[Cite as State v. Vicario, 2018-Ohio-4217.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 106373

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ERIK J. VICARIO

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-597651-A 

BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Boyle, J. 

RELEASED AND JOURNALIZED: October 18, 2018 
ATTORNEYS FOR APPELLANT 

Mark A. Stanton 

Cuyahoga County Public Defender 

By: Jeffrey Gamso 

Assistant Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE 

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Jennifer A. Driscoll 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
ANITA LASTER MAYS, J.: 

{¶1} Defendant-appellant Erik J. Vicario (“Vicario”) appeals his convictions and asks 

this court to vacate and remand for a new trial. After a review of the record, we affirm. 

{¶2} Vicario was found guilty of one count of aggravated murder, a first- degree felony, in 

violation of R.C. 2903.01(A); one count of murder, a first-degree felony, in violation of R.C. 

2903.02(B); four counts of attempted murder, first- degree felonies, in violation of R.C. 

2903.02(A); ten counts of felonious assault, second-degree felonies, in violation of R.C. 

2903.11(A)(1) and (2); and one count of having weapons while under disability, a third-degree 

felony, in violation of R.C. 2923.13(A)(3). Each count, with the exception of the having weapons 

while under disability count, included one- and three-year firearm specifications. After a bench 

trial, the trial court sentenced Vicario to an aggregate sentence of 31 years to life imprisonment. 

I. Facts 

{¶3} On the evening of May 10, 2015, a group of people were having a party in front of an 

apartment complex. Tanazha Watson (“Watson”) arrived at the apartment complex and started 

speaking with Tyshaun Jenkins (“Jenkins”). Jenkins’s girlfriend, Tunisha Jackson (“Jackson”) 

became upset because she thought Watson and Jenkins were flirting. Before Jackson could 

approach the couple, Watson left to go to the store with her sister, Dazhanae Dowell (“Dowell”), 

Vicario’s girlfriend. Dowell, Watson, and Vicario arrived at the convenient store about a block 

away from the apartment complex. Upon their arrival, Dowell and Watson were confronted by 

Jackson and her friends over the flirtatious behavior, and a fight ensued. Vicario tried to break 

up the fight, but was unable to do so, and the police were called. Once the police arrived, the 

fight stopped. The two groups went their separate ways. Tariaha Matthews (“Matthews”), had 

gone to the store with Jackson, left with Dowell, and went back to Dowell’s home. 
{¶4} Vicario was also at Dowell’s home, expressed that he was upset with the girls that 

fought Dowell and Watson, and wanted to exact revenge. Vicario asked Matthews to show him 

where they lived so that he could fight them for jumping Dowell. They drove to the apartment 

building where Jackson returned to the party, and Matthews showed Vicario where Jackson lived. 

Afterwards, Matthews and Vicario returned to Dowell’s home. Ten minutes later, Vicario left 

Dowell’s home and went back to the apartment complex, where Vicario fired multiple gun shots 

at the group partying outside. Michael Matthews (“M. Matthews”), Matthews’s father, was 

killed. Ronald Derrett (“Derrett”), Jackson, Jenkins, and Awilda Carroll were shot. At trial, 

Derrett identified Vicario as the person who shot him. 

{¶5} Terrance Colvin (“Colvin”) testified that Vicario confessed to him that he killed 

Matthews. Colvin also testified that Vicario abused and intimidated everyone that lived in 

Dowell’s home, including Dowell. Colvin testified that Vicario expressed remorse for killing M. 

Matthews, stating that he was not supposed to die. Dowell testified that Vicario confessed to her, 

the morning after the shooting, that he had done something bad. Vicario stated that he shot the 

people that were fighting with Dowell. 

{¶6} Although initially Dowell did not tell the police the entire story about what happened, 

she had a change of heart after seeing Matthews shortly after Dowell’s own mother died. Dowell 

felt badly that Vicario killed Matthews’s father. Dowell also testified that she was afraid of 

Vicario because she was previously abused by Vicario to the point where she needed to be 

hospitalized. Vicario’s trial counsel objected to this testimony and moved for a mistrial. The 

state argued that Dowell’s statements were not being used for the truth of the matter asserted, but 

rather to explain why Dowell was afraid of Vicario and therefore did not disclose information to 

the police. The trial court denied defense counsel’s motion for a mistrial. 
{¶7} At the end of the trial, the trial court found Vicario guilty of all counts and sentenced 

him to 31 years to life imprisonment. Vicario filed a notice of appeal and assigned four errors 

for our review: 

I. The verdicts were not supported by the manifest weight of the evidence, 

and, therefore, the convictions violated Vicario’s rights to a fair trial and 

due process of law as protected by the Sixth and Fourteenth Amendments 

to the United States Constitution and Article I, Sections 10 and 16 of the 

Ohio Constitution; 

II. The trial court violated Vicario’s right to a fair trial and to due process of 

law as protected by the Sixth and Fourteenth Amendments to the United 

States Constitution and by Article I, Sections 10 and 16 of the Ohio 

Constitution when it denied his motion for a mistrial; 

III. Prosecutorial misconduct in the presentation of evidence and in closing 

argument deprived Vicario of his right to a fair trial and due process of law 

as protected by the Sixth and Fourteenth Amendments to the United States 

Constitution and by Article I, Sections 10 and 16 of the Ohio Constitution; 

and 

IV. Vicario’s right to the effective assistance of counsel, guaranteed by the 

Sixth and Fourteenth Amendments to the United States Constitution and by 

Article I, Section 10 of the Ohio Constitution was violated when his counsel 

did not object to highly prejudicial and irrelevant testimony at trial and to 

highly prejudicial and improper statements by the prosecutor during rebuttal 

closing argument and he failed to seek a continuance to allow for finding a 

missing witness. 

II. Manifest Weight of the Evidence 

A. Standard of Review 

{¶8} As we have noted before, 

a challenge to the manifest weight of the evidence attacks the credibility of the 

evidence presented. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997 Ohio 52, 678 

N.E.2d 541 (1997). Because it is a broader review, a reviewing court may determine 

that a judgment of a trial court is sustained by sufficient evidence, but nevertheless 

conclude that the judgment is against the weight of the evidence. Id., citing State v. 

Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955). 

State v. Patterson, 2017-Ohio-8318, 99 N.E.3d 970 (8th Dist.), ¶ 15. 
{¶9} Therefore when, 

[a]nalyzing a claim under the manifest weight standard requires us to “review the 

entire record, weigh all of the evidence and all of the reasonable inferences, 

consider the credibility of the witnesses, and determine whether, in resolving 

conflicts in evidence, the factfinder clearly lost its way and created such a manifest 

miscarriage of justice that the conviction must be reversed[.]” Thompkins at 387, 

citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). We 

are required to give “due deference” to the factfinder’s conclusions because “the 

demeanor of witnesses, the manner of their responses, and many other factors 

observable by [the factfinder] * * * simply are not available to an appellate court 

on review.” State v. Miller, 8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, ¶ 

58, citing Thompkins; State v. Bailey, 8th Dist. Cuyahoga No. 97754, 

2012-Ohio-3955, ¶ 11, quoting State v. Bierbaum, 3d Dist. Seneca No. 13-88-18, 

1990 Ohio App. LEXIS 1204 (Mar. 4, 1990). “Further, * * * [we] must keep in 

mind that questions of weight and credibility are primarily for the trier of fact to 

determine.” State v. Irby, 7th Dist. Mahoning No. 03 MA 54, 2004-Ohio-5929, ¶ 

39, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). 

Accordingly, reversing a previous conviction and ordering a new trial under a 

manifest weight of the evidence claim should be saved for the “exceptional case in 

which the evidence weighs heavily against the conviction.” State v. Bridges, 8th 

Dist. Cuyahoga No. 100805, 2014-Ohio-4570, ¶ 67, citing Thompkins. 

Id. at ¶ 16. 

B. Law and Analysis 

{¶10} In Vicario’s first assignment of error he argues that his convictions were against the 

manifest weight of the evidence. Specifically, he argues that the evidence was too riddled with 

contradiction and uncertainty to support guilty verdicts. First, Vicario challenges Dowell’s 

testimony concerning his abusive behavior. Vicario also contends that the testimony of Dowell 

and Colvin were unreliable because they both made deals with the state in exchange for their 

testimony. Vicario argues that Derrett’s testimony about being able to identify Vicario as the 

shooter was inconsistent and untrue. Finally, Vicario challenges the ballistic evidence regarding 

the shell casings from the gun used in this case. 

{¶11} Dowell testified that she initially did not tell the police that Vicario confessed to the 
shooting because she was afraid of him. This testimony was elicited by the state in a series of 

questions regarding Vicario’s and Dowell’s relationship. The state reasoned that testimony of 

Vicario’s abusive behavior was necessary to show why Dowell would react or act as she did. 

Dowell then testified that Vicario told her the following day that he messed up and “shot those 

people.” Matthews testified that she showed Vicario where to find the people from the fight at 

the convenience store. Then approximately ten minutes later, Vicario left Dowell’s home. (Tr. 

410-412.) After learning of the shooting and going to the scene, Matthews informed the police 

that “[Vicario] did it.” (Tr. 416.) The police asked how did she know, and she responded, “I 

showed [Vicario] where he lived and I just felt like nobody else had any other motive to go shoot 

anybody.” (Tr. 417.) 

{¶12} Colvin testified that Vicario admitted to him that he felt bad that [Vicario] killed M. 

Matthews and he was not the intended target. Vicario challenges Colvin’s and Dowell’s 

credibility because they made deals with the state in exchange for their testimony. However, the 

trial court was aware of the deals that the state offered Colvin and Dowell in exchange for their 

testimony. Additionally, defense counsel extensively cross-examined Colvin and Dowell 

regarding their deals. 

When examining witness credibility, “the choice between credible witnesses and 

their conflicting testimony rests solely with the finder of fact and an appellate court 

may not substitute its own judgment for that of the finder of fact.” State v. Awan, 

22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). A factfinder is free to believe 

all, some, or none of the testimony of each witness appearing before it. State v. 

Ellis, 8th Dist. Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 18. 

State v. Piggee, 8th Dist. Cuyahoga No. 101331, 2015-Ohio-596, ¶ 29. 

{¶13} Finally, as the detectives were investigating the homicide of M. Matthews, a shell 

casing found in Watson’s home where Vicario was occasionally living matched the casings located 

at the crime scene. The ballistics examiner determined that the casing was fired from the same 
firearm. Thereafter, there was a peer review from two other ballistic examiners, each concluding 

that the 13-shell casings found at the crime scene were fired from the same unrecovered gun that 

fired the shell casing found in Watson’s home. The three examiners were in 100 percent 

agreement. This evidence including the testimony of the witnesses were judged to be credible by 

the trier of fact. 

The trier of fact is in the best position to determine whether the proffered testimony 

is credible. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 

1264, ¶ 24. We do not find that this is the “exceptional case in which the evidence 

weighs heavily against the conviction.” Thompkins at 387, quoting State v. 

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

State v. Young, 8th Dist. Cuyahoga No. 106211, 2018-Ohio-3047, ¶ 29. 

{¶14} After reviewing the evidence submitted at trial and the testimony of the witnesses, 

we find that Vicario’s convictions were not against the manifest weight of the evidence and 

overrule his first assignment of error. 

III. Denial of Motion for Mistrial 

A. Standard of Review 

{¶15} “The granting or denial of a motion for mistrial rests in the sound discretion of the 

trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Treesh, 90 

Ohio St.3d 460, 480, 739 N.E.2d 749 (2001), citing Crim.R. 33, and State v. Sage, 31 Ohio St.3d 

173, 182, 510 N.E.2d 343 (1987).” State v. Truhlar, 8th Dist. Cuyahoga No. 103312, 

2016-Ohio-5338, ¶ 31. An abuse of discretion implies that the trial court’s ruling was 

“unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 

450 N.E.2d 1140 (1983). 

B. Law and Analysis 

{¶16} In Vicario’s second assignment of error, he argues that the trial court violated his 
right to a fair trial and to due process of law when it denied his motion for a mistrial. Specifically, 

Vicario argues that the trial court should have granted Vicario’s motion for a mistrial because the 

state’s questioning of Dowell about Vicario’s abusive behavior was highly prejudicial and 

improper evidence. Vicario also argues that the testimony and line of questioning was 

cumulative and prejudicial. 

In analyzing whether an appellant was deprived of a fair trial, an appellate court 

must determine whether, absent the improper questions or remarks, the [trier of 

fact] still would have found the appellant guilty. State v. Sopko, 8th Dist. 

Cuyahoga No. 90743, 2009-Ohio-140, at ¶ 55, citing State v. Maurer, 15 Ohio St.3d 

239, 266, 473 N.E.2d 768 (1984); State v. Dixon, 8th Dist. Cuyahoga No. 68338, 

1997 Ohio App. LEXIS 915 (Mar. 13, 1997). When the prosecutor’s comments 

are found to be improper, it is not enough that there is sufficient other evidence to 

sustain a conviction. Instead, it must be clear beyond a reasonable doubt that absent 

the prosecutor’s comments, the [trier of fact] would have found defendant guilty. 

State v. Clay, 181 Ohio App.3d 563, 576, 2009- Ohio-1235, 910 N.E.2d 14, 23, 

citing State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984). Stated another 

way, “a defendant’s substantial rights cannot be prejudiced where the remaining 

evidence, standing alone, is so overwhelming that it constitutes defendant’s guilt, 

and the outcome of the case would have been the same regardless of evidence 

admitted erroneously.” State v. Hicks, 194 Ohio App.3d 743, 2011-Ohio-3578, 

957 N.E.2d 866, ¶ 30 (8th Dist.), citing State v. Williams, 38 Ohio St.3d 346, 

349-350, 528 N.E.2d 910 (1988). 

State v. Williams, 8th Dist. Cuyahoga No. 95796, 2011-Ohio-5483, ¶ 67. 

{¶17} The state’s questioning of Dowell’s relationship with Vicario was as follows: 

State: Was there a reason that his mom wouldn’t want — your mom 

wouldn’t want [Vicario] to be there? 

Dowell: Yeah, because we would fight a lot. 

* * * 

State: Was he ever violent with you? 

Dowell: Yes. 

State: How was he violent with you? 

Defense objection sustained by the court. 
State: What did he do to you? 

Dowell: He used to hit me. 

Defense objection sustained by the court. 

* * * 

State: The previous day you said you were in a fight with Mr. Vicario? 

Dowell: Yes. 

State: After the fight did you go anywhere? 

Dowell: I went to the hospital. 

(Tr. 236 - 238.) Defense thereafter objected and the trial court responded that “if you’re just 

trying to show that he’s a bad guy, that’s sustained.” (Tr. 238.) The state responded that it [the 

state] was not trying to show that Vicario was a bad guy but was getting to the point. The state 

continued its questioning. 

State: Why are you afraid of Mr. Vicario? 

* * * 

Dowell: He’s put his hands on me multiple times. 

State: Has he ever stated anything to you that makes you afraid of him? 

Dowell: Yes. 

State: What? 

Dowell: That he’s killed other people. 

State: Who? 

Dowell: Rob. 

(Tr. 239.) The defense objected and proffered for the record. 

{¶18} After reviewing this testimony, we find that if any error exists, it is harmless error. 
“Harmless error is defined as ‘any error, defect, irregularity or variance which does not affect 

substantial rights * * *.’ Crim.R. 52(A). When the error does not affect a substantial right, it 

‘shall be disregarded.’ Id.” State v. Lutz, 8th Dist. Cuyahoga No. 80241, 2003-Ohio-275, ¶ 97. 

{¶19} Vicario also contends that Dowell’s testimony was used to show that because Vicario 

was violent or had allegedly killed before, then he killed in this case. 

“‘Evidence that an accused committed a crime other than the one for which he is 

on trial is not admissible when its sole purpose is to show the accused’s propensity 

or inclination to commit crime or that he acted in conformity with bad character.’” 

State v. Ceron, 8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, ¶ 67, quoting State 

v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15, citing 

State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975). However, certain 

exceptions exist to this common law rule. See R.C. 2945.59, Evid.R. 404(B). 

State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 71. 

{¶20} However, the state contends that Dowell’s testimony was used to show why Dowell 

was afraid of Vicario and did not disclose the truth to the police during their initial questioning. 

The trial court listened to the other testimony, reviewed the evidence, and was able to judge the 

credibility of each witness. It appears that the court “considered only the relevant, material, and 

competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.” 

State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987), quoting State v. White, 15 Ohio 

St.2d 146, 239 N.E.2d 65 (1968); State v. Lott, 51 Ohio St.3d 157, 166-167, 555 N.E.2d 644

(1990); State v. Hickenbottom, 8th Dist. Cuyahoga No. 58253, 1991 Ohio App. LEXIS 1139, 3 

(Mar. 21, 1991). Reviewing the record, we find that it reveals that the trial court did not consider 

irrelevant or prejudicial evidence. 

{¶21} Vicario’s second assignment of error is overruled. 

IV. Prosecutorial Misconduct 
{¶22} In Vicario’s third assignment of error, he argues that prosecutorial misconduct in the 

presentation of evidence and in closing argument deprived Vicario of his right to a fair trial and 

due process of law. 

The test for prosecutorial misconduct is whether the prosecutor’s remarks were 

improper and, if so, whether they prejudicially affected the substantial rights of the 

accused. The touchstone of analysis is the fairness of the trial, not the culpability 

of the prosecutor. (Citations omitted.) State v. Eisermann, 8th Dist. Cuyahoga 

No. 100967, 2015-Ohio-591, ¶ 43. Prosecutorial misconduct constitutes 

reversible error only in rare cases. State v. Keenan, 66 Ohio St.3d 402, 405, 613 

N.E.2d 203 (1993). 

State v. Hunt, 8th Dist. Cuyahoga No. 105689, 2018-Ohio-1637, ¶ 23. 

{¶23} Vicario contends that the line of questioning used by the state during Dowell’s 

testimony prejudiced him. He also argues that the state’s closing argument violated his right to 

a fair trial. Vicario points to the state’s statement regarding the witnesses that testified against 

Vicario during the trial. The state stated, “they [the witnesses] risk a great deal. The moment 

they walk out of court, that their life might be in jeopardy.” (Tr. 592.) The state was referring 

to earlier testimony given by one of the witnesses that was present during the fight at the 

convenience store. When the prosecution asked her if she could point to any males that were 

present for the fight at the store, she responded, “You really going to ask me that question?” (Tr. 

113.) The witness testified she was afraid to identify Vicario in open court. 

{¶24} However, Vicario did not object to the state’s closing argument at trial. Thus, he 

has waived the argument, for all but plain error. 

In the absence of objection, any error is deemed to have been waived unless it 

constitutes plain error. To constitute plain error, the error must be obvious on the 

record, palpable and fundamental so that it should have been apparent to the trial 

court without objection. See State v. Tichon, 102 Ohio App.3d 758, 767, 658 

N.E.2d 16 (1995). Moreover, 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 actions. State v. Waddell , 75 Ohio St.3d 163, 

166, 661 N.E.2d 1043 (1996). Notice of plain error is to be taken with utmost 
caution, under exceptional circumstances, and only to prevent a manifest 

miscarriage of justice. State v. Phillips, 74 Ohio St.3d 72, 83, 656 N.E.2d 643 

(1995). 

State v. Potter, 8th Dist. Cuyahoga No. 81037, 2003-Ohio-1338, ¶ 43. 

{¶25} In addition, 

[g]enerally, conduct of a prosecuting attorney at trial shall not be grounds for 

reversal unless the conduct deprives the defendant of a fair trial. State v. 

Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987); State v. Papp, 64 Ohio 

App.2d 203, 412 N.E.2d 401 (1978). An appellant is entitled to a new trial only 

when a prosecutor asks improper questions or makes improper remarks and those 

questions or remarks substantially prejudiced appellant. State v. Smith, 14 Ohio 

St.3d 13, 470 N.E.2d 883 (1984). 

Id. at ¶ 46. 

{¶26} Also, 

[t]he misconduct of a prosecutor cannot be grounds for error unless the conduct 

deprives the defendant of a fair trial by prejudicially affecting the substantial rights 

of the accused. State v. Lane, 108 Ohio App.3d 477, 483, 671 N.E.2d 272 (1995). 

In a bench trial, the trial court is presumed to rely only on relevant, material and 

competent evidence in arriving at its judgment. Id. at 484, citing State v. Richey, 

64 Ohio St.3d 353, 357-358, 595 N.E.2d 915 (1992). 

State v. Williams, 8th Dist. Cuyahoga No. 77153, 2000 Ohio App. LEXIS 4767 (Oct. 12, 2000). 

{¶27} In our review of Dowell’s testimony and the state’s statements in closing arguments, 

we cannot determine that Vicario was prejudiced or deprived of a fair trial. Outside of the 

testimony or the closing arguments, there is still an overwhelming amount of evidence that sustains 

the trial court’s finding of Vicario’s guilt. Vicario has not sufficiently demonstrated that he was 

substantially prejudiced. 

{¶28} Vicario’s third assignment of error is overruled. 

V. Ineffective Assistance of Counsel 

A. Standard of Review 

{¶29} In order to substantiate a claim of ineffective assistance of counsel, 
[a] defendant must establish that counsel’s performance was deficient and that the 

defendant was prejudiced by the deficient performance. Strickland v. 

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel 

will only be considered deficient if his or her conduct fell below an objective 

standard of reasonableness. Id. at 688. 

When reviewing counsel’s performance, this court must be highly deferential and 

“must indulge a strong presumption that counsel’s conduct [fell] within the wide 

range of reasonable professional assistance.” Id. at 689. To establish resulting 

prejudice, a defendant must show that the outcome of the proceedings would have 

been different but for counsel’s deficient performance. Id.

State v. Jackson, 8th Dist. Cuyahoga No. 104132, 2017-Ohio-2651, ¶ 39-40. 

B. Law and Analysis 

{¶30} In Vicario’s fourth assignment of error, he contends that his right to effective 

assistance of counsel was violated when his counsel did not object to highly prejudicial and 

irrelevant testimony at trial and to highly prejudicial and improper statements by the prosecutor 

during rebuttal closing argument, and he failed to seek a continuance to allow for finding a missing 

witness. 

Because there are countless ways to provide effective assistance in any given case, 

judicial scrutiny of a lawyer’s performance must be highly deferential. State v. 

May, 8th Dist. Cuyahoga No. 102482, 2015-Ohio-4275, 49 N.E.3d 736, ¶ 32, citing 

Strickland, 466 U.S. 668 at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. “Decisions on 

strategy and trial tactics are granted wide latitude of professional judgment, and it 

is not the duty of a reviewing court to analyze trial counsel’s legal tactics and 

maneuvers.” State v. Quinones, 8th Dist. Cuyahoga No. 100928, 

2014-Ohio-5544, ¶ 18. 

State v. Bell, 8th Dist. Cuyahoga No. 105000, 2017-Ohio-7168, ¶ 38. 

{¶31} We have already decided that Dowell’s testimony was not prejudicial. We have 

also ruled that the state’s rebuttal closing argument did not deprive Vicario of a fair trial. 

However, we must address Vicario’s claim that his counsel was ineffective because counsel failed 

to seek a continuance to attempt to locate an unavailable witness. 
“In order to obtain a reversal on ineffective assistance of counsel based on a failure 

to subpoena a witness, a defendant must demonstrate that the testimony of the 

witness would be of significant assistance to the defense.” State v. Varner, 5th 

Dist. Stark No. 98CA00016, 1998 Ohio App. LEXIS 4707 (Sept. 14, 1998), quoting 

State v. Reese, 8 Ohio App.3d 202, 203, 456 N.E.2d 1253 (1st Dist.1982). 

Cleveland v. Thompson, 8th Dist. Cuyahoga No. 101038, 2015-Ohio-412, ¶ 11. 

{¶32} The witness in question was placed on the state’s witness list. However, the state 

was not able to locate him. Vicario’s trial counsel stated in his opening statement that he believed 

that there was a witness who gave the police a physical description that did not match Vicario. 

During trial, the state presented testimony from Detective Joselito Sandoval (“Det. Sandoval”), 

stating that the witness initially gave Vicario’s description, but added that the shooter may have 

had dreadlocks. Vicario does not have dreadlocks. Det. Sandoval stated that the witness was 

unable to make a positive identification of the shooter. Det. Sandoval stated that the witness 

requested a profile picture of the shooter because the witness saw the side of the shooter’s face as 

the shooter ran away. A profile picture could not be presented to the witness during the photo 

array. (Tr. 572.) The record reveals that the testimony the unlocated witness would have given 

was entered through the testimony of Det. Sandoval in the presence of the trial court. Vicario 

has not demonstrated that the witnesses’ presence would be of significant assistance to him. We 

find that a continuance to subpoena the witness was unnecessary because the testimony of the 

witness would not have been of significant assistance to the defense. 

{¶33} In oral argument, counsel stated that trial counsel failed to proffer the need to seek a 

continuance to try to locate the witness. “A failure to proffer does not constitute ineffective 

assistance of counsel * * *.” State v. Warren, 8th Dist. Cuyahoga No. 83823, 2004-Ohio-5599, 

¶ 31. “[A]s a matter of trial strategy, counsel may have declined to make a proffer which would 
have highlighted the weakness of the defense, and we will not criticize what appears to be a sound 

trial strategy.” Id., citing State v. White, 82 Ohio St.3d 16, 693 N.E.2d 772 (1998). 

{¶34} Vicario’s fourth assignment of error is overruled. 

{¶35} Judgment affirmed. 

It is ordered that the appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common pleas court 

to carry this judgment into execution. 

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

of Appellate Procedure. 

______________________________________ 

ANITA LASTER MAYS, JUDGE 

EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY; 

MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY