result of the alleged violation of federal law; or 

demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional claim 

he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 

(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas 

petitioner who fails to comply with a state’s rules of procedure waives his right to federal habeas 

corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v. 

Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87. 

Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963). 

Coleman, 501 U.S. at 724 

[A] federal court may not review federal claims that were 

procedurally defaulted in state court—that is, claims that the state 

court denied based on an adequate and independent state procedural 

rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 

L.Ed.2d 417 (2009). This is an important “corollary” to the 

exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 

S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which 
15 

a state prisoner fails to exhaust state remedies, a habeas petitioner 

who has failed to meet the State’s procedural requirements for 

presenting his federal claims has deprived the state courts of an 

opportunity to address” the merits of “those claims in the first 

instance.” Coleman, 501 U.S., at 731-732, 111 S. Ct. 2546, 115 L. 

Ed. 2d 640. The procedural default doctrine thus advances the same 

comity, finality, and federalism interests advanced by the exhaustion 

doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 

113 L.Ed.2d 517 (1991). 

Davila v. Davis, 137 S.Ct. 2058, 2064 (2017). 

 The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a 

habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 

2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 

345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott 

v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001). 

First the court must determine that there is a state procedural rule 

that is applicable to the petitioner's claim and that the petitioner 

failed to comply with the rule. 

 . . . . 

Second, the court must decide whether the state courts actually 

enforced the state procedural sanction, citing County Court of Ulster 

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 

(1979). 

Third, the court must decide whether the state procedural forfeiture 

is an "adequate and independent" state ground on which the state 

can rely to foreclose review of a federal constitutional claim. 

Once the court determines that a state procedural rule was not 

complied with and that the rule was an adequate and independent 

state ground, then the petitioner must demonstrate under 

[Wainwright v.] Sykes, 433 U.S. 72 (1977)]that there was "cause" 

for him to not follow the procedural rule and that he was actually 

prejudiced by the alleged constitutional error. 

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357 

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner 
16 

can overcome a procedural default by showing cause for the default and prejudice from the asserted 

error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015), citing House v. Bell, 547 U.S. 518, 

536 (2006). 

 The relevant state court rule here is that one who files an appeal must brief the assignments 

of error he wants the court of appeals to consider. Without question, Lytle failed to file a brief on 

appeal from denial of his post-conviction petition and the Tenth District held that failure against 

him. Thus, this claim of ineffective assistance of trial counsel is procedurally defaulted unless 

Lytle can show excusing cause and resulting prejudice or some other excuse. 

 Lytle adverts to the fact that he has always claimed to be innocent and that actual innocence 

will overcome a procedural bar (Reply, ECF No. 10, PageID 1021). In Souter v. Jones, 395 F.3d 

577 (6th Cir. 2005), the Sixth Circuit held 

[I]f a habeas petitioner "presents evidence of innocence so strong 

that a court cannot have confidence in the outcome of the trial unless 

the court is also satisfied that the trial was free of nonharmless 

constitutional error, the petitioner should be allowed to pass through 

the gateway and argue the merits of his underlying claims." Schlup 

v. Delo, 513 U.S. 298, 316 (1995)."Thus, the threshold inquiry is 

whether "new facts raise[] sufficient doubt about [the petitioner's] 

guilt to undermine confidence in the result of the trial." Id. at 317. 

To establish actual innocence, "a petitioner must show that it is more 

likely than not that no reasonable juror would have found petitioner 

guilty beyond a reasonable doubt." Id. at 327. The Court has noted 

that "actual innocence means factual innocence, not mere legal 

insufficiency." Bousley v. United States, 523 U.S. 614, 623, 140 

L.Ed.2d 828, 118 S.Ct. 1604 (1998). "To be credible, such a claim 

requires petitioner to support his allegations of constitutional error 

with new reliable evidence -- whether it be exculpatory scientific 

evidence, trustworthy eyewitness accounts, or critical physical 

evidence -- that was not presented at trial." Schlup, 513 U.S. at 324. 

The Court counseled however, that the actual innocence exception 

should "remain rare" and "only be applied in the 'extraordinary 

case.'" Id. at 321. 

395 F.3d at 590. However, the Reply does not advert to any new evidence, whether of the kinds 

required by Souter or otherwise, instead asserting that “[n]ew evidence is only one way” to meet 
17 

the actual innocence requirement (ECF No. 10, PageID 1021, citing Gomez v. Jaimet, 350 F.3d 

673 (7th Cir. 2003)). But Gomez upheld the procedural default found by the district court and 

correctly refused to apply Massaro v. United States, 538 U.S. 500 (2003), a § 2255 case, to 

proceedings under § 2254. 

 Lytle also seeks to avoid his procedural default by relying on Martinez v. Ryan, 566 U.S. 

1 (2012), the Supreme Court held: 

[W]hen a State requires a prisoner to raise an ineffective-assistanceof-trial-counsel claim in a collateral proceeding, a prisoner may 

establish cause for a default of an ineffective-assistance claim in two 

circumstances. The first is where the state courts did not appoint 

counsel in the initial-review collateral proceeding for a claim of 

ineffective assistance at trial. The second is where appointed counsel 

in the initial-review collateral proceeding, where the claim should 

have been raised, was ineffective under the standards of Strickland 

v. Washington, 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984). To overcome the default, a prisoner must also demonstrate 

that the underlying ineffective-assistance-of-trial-counsel claim is a 

substantial one, which is to say that the prisoner must demonstrate 

that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U.S. 

322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing standards 

for certificates of appealability to issue). 

132 S.Ct. at 1318-19. In Trevino v. Thaler, 569 U.S. 413 (2013), the Court extended Martinez to 

the Texas system. The Court held that even if though Texas’ law did not require ineffective 

assistance of trial counsel claims to be raised in an initial collateral review proceeding as the 

Arizona law at issue in Martinez did, it made it virtually impossible for appellate counsel to 

adequately present such claims on direct appeal. 

 The Sixth Circuit has on multiple occasions elided the question whether Martinez and 

Trevino apply in Ohio. In McGuire v. Warden, 738 F.3d 741 (6th Cir. 2013), Judge Rogers wrote 

for the court: 

Thus, Ohio law suggests two different ways to look at Trevino. On 

the one hand, certain claims can for practical purposes only be 
18 

brought in an initial-review collateral attack in a post-conviction 

petition. And Trevino recognized that a "meaningful opportunity to 

present a claim of ineffective assistance of trial counsel" includes 

"the need to expand the trial court record." 133 S.Ct. at 1921. Ohio 

courts recognize that claims requiring evidence outside the record 

may only be meaningfully litigated in post-conviction proceedings 

and may loosen ordinary res judicata principles in such cases: 

"although ineffective assistance of counsel ordinarily should be 

raised on direct appeal, res judicata does not bar a defendant from 

raising this issue in a petition for postconviction relief if the claim 

is based on evidence outside the record[,] . . . even when the issue 

of ineffective assistance of counsel was raised on direct appeal." 

State v. Richmond, 2012-Ohio-2511, No. 97616, 2012 WL 2047991, 

at *1 (Ohio Ct. App. 2012) (citing State v. Smith, 17 Ohio St. 3d 98, 

17 Ohio B. 219, 477 N.E.2d 1128, 1131 n.1 (Ohio 1985)). Thus, in 

Ohio, if ineffective assistance cases are divided into two categories, 

one could argue that the category requiring evidence outside the 

record must be brought on collateral review in order for review to 

be meaningful. 

On the other hand, in the "ordinary" case, "ineffective assistance of 

counsel at mitigation, just like ineffective assistance at trial, is an 

issue that can be brought on direct appeal," State v. Combs, 100 Ohio 

App. 3d 90, 652 N.E.2d 205, 212 (Ohio Ct. App. 1994) (collecting 

cases), with a constitutionally required appellate attorney, see 

Franklin v. Anderson, 434 F.3d 412, 428 (6th Cir. 2006) (citing 

Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 

(1985)); see also State v. Davis, 119 Ohio St. 3d 422, 2008 Ohio 

4608, 894 N.E.2d 1221, 1226 (Ohio 2008); Ohio R. App. P. 26(B). 

Indeed, such a claim was raised on McGuire's direct appeal, and was 

treated thoughtfully by the Supreme Court of Ohio on discretionary 

review, albeit as part of an ineffective assistance of appellate 

counsel claim. Arguably, then, the review of trial counsel 

ineffectiveness claims in Ohio is more "meaningful" than in Texas, 

because in Ohio there is "ordinarily" the availability of direct review 

with constitutionally required counsel, with the back-up of collateral 

attack where evidence outside the record is required. All of this 

shows that the application of Trevino to Ohio ineffective-assistance 

claims is neither obvious nor inevitable. 

738 F.3d at751-52. In the absence of decision from the Sixth Circuit, this Court should be reluctant 

to extend Martinez and Trevino to Ohio. 

 Even if Martinez and Trevino were applicable in Ohio, Lytle would still have to show that 
19 

his ineffective assistance of trial counsel claim was “substantial” to come within that exception. 

In post-conviction he claimed that his attorney forgot to re-subpoena witnesses, including alibi 

witnesses, but the State pointed out that that claim was refuted by the trial record where defense 

counsel explicitly stated his reasons for not calling the witnesses, to wit, his obligation as an officer 

of the court not to present certain kinds of testimony. In denying post-conviction relief, the trial 

judge accepted this argument that the trial transcript refuted Lytle’s claims about his attorney’s 

forgetfulness (Entry, State Court Record ECF No. 4, PageID 269). 

 In denying relief, Judge Serrott also relied on the Ohio doctrine of res judicata in criminal 

cases. Id. As Judge Rogers noted in McGuire, supra, Ohio requires ineffective assistance of trial 

counsel claims to be litigated on direct appeal if they can be; otherwise they are barred by res 

judicata.

 Ohio’s doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St. 

2d 175 (1967), is an adequate and independent state ground of decision. Durr v. Mitchell, 487 

F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 

268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent,

17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 

913 (S.D. Ohio 2001). 

 Any claim by Lytle that res judicata was improperly applied to his post-conviction 

ineffective assistance of trial counsel claim could have been raised on appeal from denial of that 

petition, but here Lytle committed the additional default of failing to file a brief. 

 In sum, Lytle’s habeas corpus claim of ineffective assistance of trial counsel is barred by 

his procedural default in presenting it to the state courts. This claim should be dismissed. 
20 

Double Jeopardy 

 Lytle claims the Double Jeopardy Clause protects him from being twice convicted of 

robbery for the events that occurred at the Old Landmark Bar, once for robbery of the business 

and once for robbery of the person of the bartender, Susan Puckett (Reply, ECF No. 10, PageID 

1026-29. Respondent defends this claim on the merits. 

 On his direct appeal to the Tenth District, Lytle’s second assignment of error was that the 

trial court erred when it refused to merge these two robbery counts under Ohio Revised Code § 

2941.25. The Tenth District held that these were separate crimes under the statute because there 

were separate victims: Lytle took money belonging to the business and then demanded at 

gunpoint3

 and received her car keys from Ms. Puckett. 

 The Tenth District analyzed at some length the proper interpretation of Ohio Revised Code 

§ 2941.25. State v. Lytle, supra, ¶¶ 52-66. Lytle attempts to reduce that argument to absurdity by 

claiming that under the Tenth District’s reading, “every robbery of an establishment would lead to 

at least two named victims in the indictment, the establishment and the individual person.” (Reply, 

ECF No. 10, PageID 1027). Not so. Lytle first robbed the bar by demanding its money from its 

agent who was present, the bartender. Then he took the personal property of the bartender by 

demanding her car keys. Lytle likens the situation to that of a bank robbery, but the situations 

would be parallel only if the bank robber took the bank’s money from a teller and then demanded 

her engagement ring as well. 

 Lytle complains that the Tenth District did not apply the appropriate federal Double 

Jeopardy test as enunciated in Blockburger v. United States, 284 U.S. 299, 304 (1932), and 

 

3

 Lytle was presumably not charged with aggravated robbery because the gun was a fake. 
21 

Missouri v. Hunter, 459 U.S. 359, 366 (1983) (Reply, ECF No. 10, PageID 1026-27). This is 

hardly surprising since on appeal Lytle argued the Assignment of Error solely as a violation of 

Ohio Revised Code § 2941.25 and did not cite any federal authority, much less Blockburger or 

Hunter (Appellant’s Brief, State Court Record 4, PageID 61-64). 

 Be that as it may, the Sixth Circuit has held that an Ohio appellate decision under Ohio 

Revised Code § 2941.25 is completely dispositive of the cognate Double Jeopardy claim. Jackson 

v. Smith, 745 F.3d 206 (6th Cir. 2014), citing State v. Rance, 85 Ohio St. 3d 632 (1999), overruled 

on other grounds by State v. Johnson, 128 Ohio St. 3d 153 (2010). 

What determines whether the constitutional prohibition against 

multiple punishments has been violated is the state legislature’s 

intent concerning punishment. Specifically, “[w]ith respect to 

cumulative sentences imposed in a single trial, the Double Jeopardy 

Clause does no more than prevent the sentencing court from 

prescribing greater punishment than the legislature intended.” 

Jackson v. Smith, 745 F.3d 206, 211 (6th Cir. 2014), quoting Missouri v. Hunter, 459 U.S. 359, 

366 (1983). 

 Where two offenses are the same for Blockburger purposes, multiple punishments can be 

imposed if the legislature clearly intended to do so. Albernaz v. United States, 450 U.S. 333, 344 

(1981); Missouri v. Hunter, 459 U.S. 359, 366 (1983); Ohio v. Johnson, 467 U.S. 493, 499 (1984); 

Garrett v. United States, 471 U.S. 773, 779 (1985). White v. Howes, 586 F.3d 1025, 1035 (6th Cir. 

2009)(“The current jurisprudence allows for multiple punishment for the same offense provided 

the legislature has clearly indicated its intent to so provide, and recognizes no exception for 

necessarily included, or overlapping offenses.”) The Blockburger test is a rule of statutory 

construction, not a constitutional test in itself. Volpe v. Trim, 708 F.3d 688 (6th Cir. 2013), citing

Albernaz. “When assessing the intent of a state legislature, a federal court is bound by a state 

court’s construction of that state’s own statutes.” Volpe, citing Banner v. Davis, 886 F.2d 777, 
22 

780 (6th Cir. 1989). 

 It cannot be seriously contended that the General Assembly intended to give robbers one or 

more freebies by letting them rob everyone present during an establishment robbery and then 

requiring merger of the offenses. 

 When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision is 

contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100 

(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); 

Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Under Sixth Circuit precedent, the Tenth 

District’s decision of the Ohio Revised Code § 2941.25 claim implicitly denies any Double 

Jeopardy claim based on the same facts. Lytle has not shown that the Tenth District’s decision on 

direct appeal is contrary to or an objectively unreasonable application of clearly established 

Supreme Court precedent. 

 As part of his argument about double jeopardy, Lytle claims he was convicted on the basis 

of a fictitious statute. He asserts, “[t]he three robbery counts for which Lytle was tried, convicted 

and sentenced, contained a mental state that is not included in Ohio’s robbery statute. While Ohio’s 

robbery statute does not contain the reduced mental state of “reckless,” Lytle was nonetheless indicted 

with “reckless” as the required mental state.” (Reply, ECF No. 10, PageID 1029). 

 As Lytle points out, the Ohio robbery statute, Ohio Revised Code § 2911.02, does not 

specify a required mens rea. However, Ohio Revised Code § 2901.21(B) requires proof of 

recklessness when no other mental state is prescribed. Ohio Rev. Code § 2901.21(B). 

Furthermore, there is no requirement that the mens rea element be included in an indictment 

charging offenses committed in violation of Ohio Rev. Code § 2911.02. “Today we . . . hold that 
23 

when an indictment fails to charge a mens rea element of the crime, but tracks the language of the 

criminal statute describing the offense, the indictment provides the defendant with adequate notice 

of the charges against him and is, therefore, not defective.” State v. Horner, 126 Ohio St.3d 466, 

473, 2010-Ohio-3830 at ¶ 6 (2010). Nevertheless, each of the four counts in Lytle’s indictment 

included the mens rea element of “recklessness.” (ECF No. 4, PageID 14-15.) Thus, had any 

error occurred, it would be of the harmless variety. 

 Even if this argument had any merit, it comes far too late in the process. Lytle never 

attacked the indictment as improper anywhere in the state court process, or even in his Petition. A 

habeas petition cannot be effectively amended by raising a new issue in the reply, but must follow 

the process provided in 28 U.S.C. § 2242. 

 Lytle’s Double Jeopardy claim should be dismissed with prejudice. 

Unconstitutional Pre-Trial Identification 

 In his Third Ground for Relief, Lytle complains of unconstitutional pre-trial identification. 

Respondent asserts this claim is procedurally defaulted by Lytle’s failure to present it as a federal 

constitutional claim in the state courts. (Return, ECF No. 5, PageID 973-74.) 

 On direct appeal this claim was presented to the Tenth District as the Fourth Assignment 

of Error and decided as follows: 

[*P71] In his fourth assignment of error, appellant contends that 

"the trial court violated R.C. 2933.83(C)(3) in the TK Sports Bar 

case by failing to instruct the jury that the jury may consider 

evidence of noncompliance with mandatory photo-lineup 

procedures in determining the reliability of the witnesses' purported 

identification of [a]ppellant." (Appellant's Brief at vii.) 
24 

[*P72] As a preliminary issue, appellant argues that even though he 

did not request a jury instruction, pursuant to R.C. 2933.83(C)(3), 

or specifically object to the lack of this jury instruction, he preserved 

de novo review of this issue by objecting to the submission of the 

photo array generally. We disagree. Generally, the time to call an 

error to the court's attention is "at a time when such error could have 

been avoided or corrected by the trial court." [State v.] Quarterman[, 

140 Ohio St.3d 464, 2014-Ohio-4034] at ¶ 15 [2014], quoting State 

v. Awan, 22 Ohio St.3d 120, 122 (1986), quoting State v. Childs, 14 

Ohio St.2d 56 (1968), paragraph three of the syllabus. Hence, the 

failure to object to the lack of a jury instruction under R.C. 

2933.83(C)(3) constitutes a waiver of all but plain error on appeal 

under Crim.R. 52(B). State v. Wells, 8th Dist. No. 98388, 2013-

Ohio-3722, ¶ 97, citing State v. Williams, 51 Ohio St.2d 112 (1977); 

State v. Thompson, 4th Dist. No. 12CA688, 2013-Ohio-2235, ¶ 23. 

[*P73] The record demonstrates that defense counsel did not object 

to the instructions the jury received in this case. Accordingly, we 

address this assignment of error under the plain error standard. "To 

prevail under the plain-error standard, a defendant must show that 

an error occurred, that it was obvious, and that it affected his 

substantial rights." State v. Obermiller, [147] Ohio St. 3d [175, 

2016-Ohio-1594, ¶ 62, citing State v. Barnes, 94 Ohio St.3d 21, 27 

(2002) (stating that an error affects substantial rights under Crim.R. 

52(B) only if it affects the outcome of the trial). See also State v. 

Arnold, [147] Ohio St.3d [138], 2016-Ohio-1595, ¶ 65, citing State 

v. Long, 53 Ohio St.2d 91 (1978), paragraph two of the syllabus 

(holding that an error does not rise to plain error unless "but for the 

error, the outcome of the trial clearly would have been otherwise"). 

We take "[n]otice of plain error * * * with the utmost caution, under 

exceptional circumstances and only to prevent a manifest 

miscarriage of justice." Long at 97. 

[*P74] R.C. 2933.83 "requires any law enforcement agency or 

criminal justice entity that conducts live lineups and photo lineups 

to adopt minimum procedures for conducting the lineups." 

Thompson at ¶ 22; R.C. 2933.83(B). For example, these minimum 

procedures include, unless impracticable, use of a "blind or blinded 

administrator" and having the administrator make a written record 

of the identification. Id. The statute "do[es] not prohibit a law 

enforcement agency or criminal justice entity from adopting other 

scientifically accepted procedures for conducting * * * photo 

lineups that the scientific community considers more effective." 

R.C. 2933.83(D). Furthermore, R.C. 2933.83(A)(8) defines a 

"[p]hoto lineup" as "an identification procedure in which an array of 

photographs, including a photograph of the suspected perpetrator of 
25 

an offense and additional photographs of other persons not 

suspected of the offense, is displayed to an eyewitness for the 

purpose of determining whether the eyewitness identifies the 

suspect as the perpetrator of the offense." 

[*P75] The "penalt[ies]" for failing to comply with R.C. 2933.83 is 

a potential jury instruction under R.C. 2933.83(C)(3), and, if the 

procedure was "impermissibly suggestive," potential suppression of 

the identification. Wells at ¶ 84, 98. R.C. 2933.83(C)(3) states: 

When evidence of a failure to comply with any of the 

provisions of this section, or with any procedure for 

conducting lineups that has been adopted by a law 

enforcement agency or criminal justice agency pursuant to 

division (B) of this section and that conforms to any 

provision of divisions (B)(1) to (5) of this section, is 

presented at trial, the jury shall be instructed that it may 

consider credible evidence of noncompliance in 

determining the reliability of any eyewitness identification 

resulting from or related to the lineup. 

[*P76] Appellant contends that evidence of a failure to comply with 

the provisions of R.C. 2933.83 was presented at trial in order to 

trigger a jury instruction. Specifically, appellant points to Bowman's 

and Kirby's testimonies as evidence that including two photographs 

of the same person violated the Columbus police lineup procedure. 

It is true that Bowman expressed his own opinion that including two 

photographs of the same person was a statutory violation. However, 

the minimum statutory requirements and definition of photo array in 

R.C. 2933.83 do not address whether five distinct people must be 

included in the array alongside the defendant. In addition, testimony 

reflecting the officers' belief that the duplication never should have 

occurred falls short of establishing a procedure against photo 

duplication "adopted" by the Columbus police department under 

R.C. 2933.83. R.C. 2933.83(C). 

[*P77] In other words, whether or not a violation of R.C. 2933.83

occurred is not obvious from record evidence. As such, we cannot 

say any possible defect in not including a jury instruction, pursuant 

to R.C. 2933.83(C)(3), rises to the level of "plain" error within the 

meaning of Crim.R. 52(B). Barnes at 28. See also Thompson at ¶ 24

(finding, in the context of a court's failure to impose a jury 

instruction under R.C. 2933.83(C)(3), no plain error occurs where 

insufficient record evidence demonstrates noncompliance with the 

statute). 
26 

[*P78] We likewise cannot say that any possible error in not 

including the R.C. 2933.83(C)(3) jury instruction affected the 

outcome of the trial. The jury heard extensive testimony and crossexamination regarding the photo array identifications and the two 

photographs of the same person. The witnesses testified that they 

did not know that two photographs of the same person were placed 

in the photo array and that it did not affect their selections of 

appellant in the photo array, and all identified appellant in court as 

the person who robbed TK Sports Bar. Our own review of the photo 

array, which is in the record on appeal, shows that the two 

photographs at issue are significantly different and not readily 

identifiable as the same person. 

[*P79] Furthermore, the trial court gave the jury general 

instructions regarding the value of identification testimony and 

credibility of identification witnesses, which specifically asked the 

jury to consider whether each identification witness had the 

opportunity to make a reliable observation and specified that the jury 

could take into account the strength of the identification and the 

circumstances under which the identification was made. Such a 

general credibility instruction allows a jury to assess the value of 

photo identification testimony. Thompson at ¶ 24 (finding no plain 

error occurred in trial court's failure to give a R.C. 2933.83(C)(3)

instruction where jury received a general credibility instruction and 

heard sufficient testimony regarding the identification); Wells at ¶ 

100 (finding no plain error in trial court's failure to give a R.C. 

2933.83(C)(3) instruction where a general credibility instruction 

"provided guidance to the jury to consider the circumstances 

surrounding the identification"). Therefore, appellant's substantial 

rights were not affected, and for all the above reasons, we find no 

plain error. 

[*P80] Accordingly, appellant's fourth assignment of error is 

overruled. 

State v. Lytle, 2016-Ohio-3532 (some internal quotation marks omitted). 

 As can be readily seen, the Tenth District decided this Assignment of Error solely under 

the Ohio photo identification statute, Ohio Revised Code § 2933.83. It did not purport to be 

deciding any federal constitutional issue nor cite any federal constitutional authority. This is 

scarcely surprising since the Assignment was presented solely as a state law issue and no federal 

case law authority was cited (Appellant’s Brief, State Court Record ECF No. 4, PageID 62, 63-
27 

65). 

 Lytle makes no separate argument to attempt to show cause and prejudice for this lack of 

fair presentation on appeal. If it were ineffective assistance of appellate counsel to fail to argue 

this as a federal constitutional issue (which Lytle does not argue), that claim would have to first 

be presented to the state courts in an application to reopen under Ohio App.R. 26(B). Edwards v. 

Carpenter, 529 U.S. 446 (2000). Lytle has never filed such an application with respect to 

representation on direct appeal and the time during which he could have filed such an application 

has long since expired. 

 Lytle’s claim of unconstitutional pretrial identification is barred by procedural default and 

should be dismissed with prejudice. 

Failure to Sever Trials 

 Lastly, Lytle claims the failure to separately try the counts relating to the Old Landmark 

Bar from those relating to the TK Sports bar deprived him of a fair trial in violation of the Sixth 

Amendment. 

 Respondent asserts this claim is procedurally defaulted as well. The Warden notes that 

Lytle made his claim for severance in the trial court exclusively under Ohio R. Evid. 404(B). On 

appeal, he changed theories and made his claim solely under Ohio R. Evid. 404(A). Finally, he 

failed to appeal this issue to the Supreme Court of Ohio. 

 Denial of severance was Lytle’s Third Assignment of Error on direct appeal which the 

Tenth District decided as follows: 
28 

[*P62] In his third assignment of error, appellant contends the trial 

court erred in denying his motion to sever the trial of the two cases. 

For the following reasons, we disagree. 

[*P63] Ohio's criminal rules permit a court to order two or more 

indictments to be tried together "if the offenses * * * could have 

been joined in a single indictment." Crim.R. 13. Crim.R. 8(A) states 

that two or more offenses may be charged in the same indictment if 

they are of "the same or similar character, or are based on the same 

act or transaction, or are based on two or more acts or transactions 

connected together or constituting parts of a common scheme or 

plan, or are part of a course of criminal conduct." State v. Sullivan, 

10th Dist. No. 10AP-997, 2011-Ohio-6384, ¶ 21. Joinder of multiple 

offenses in a single trial is generally favored because it "'conserves 

judicial and prosecutorial time, lessens the not inconsiderable 

expenses of multiple trials, diminishes inconvenience to witnesses, 

and minimizes the possibility of incongruous results in successive 

trials before different juries.'" Id., quoting State v. Walters, 10th 

Dist. No. 06AP-693, 2007-Ohio-5554, ¶ 21. 

[*P64] Nonetheless, an accused may move to sever counts of an 

indictment on the grounds that he or she will be prejudiced by the 

joinder of multiple offenses. State v. LaMar, 95 Ohio St.3d 181, 

2002-Ohio-2128, ¶ 49. To succeed on a motion to sever, a defendant 

"'must furnish the trial court with sufficient information so that it 

can weigh the considerations favoring joinder against the 

defendant's right to a fair trial.'" State v. Lott, 51 Ohio St.3d 160, 163 

(1990), quoting State v. Torres, 66 Ohio St.2d 340 (1981), syllabus. 

[*P65] The state can negate a defendant's claim of prejudicial 

joinder in two ways. LaMar at ¶ 50. First, if the state shows that 

evidence of one offense would be admissible at a separate trial of 

the other offense as "other acts" evidence under Evid.R. 404(B), 

then joinder of the offenses in the same trial cannot prejudice the 

defendant. State v. Tipton, 10th Dist. No. 04AP-1314, 2006-Ohio2066, ¶ 27, citing LaMar at ¶ 50; State v. Brinkley, 105 Ohio St.3d 

231, 2005-Ohio-1507, ¶ 30; State v. Coley, 93 Ohio St.3d 253, 259 

(2001). Second, a joinder cannot result in prejudice if the evidence 

of the offenses joined at trial is simple and direct, so that a jury is 

capable of segregating the proof required for each offense. Tipton at 

¶ 27, citing State v. Johnson, 88 Ohio St.3d 95 (2000); State v. Mills, 

62 Ohio St.3d 357, 362 (1992). These two tests are disjunctive so 

that the satisfaction of one negates a defendant's claim of prejudice 

without having to consider the other test. State v. Gravely, 188 Ohio 

App.3d 825, 2010-Ohio-3379, ¶ 38 (10th Dist.), citing State v. 
29 

Cameron, 10th Dist. No. 09AP-56, 2009-Ohio-6479, ¶ 35, citing 

Mills at 362. 

[*P66] Generally, an appellate court will not reverse a trial court's 

decision to deny severance unless the trial court has abused its 

discretion. Lott at 163. An abuse of discretion means that a trial 

court's ruling was unreasonable, arbitrary, or unconscionable. State 

v. Vasquez, 10th Dist. No. 05AP-705, 2006-Ohio-4074, ¶ 6. 

However, here, appellant did not move the trial court to sever the 

indictments either at the close of appellee's case-in-chief and the 

close of all evidence. As such, as acknowledged by appellant in his 

reply brief, he has waived all but plain error review on appeal. State 

v. Corker, 10th Dist. No. 13AP-264, 2013-Ohio-5446, ¶ 12-13. 

"'Plain error does not exist unless the appellant establishes that the 

outcome of the trial clearly would have been different but for the 

trial court's allegedly improper [joinder].'" Id. at ¶ 12, quoting State 

v. McGee, 8th Dist. No. 92019, 2010-Ohio-2081, ¶ 24, citing State 

v. Waddell, 75 Ohio St.3d 163, 166 (1996). 

[*P67] Appellant concedes that the evidence is simple and direct 

and that no violation of Evid.R. 404(B) or Crim.R. 14 occurred. 

Instead, appellant argues that "[a]llowing a jury hearing the TK 

Sports Bar case, in which the only contested issue was identity, to 

hear evidence of [appellant's] guilt in the Old Landmark Bar case 

violated Evid.R. 403(A), because the evidence was more prejudicial 

than probative" and curing the prejudice was "impossible." 

(Appellant's Brief at 36.) Appellant made neither argument to the 

trial court. It is well-settled [sic] that a party may not raise an issue 

on appeal that was not initially raised before the trial court. State v. 

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 15. 

[*P68] Furthermore, we note that, even if appellant's Evid.R. 

403(A) argument could be inferred from his arguments to the trial 

court, the argument under Evid.R. 403(A) is only relevant to 

challenge appellee's assertion regarding the hypothetical 

admissibility of the evidence. The Evid.R. 403(A) argument does 

not negate the "simple and direct" evidence of the offenses, which 

is a separate means to negate a defendant's claim of prejudice from 

joinder. LaMar at ¶ 50; Lott at 163. As previously stated, appellant 

concedes the evidence is simple and direct, and, as such, "a joinder 

cannot result in prejudice." Tipton at ¶ 27. 

[*P69] Considering all the above, we cannot say that it was an abuse 

of the trial court's discretion, let alone plain error, for the court to 

allow the indictments to remain joined throughout the trial. 
30 

State v. Lytle, 2016-Ohio-3532. A straightforward reading of the opinion supports Respondent’s 

view that Lytle forfeited this claim by changing theories between the trial and appellate courts. 

 The record also shows that denial of severance was not one of the claims Lytle pursued 

before the Ohio Supreme Court (Memorandum in Support of Jurisdiction, State Court Record ECF 

No. 4, PageID 180). 

 Lytle offers no purported cause to excuse omitting this claim before the Ohio Supreme 

Court. As with the pre-trial identification claim, if he blames the change of theories between the 

trial court and the court of appeals on ineffective assistance of appellate counsel, that claim is also 

procedurally defaulted by Lytle’s failure to file a 26(B) application to reopen the direct appeal. 

 

Conclusion 

 Based on the foregoing analysis, the Magistrate Judge respectfully recommends the 

Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this 

conclusion, Petitioner should be denied a certificate of appealability and the Court should certify 

to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be 

permitted to proceed in forma pauperis. 

July 25, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 
31 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Such objections shall specify the portions of the Report objected to and 

shall be accompanied by a memorandum of law in support of the objections. If the Report and 

Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, 

the objecting party shall promptly arrange for the transcription of the record, or such portions of it 

as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District 

Judge otherwise directs. A party may respond to another party=s objections within fourteen days 

after being served with a copy thereof. Failure to make objections in accordance with this 

procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th 

Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).