[Cite as State v. Combs , 2020-Ohio-5397.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, Appellee,

- vs -

JEFFREY A. COMBS, Appellant. :

:

:

:

:

: CASE NO. CA2020-01-004

O P I N I O N

11/23/2020

CRIMINAL APPEAL FROM CLERMONT C OUNTY COURT OF COMMON PLEAS Case No. 2019 CR 000734

D. Vincent Faris, Clermont County Prosecuting Attorney, Nichola s Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee Denise S. Barone, 385 North Street, Batavia, Ohio 45103, for ap pellant

HENDRICKSON, P.J. {¶1} Appellant, Jeffrey A. Combs, appeals from his conviction and se ntence in the Clermont County Court of Common Pleas for complicity to robbery . For the reasons set forth below, we affirm his conviction and sentence. {¶2} In July 2019, Brooke Sadler was attempting to sell her home, wh ich sat on a 43-acre lot on Belfast Road in Goshen, Clermont County, Ohio. Though Sadler had movedClermont CA2020-01-004

- 2 - out of the residence in early 2019, she returned to the propert y multiple times per day in order to care for horses that remained on the property. Sadler also stored many of her belongings on the property, in either the basement of the resid ence, the pole barn, or the

horse barn. {¶3} On July 13, 2019, Sadler had an open house to allow potential p urchasers a chance to view the property. Later that evening, around 8:30 p .m., Sadler returned to her Belfast property to tend to her horses. As she drove down her quarter-mile driveway, she noticed a dark, older model Ford pickup truck sitting in front of her pole barn. Sadler parked her vehicle directly behind the truck. As she got out of her v ehicle, she saw a man who she did not recognize. Sadler asked the man, who was later identif ied as Aaron Lawson, what he was doing on the property. As she asked this question, Sadl er noticed three individuals walk out of her opened pole barn. Sadler did not recognize the se individuals, but they were later identified as appellant, Erin Pappas, and Joseph Snider. Appellant was not wearing a shirt when he exited the pole barn. {¶4} Lawson told Sadler that he was given permission to be on the pr operty by "Mike Miller." Sadler did not know any "Mike Miller," and she believed the individuals on her property were trying to steal from her. Sadler walked towa rds the pickup truck and asked Lawson what items belonging to her were in the bed of the truck. Lawson told Sadler he had a fishing rod, which he tossed on the ground. Sadler to ld Lawson and the others that she was going to call the police. When Sadler attempted t o take a picture of the pickup truck's license plate, appellant hid the license plate by cover ing it with the brown shirt he had previously taken off. {¶5} Sadler continued to try to get a picture of the license plate. While this was occurring, appellant and Snider started the truck so they could make an escape. Due to an issue with the truck's starter, appellant had to reach into the hood and manually touch theClermont CA2020-01-004

- 3 - truck's solenoids to get the truck to start. Appellant then jo ined Snider and Pappas in the

truck's cab. Once the truck was started, it started moving bac kwards. Sadler, concerned that she might get pinned between the truck and her vehicle, ju mped into the bed of the

truck. {¶6} Lawson jumped into the bed of the truck with Sadler. He took S adler's phone and struck her in the head, causing her to fall out of the truc k. Sadler lost consciousness and laid on the ground for a period of time. When she regained consciousness, Sadler's vehicle had been moved and her phone was gone. Sadler made her way to her neighbor's house. Sadler's neighbor observed that Sadler was injured, uns teady on he r feet, and dazed. Sadler had a bruise on her cheekbone, scratches on her face, a black eye, black and blue marks under her chin, a concussion, and injury to one of her legs. The neighbor called the police. {¶7} Officers from the Goshen Township Police Department immediately began an investigation. When the officers went to Sadler's Belfast prop erty, the officers found both the front and side doors of the pole barn open. Inside the bol e barn, items were stacked near the front door, as if they had been gathered together to b e taken away. The officers also found a motorcycle sitting next to where the pickup truck had been parked on the property. According to Sadler, the motorcycle had been kept de ep inside the pole barn. {¶8} The officers also found a brown shirt near the area where the p ickup truck had been parked. This was the same shirt that appellant used to hi de the truck's license plate. Inside the pole barn, officers found a blue Igloo container tha t still had ice in it and a "Poplar Pop" cup with a straw. One of th e officers, Officer McAllister , recognized the pearl shaped ice in the Igloo container and deducted that the ice likely cam e from a nearby United Dairy Farmers ("UDF"). A review of surveillance footage from the nea rby UDF showed Lawson in the store with the blue Igloo container. The footage also s howed appellant arrive at theClermont CA2020-01-004

- 4 - UDF shirtless, with a brown shirt draped across his shoulder. The footage captured appellant, Lawson, Pappas, and Snider getting into an older mod el pickup truck and driving away from the store. {¶9} Officers began to search for appellant and his codefendants. A ppellant was eventually found at one of his friend's homes. When appellant exited his friend's residence, he indicated to the arresting officer that he "knew this was co ming." After being advised of his rights, appellant spoke with officers about what had occurr ed at Sadler's property. Appellant was initially evasive but ended up admitting that he learned during the robbery that he was not supposed to be at the Belfast home and that Law son had no right to any of the items on the property. He further admitted that he covered the truck's license plate with his shirt to try to conceal his and his codefendants' identitie s. {¶10} On July 30, 2019, appellant was indicted on one count of breaki ng and entering in violation of R.C. 2911.13(A), a felony of the fifth degree, one count of complicity to robbery in violation of R.C. 2923.03(A)(2) and 2911.02(A)(2) , a felony of the second degree, and one count of complicity to disrupting public servic es in violation of R.C. 2923.03(A)(2) and 2909.04(A)(3), a felony of the fourth degree. Appellant pled not guilty to the charges and a jury trial commenced on December 2, 2019. Af ter hearing testimony from Sadler, Sadler's neighbor, three Goshen Township police of ficers, and Snider, the jury found appellant guilty of complicity to robbery and not guilty of breaking and entering and complicity to disrupting public services. Appellant was senten ced on December 30, 2019 to an indefinite prison term of three to four and one-half year s. {¶11} Appellant appealed, raising two assignments of error. For ease of discussion, we begin by addressing appellant's second assignment of error. {¶12} Assignment of Error No. 2: {¶13} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-Clermont CA2020-01-004

- 5 - APPELLANT AS HE WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN TH E

TRIAL COURT ALLOWED THE PROSECUTING ATTORNEY TO ENGAGE IN

MISCONDUCT. {¶14} In his second assignment of error, appellant argues he was deni ed a right to a fair trial due to the prosecutor's misconduct in interrupting and objecting during defense counsel's opening statement. He further argues he received ine ffective assistance by his

trial counsel as counsel failed to move for a mistrial followin g the prosecutor's interruption of defense counsel's opening statement. 1 {¶15} The record reveals that defense counsel reserved his opening st atement until the close of the state's case-in-chief. The prosecutor objecte d as follows during defense counsel's opening statement: [DEFENSE COUNSEL]: The State's going to suggest to you that you heard a full confession form Mr. Combs and that you have a full written confession. What you have is a recorded statement from Mr. Combs and a written statement from Mr. Combs. And in that statement, he gives a lot of information. The officers commended him on how truthful and how honest and how helpful he was

. [PROSECUTOR]: I'm going to object. (Emphasis added). {¶16} After the prosecutor's objection, the court had the attorneys a pproach for a

sidebar discussion. [PROSECUTOR]: Based on your written prior (indiscernible) attest to the truthfulness of any one witness, I think it's inappropriate in the opening that – again, reinforced by the id ea

1. Within his assignment of error alleging prosecutorial misco nduct, appellant also makes the argument that defense counsel was ineffective for not objecting to an officer 's "rambling dissertation" of efforts undertaken to apprehend appellant. Appellant did not separately set forth an assignment of error alleging ineffective assistance of counsel, as required by App.R. 16(A). As such, w e need not address appellant's arguments regarding counsel's alleged failure to object to a witness's te stimony. See App.R. 12(A)(2). However, even if we were to consider such an argument, the argument fails as counsel's decision not to object falls within the ambit of trial strategy and alone will not establish an ineffec tive assistance of counsel claim. State v. Arrone , 12th Dist. Madison No. CA2008-04-010, 2009-Ohio-1456, ¶ 24.Clermont CA2020-01-004

- 6 - that he's being truthful. THE COURT: – (indiscernible) – [PROSECUTOR]: Go ahead. THE COURT: – (indiscernible) statements are on video. So I will overrule that objection because you – it sounds to me like this is going to be an argument. I mean, that's not going to happen. [PROSECUTOR]: Okay. THE COURT: Opening statement is preview. [PROSECUTOR]: Okay. THE COURT: He respected your case – [PROSECUTOR]: Okay.

THE COURT: – so. [PROSECUTOR]: Understood. THE COURT: We're certainly going to get to closing argument

– [PROSECUTOR]: All right. THE COURT: – but we won't get (indiscernible), so – [PROSECUTOR]: I get you. THE COURT: – any specific objection that is raised, I'm going to overrule with an admonition – [PROSECUTOR]: Okay. THE COURT: – with no bad feelings. [PROSECUTOR]: Yeah. THE COURT: (Indiscernible) saw in the video, move on to your next point. Let's avoid argument. [PROSECUTOR]: Okay. Thank you. After the trial court overruled the prosecutor's objection, def ense counsel continued hisClermont CA2020-01-004

- 7 - opening statement without any further interruption. {¶17} Appellant contends the prosecutor's single objection during def ense counsel's opening statement damaged his right to a fair trial. He argues that by interrupting defense counsel's opening remarks, the prosecutor "tainted the jury" by "sending a signal to the jury that [defense counsel] d[id] not deserve to be listened to. Th is is bad behavior and an example of a prosecutor using di rty tricks to achieve his point ." {¶18} "For a conviction to be reversed because of prosecutorial misco nduct, a defendant must prove the prosecutor's acts were improper and th at they prejudicially affected the defendant's substantial rights." State v. Harner , 12th Dist. Clinton No. CA2019- 05-011, 2020-Ohio-1184, ¶ 29, citing State v. Elmore , 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 62. "To demonstrate prejudice, a defendant must show that th e improper acts were so prejudicial that the outcome of the trial would clearly have be en different had those improper

acts not occurred." State v. Kaufhold, 12th Dist. Butler No. CA2019-09-148, 2020-Ohio3835, ¶ 42, citing State v. Jones , 12th Dist. Butler No. CA2006-11-298, 2008-Ohio-865, ¶

21. {¶19} "The focus of 'an inquiry into allegations of prosecutorial mis conduct is upon the fairness of the trial, not upon the culpability of the pros ecutor.'" Id. at ¶ 43, quoting State v. Gray , 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 57. P rosecutorial misconduct "is not grounds for error unless the defendant has b een denied a fair trial."

State v. Olvera-Guillen , 12th Dist. Butler No. CA2007-05-118, 2008-Ohio-5416, ¶ 27. " The accused is to be given a fair trial, not a perfect trial." State v. Kaaz , 12th Dist. Clinton No. CA2016-05-010, 2017-Ohio-5669, ¶ 102, citing Michigan v. Tucker , 417 U.S. 433, 94 S.Ct. 2357 (1974). See also State v. Landrum , 53 Ohio St.3d 107, 112 (1990) (noting that a defendant is not guaranteed an "error free, perfect trial"). {¶20} In the present case, appellant cannot establish that the prosec utor's objectionClermont CA2020-01-004

- 8 - was improper or that it prejudicially affected his substantial rights. "Although it is considered quite rude to repeatedly object during another party's opening or closing, there is no rule prohibiting counsel from interrupting a party's arguments with valid objections." State v. Mulvey , 7th Dist. Belmont No. 08 BE 31, 2009-Ohio-6756, ¶ 44. Here, although the trial court overruled the prosecutor's objection, there was a valid b asis for the objection. The prosecutor objected as he believed defense counsel was attempti ng to use a police officer's statements to vouch for appellant 's credibility. Not only are officers not permitted to render opinions on an accused's truthfulness; see State v. Carpenter , 12th Dist. Clermont No. CA2012-06-041, 2013-Ohio-1385, ¶ 18-20; but in this case, short ly before defense counsel gave his opening statement, the trial court admonished the jury as follows regarding an officer's ability to vouch for appellant's truthfulness: THE COURT: Ladies and gentlemen of the jury, both counsel asked questions of Capt. Hampton in terms of his belief in term s of whether or not Mr. Combs was being truthful. I probably should have then objected and not permitted anybody to inquire about that. The issue in terms of credibility is for you to de cide, and a witness is not allowed to testify as to their opinion as to whether or not they believe a person was being truthful or untruthful. You can certainly consider everything that was testified to, th e defendant's statement in relation to the evidence that has been offered. But you are instructed to disregard the testimony tha t was given, both in response to [defense counsel's] questioning, as well as [the prosecutor's] questioning, in terms of whether or not Capt. Hampton believed that M r. Combs was being truthful. Okay? That's a decision ultimately that you're going to make. Accordingly, the prosecutor's objection was not improper and ha d a valid basis. {¶21} Additionally, the prosecutor's single objection did not result in any prejudice to appellant. The objection, which consisted of the prosecutor saying, "I'm going to object" and then a sidebar discussion, did not prejudice the jury or ha ve an impact on the outcome of the trial. The jury continued to give their attention to de fense counsel, and at the closeClermont CA2020-01-004

- 9 - of trial, rendered an acquittal on two of the three charges app ellant faced. Appellant cannot demonstrate any prejudice and his claim of prosecutorial miscon duct, therefore, fails. {¶22} Appellant also argues he received ineffective representation fr om defense counsel as counsel failed to move for a mistrial following the interruption of defense counsel's opening statement. "In order to prevail on an ineffe ctive-assistance-of-counsel claim, a defendant must prove that counsel's performance was de ficient and that the defendant was prejudiced by counsel's deficient performance." State v. Davis , 159 Ohio St.3d 31, 2020-Ohio-309, ¶ 10, citing State v. Bradley , 42 Ohio St.3d 136, 141-142 (1989)

and Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). "Thus, the defendant must demonstrate that counsel's performance fell belo w an objective standard

of reasonableness and that there exists a reasonable probabilit y that, but for counsel's error, the result of the proceeding would have been different." Id. , citing Bradley at paragraphs two and three of the syllabus. {¶23} In the present case, appellant cannot demonstrate that counsel was deficient for not moving for a mistrial or that he was prejudiced by this decision. "[W]hether or not to

move for a mistrial is a tactical decision and is well within t he range of competent assistance

of counsel." State v. Gilbert , 12th Dist. Butler No. CA2010-09-240, 2011-Ohio-4340, ¶ 83. Appellant was not prejudiced by counsel's decision not to move for a mistrial, as such a motion would have been futile. Mistrials are only declared "wh en the ends of justice so require and a fair trial is no longer possible." State v. Garner , 74 Ohio St.3d 49, 59 (1995). As discussed above, the prosecutor's sole objection during defe nse counsel's opening statement did not prevent appellant from receiving a fair trial and it did not affect the outcome of trial. Appellant's ineffective assistance of counse l claim is, therefore, without

merit. {¶24} Accordingly, having found no merit to appellant's claims of pro secutorialClermont CA2020-01-004

- 10 - misconduct or ineffective assistance of counsel, we overrule hi s second assignment of

error. {¶25} Assignment of Error No. 1: {¶26} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTAPPELLANT IN SENTENCING HIM TO SERVE A THREE-YEAR TERM. {¶27} In his first assignment of error, appellant argues the trial co urt erred in imposing an indefinite prison sentence of three to four and one -half years, as such sentence

was excessive. {¶28} An appellate court reviews an imposed sentence under the standa rd of review set forth in R.C. 2953.08(G)(2), which governs all felony sente nces. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; State v. Crawford, 12th Dist. Clermont No. CA2012- 12-088, 2013-Ohio-3315, ¶ 6. Pursuant to that statute, an appe llate court does not review the sentencing court's decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the appellate court finds by clear and convincing evidence that "th e record does not support the trial court's findings under relevant statutes or that the sent ence is otherwise contrary to

law." Id. at ¶ 1. A sentence is not clearly and convincingly contrary t o law where the trial court "considers the principles and purposes of R.C. 2929.11, a s well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sent ences the defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8; State v. Julious , 12th Dist. Butler No. CA2015-12-224, 2016-Ohio4822, ¶ 8. {¶29} Appellant does not dispute that the trial court properly impose d postrelease control or that the court sentenced him within the permissible range for a second-degree felony after determining that the presumption in favor of a pri son term had not beenClermont CA2020-01-004

- 11 - overcome. R.C. 2929.14(A)(2)(a) permitted the imposition of an indefinite prison term with a stated minimum term of two, three, four, five, six, seven, or eight years and a maximum term consisting of an additional fifty percent of the imposed m inimum term. See R.C. 2929.144(B)(1). Appellant's indefinite prison term of three to four and one-half years falls within the permitted statutory range. Nonetheless, appellant m aintains that the sentence is "excessive" given his "minimal involvement" in the robbery offe nse and his lack of a long felony record. {¶30} The purposes of felony sentencing are to protect the public fro m future crime by the offender, to punish the offender, and to promote the eff ective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local govern ment resources. R.C. 2929.11(A). A felony sentence must be reaso nably calculated to achieve the purposes set forth in R.C. 2929.11(A) "commensurate with and not demeaning t o the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes committed by similar offenders." R.C. 2929.11(B ). In sentencing a defendant, a trial court is not required to consider each sente ncing factor, but rather to exercise its discretion in determining whether the sentence sat isfies the overriding purpose of Ohio's sentencing structure. State v. Littleton , 12th Dist. Butler No. CA2016-03-060, 2016-Ohio-7544, ¶ 12. The factors set forth in R.C. 2929.12 ar e nonexclusive, and R.C. 2929.12 explicitly allows a trial court to consider any relevan t factors in imposing a

sentence. State v. Birt, 12th Dist. Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 64. {¶31} Following our review of the record, we find no error in the tri al court's sentencing decision. The trial court properly considered all r elevant sentencing factors, including the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12. Not only does the court's sentencing entry reflect th ese considerations, but theClermont CA2020-01-004

- 12 - court specifically referenced R.C. 2929.11 and 2929.12 in findi ng that appellant's complicity to robbery offense was neither more serious nor less serious th an conduct normally constituting the offense. In making this determination, the tr ial court found that while appellant had not personally struck Sadler, his complicity in t he robbery offense contributed to the injuries she sustained. T he court noted that in additio n to appellant's involvement in gathering items to be taken from the pole barn, appellant had s ought to conceal his and his codefendants' identities by hiding the license plate of the pic kup truck they were loading

stolen items. {¶32} The court also considered appellant's risk of recidivism, findi ng that recidivism was "more likely rather than less likely * * * based primarily upon Mr. Combs extensive past criminal history as set forth in the presentence investigation [report]." As the trial court noted, appellant had a lengthy criminal history that dated back to 1988. When appellant was a juvenile, he was adjudicated delinquent for theft and vio lation of a court order. Since reaching adulthood, appellant had been convicted of attempted b urglary, a third-degree felony, and more than 15 misdemeanors, comprised mainly of driv ing under suspension, having open containers, resisting arrest, OVI, persistent disor derly conduct, and theft offenses. For many of these convictions, appellant was placed on community control, which he repeatedly violated. Although he successfully completed his community control for his 1992 felony conviction with only one community control violatio n recorded, appellant's

numerous violations for his misdemeanor offenses led to the rev ocation of community control in at least two cases. As of the time of sentencing, a ppellant had a bench warrant for his arrest for a violation of his community control sanctio n relating to a 2015 theft offense. {¶33} In finding that appellant posed a higher risk of recidivism, th e trial court also noted that appellant's criminal actions had continued in the da ys after the robbery at Sadler's Belfast home. In August 2019, appellant was convicted of the unauthorized use ofClermont CA2020-01-004

- 13 - property for an offense that had been committed on July 14, 201 9 – the day after the robbery at Sadler's home. The trial court noted appellant's ongoing cr iminal behavior was inconsistent with appellant's claim of remorse, stating, "If yo u are caught off-guard [when] this terrible incident occurs with Ms. Sadler and you are remor seful for that [then] it strikes me as incredibly inconsistent * * * [that] the next day you wou ld be involved with another theft offense involving somebody else's property." {¶34} Given the harm cased to Sadler, the risk of recidivism appellan t posed, and his lack of remorse, appellant's sentence was not excessive. A s the imposition of an indefinite prison term of three to four and one-half years was not contrary to law and was supported by the record, we find no merit to appellant's argume nts and overrule his first assignment of error. {¶35} Judgment affirmed.

RINGLAND and PIPER, JJ., concur.