[Cite as State v. Gaona, 2012-Ohio-3622.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsGEORGE GAONA 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 11 CA 61 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of 

 Common Pleas, Case Nos. 10 CR 598 

 and 11 CR 103 

JUDGMENT: Affirmed in Part; Reversed in Part and 

Remanded 

DATE OF JUDGMENT ENTRY: August 9, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KENNETH W. OSWALT WILLIAM T. CRAMER 

PROSECUTING ATTORNEY 470 Olde Worthington Road 

20 South Second Street, Fourth Floor Suite 200 

Newark, Ohio 43055 Westerville, Ohio 43082 
Licking County, Case No. 11 CA 61 2

Wise, J. 

{¶1} Appellant George Gaona appeals his conviction, in the Court of Common 

Pleas, Licking County, for the aggravated murder of Robert Ebright. Appellee is the 

State of Ohio. The relevant facts leading to this appeal are as follows. 

{¶2} In July 2007, Robert Ebright was retired and living alone in Pataskala, 

Ohio. He was unmarried and had no children, but he kept busy doing occasional odd 

jobs and taking care of about twenty dogs, which he rarely left unattended. Toward the 

end of the month, Ebright’s cousin, Ruth Fleming, who often visited him, became 

concerned that she had not had any contact with him for several weeks, i.e., since 

shortly after July 4, 2007. Fleming and her husband thereafter drove past Ebright’s 

residence several times, but did not see Ebright’s red Ford Ranger pickup truck parked 

outside as usual. 

{¶3} On July 19, 2007, Ebright went to a Huntington Bank branch in Pataskala 

and took money from an IRA, leaving with $4,100.00 in cash. He told a couple of 

representatives of the bank that he planned to buy a truck for a new business. One of 

the bank employees, Tom Greer, noticed that another individual was with Ebright in his 

pickup when he arrived at the bank. 

{¶4} Ebright’s good friend and former co-worker Rick Blakely spoke with him by 

telephone on July 20, 2007, while Blakely was commencing a one-week vacation in 

Myrtle Beach. At that time, Ebright mentioned that he was going to start a tree trimming 

business and planned to purchase a bucket truck for that purpose with assistance from 

someone named “George.” After Blakely returned from vacation in late July, he tried to 

call Ebright’s cell phone, but his calls kept going to voicemail. 
Licking County, Case No. 11 CA 61 3

{¶5} Blakely drove by Ebright’s residence on August 9, 2007 and saw the 

Ranger pickup was not there. Blakely saw a number of the dogs outside. Blakely drove 

by again on August 16, 2007, but this time the dogs were gone. Blakely and his wife 

contacted Ms. Fleming, Ebright’s cousin, and the decision was made to call law 

enforcement. A sheriff deputy responded and checked the inside and outside of 

Ebright’s residence. One dog was found dead near the garage; it was later determined 

that the remainder had been taken in by a local animal shelter. 

{¶6} Chris May, who maintained an office building on Lancaster Road, next 

door to Appellant Gaona’s residence, recalled being introduced to Ebright by appellant 

in June or July 2007. May was having work done on the office property and barn that 

summer, and he was there “quite a bit.” At one point, Ebright stopped by appellant’s 

residence, and the two men mentioned to May that they planned to go into the tree 

business together. Appellant moved from the Lancaster Road property on or about 

August 1, 2007. 

{¶7} Appellant’s then-girlfriend was Sandra Holling. She testified at trial under a 

plea deal wherein the State would consider reducing some of her pending charges. 

Holling admitted, inter alia, that she had “helped bury [Ebright] and clean up the mess.” 

Tr. at 417. She testified that she had known appellant since they were children living in 

Texas. They had dated and lived together off and on for about ten years, and were 

living together in July 2007. Tr. at 417-419. Holling had met some of appellant’s 

neighbors, including Chris May. Tr. at 419-420. Holling also met Ebright through 

appellant. Appellant told her that he and Ebright were going to open a tree cutting 
Licking County, Case No. 11 CA 61 4

business. She noticed that whenever Ebright came over to their house on Lancaster 

Road, he always drove over in a red Ford pickup with a white cap. Tr. at 420-422. 

{¶8} Holling claimed that during an argument in July 2007, appellant said that 

Holling needed “to show him respect” and that he was going to show her what kind of 

man he was by killing someone. Holling was afraid that he might kill her, so she 

responded by suggesting that he kill Ebright. Tr. at 423. 

{¶9} According to Holling, they planned the killing for about a week, including 

considering a place to bury the body. Appellant built a homemade silencer by cutting 

the end off a water bottle, stuffing it with cotton balls, and duct-taping the end. 

Appellant was going to get Ebright into appellant’s garage by asking him to work on a 

van, and then kill him, roll him up in a tarp, and bury him. Appellant planned to use a 

silver automatic pistol that he said he got from Ebright. Holling agreed to help appellant 

move the body. Tr. at 423-433. 

{¶10} Evidence at trial included a rental agreement from Paisley Rentals dated 

July 25, 2007, showing that someone purporting to be George Gaona had attempted to 

rent a Bobcat loader with a front bucket. However, the rental was never finalized, as 

the customer needed to provide a credit card number before the Bobcat would be 

delivered. Tr. at 374-377; State’s Ex. 2C1. However, members of a crew from Messina 

Concrete working on Chris May's barn on Lancaster Road at that time later testified 

that appellant asked them to dig a hole for him so he could burn some trash. They 

used their loader to dig a hole in the back, by a cell tower, about five feet wide, eight or 

nine feet long, and three or four feet deep. Tr. at 384-385, 388-389, 394-395. Some of 

the crew also recalled appellant showing them a silver or chrome pistol. 
Licking County, Case No. 11 CA 61 5

{¶11} On the day of the murder, Ebright came over to appellant’s residence in 

the afternoon. Appellant at some point took him out to the garage. But after a while, 

appellant came inside and told Holling that there were too many people outside, so he 

was going to get Ebright into the basement to look at some tools, and then kill him. 

Appellant took Ebright to the basement while Holling waited upstairs. Holling recalled 

that appellant later told her he had shot Ebright in the back of the head while Ebright 

was on his knees looking at some items on the floor. Tr. at 468. At some point, 

appellant came back up without Ebright and told Holling “we got to go.” They then 

drove away in Ebright's truck. Tr. at 434-437. 

{¶12} Appellant and Holling drove to a hotel in Columbus and stayed overnight. 

At the hotel, appellant told her that he shot Ebright three times in the back of the head 

while he was kneeling on the floor looking at something. Tr. at 438-439, 468. At some 

point, Holling saw appellant with some money in a bank envelope that he said he had 

obtained from the glove box in Ebright's truck. Tr. at 437. The manager at the 

Columbus hotel confirmed that appellant had rented a room for one night on July 23, 

2007. Tr. at 401. Appellant invited a friend, Stephanie Perkins, to come over to the 

hotel. Perkins brought her son and they swam in the hotel pool. The next day appellant 

and Holling went to Perkins' house and spent a couple of days “partying” there. 

Appellant had a large amount of money on him. Appellant did not stay the entire time, 

but came and went. Tr. at 439-440. Perkins later testified that appellant told her that 

they were in Columbus doing some asphalt work for the owner of the hotel and had 

gotten a free room in exchange. Perkins remembered that appellant was driving a red 

pickup truck with a white cap. Tr. at 695-702. 
Licking County, Case No. 11 CA 61 6

{¶13} When appellant and Holling went home, using Perkins’ car, they first 

stopped by Ebright's house to feed his dogs. They then went to their house in the 

middle of the night to take care of Ebright’s body. They got three tarps from the garage, 

laid them out on the basement floor, and rolled the body onto them. They tied up the 

tarps with electrical cords and rope, and dragged the body up the stairs. 

{¶14} Appellant pulled Holling's truck up to the house and they pushed the body 

up into the truck bed. They drove around to the back of the house by a cell tower and 

put the body into a previously-dug hole in the ground. 

{¶15} While appellant covered the body with dirt, Holling went back inside and 

started cleaning up the concrete-floored basement. Holling swept some debris into the 

drains and bleached the basement room. Holling asserted it was appellant’s idea to 

use bleach to remove the blood. Appellant burned some of the items, including the 

broom that Holling had used and some of the carpet pieces that were in the basement. 

Holling also put some debris, along with three shell casings, into a gray bucket. The 

bucket was supposed to go outside to be burned, but Holling “forgot about it.” Tr. at 

441-446, 452-459, 467, 505. 

{¶16} Appellant and Holling left Ebright's truck at Perkins' house initially, then 

picked it up the next day after finishing the clean-up. They thereupon drove Ebright's 

truck to Texas. Holling did not state what ultimately happened to Ebright's truck, but 

she claimed that appellant threw the gun and Ebright's cell phone into a lake in Texas. 

Tr. at 452, 459-461, 467. Furthermore, Perkins testified that after the couple had fled to 

Texas, appellant called and asked her if anyone had come around asking for "Bob." Tr. 

at 702-703. 
Licking County, Case No. 11 CA 61 7

{¶17} After about a week in Texas, Holling took a bus back to Ohio. Perkins 

picked her up from the bus stop and took her back to the house. At some point, 

sheriff's deputies came around asking about Ebright. Holling told them that he and 

appellant were in Dayton doing some tree work. Tr. at 462-463. Holling called appellant 

and told him about the deputies. At the time, appellant was on a bus heading back to 

Ohio and was quite upset by the news. When Holling picked him up at the bus stop, 

they went back to the house, packed, rested a little bit, and left for Texas before dawn 

in Holling's truck. Tr. at 465-467. 

{¶18} After they moved to Texas, Holling's sister asked her about a murder that 

happened in Ohio and showed her a picture of Ebright. Holling broke down and told her 

sister that appellant had killed someone in Ohio, but denied that it was Ebright at that 

time. Tr. at 506-508, 523-524. 

{¶19} Holling then began cooperating with law enforcement. At the request of 

law enforcement, Holling engaged appellant in a recorded conversation about the 

murder, which was later played for the jury. See Exhibit 9-H; Tr. at 468-470. During the 

conversation, Holling told appellant that the police had come down to Texas to talk with 

her. Appellant expressed concerns about what she would tell them and about whether 

she would testify against him. Tr. at 468-470. Holling suggested that she could tell the 

police that Ebright was trying to hurt her when appellant killed him. Tr. at 470. Holling 

also told appellant that she did not think she cleaned up properly, in reference to the 

gray bucket with the shell casings that was left in the basement. Tr. at 471. Appellant 

never denied shooting Ebright in these recorded conversations. Tr. at 472. Holling 

interpreted some of what appellant said to mean that she should stay quiet. Tr. at 482. 
Licking County, Case No. 11 CA 61 8

Holling told appellant that she told her mother that he killed Ebright, and that her 

mother had told the police. Appellant got mad and walked away; when he came back, 

he suggested that she deny having the conversation with her mother because it was 

not recorded. Tr. at 482-484. At some point, appellant told Holling that the killing was 

self-defense. Tr. at 484. Appellant also suggested that they get married so that she 

could not be forced to testify against him. Tr. at 485-486. On cross-examination, 

Holling conceded that appellant never admitted to anything during the recorded 

conversations and repeatedly told her to get an attorney before she talked to anyone. 

Tr. at 510. Holling also conceded that in March 2009, she gave a different summary of 

what happened and lied about some of the details. Tr. at 508. 

{¶20} The State also presented the testimony of a jailhouse informant named 

Travin Lister. Lister had prior convictions for burglary and receiving stolen property. Tr. 

at 649. In 2010, Lister was charged with robbery and kidnapping in Licking County. 

Lister claimed that at some point in 2010, appellant told him that he shot a man and 

buried him in his backyard. Lister told the detectives and his attorney in hopes of 

getting a deal on his pending kidnapping and robbery charges. Lister met with 

prosecutors and entered into an agreement to record his conversations with appellant 

and get a confession. Tr. at 649-651, 684. Lister's kidnapping and robbery charges 

were ultimately dismissed pursuant to the agreement. Tr. at 667-668, 684. Lister was 

not able to record all of his conversations with appellant, but portions of the recordings 

were played for the jury. Tr. at 657-658. During their conversations, appellant was 

concerned that Holling would testify against him, but he thought it would backfire on 

her. Tr. at 653. Lister told appellant it was a mistake not to kill Holling and put her in the 
Licking County, Case No. 11 CA 61 9

grave with the victim. Appellant responded by joking about having an alibi. Tr. at 655-

657. Appellant was also concerned that his neighbor, Chris May, might testify against 

him. Appellant asked Lister to intimidate May. Appellant allegedly gave Lister 

information about May, including his phone numbers, the businesses he owned, and 

the number of children he had. Tr. at 658-660. 

{¶21} During one of the recorded conversations, appellant told Lister that he was 

going to have somebody burn down the house where the murder was committed. Lister 

offered to burn down the house for a cheaper price and appellant agreed. Appellant 

drew Lister a map to the house and gave him instructions on how to do it. Lister 

suggested starting the fire in the middle of the house, but appellant wanted him to start 

it in the basement. They agreed to use a code to discuss the arson. They subsequently 

used the code to communicate about it and Lister falsely told appellant that he had 

done the job. Tr. at 661-667, 686-688. 

{¶22} On March 7, 2009, more than eighteen months after Ebright went missing, 

investigators located and exhumed Ebright's body. Tr. at 556. Investigators did not find 

any guns, but they found some clothing in the makeshift grave, including a pair of 

boots. Tr. at 580-581. Three tarps were around or near the body. Tr. at 587. In the 

basement of the house, investigators did not find any blood, but they did find three .22 

caliber shell casings among some debris inside a grey tote. Tr. at 621, 624-627. They 

also found some PVC pipe that was similar to a piece of pipe that was found wrapped 

up with the body and a lamp that matched some of the electrical cord that had been 

used to tie the tarps and body. Tr. at 628-631. During the autopsy, several metal 

fragments were found in Ebright's head, including two large pieces that indicated the 
Licking County, Case No. 11 CA 61 10

presence of at least two bullets. Tr. at 730, 735-736. Although they were unable to find 

any wounds on the skin, investigators found three injuries to the skull that were 

consistent with bullet wounds. Tr. at 731-732, 737-741. A BCI ballistics investigator 

testified that the unfired bullet found on the property was a .22 caliber Winchester 

Super X long rifle rimfire cartridge. Tr. at 791-792. The three casings found in the 

basement were also .22 rimfire cartridges. Tr. at 793-794. The casings had all been 

fired from the same gun, which was probably a semi-automatic. Tr. at 795, 801-802, 

805-806, 820. The parties stipulated that no detectable DNA evidence or latent 

fingerprints were recovered. Tr. at 870-872. 

{¶23} On October 29, 2010, the Licking County Grand Jury indicted appellant on 

one count of aggravated murder (with a firearm specification), murder (with a firearm 

specification), tampering with evidence, gross abuse of a corpse, conspiracy to commit 

arson, and witness intimidation, under case 10CR598. A second count of intimidation 

of a witness was later filed under case number 11CR103. 

{¶24} Appellant entered a plea of not guilty, and the case proceeded to a jury 

trial. 

{¶25} Prior to trial, the intimidation charge in case number 10CR598 was 

dismissed at the State's request, and during the trial, the court dismissed the second 

charge of intimidation under case number 11CR103, pursuant to Crim.R. 29. The jury 

found appellant guilty of all of the remaining charges. The trial court merged the murder 

count into the aggravated murder count and sentenced appellant to 30 years to life, 

plus three years consecutive for the firearm specification. Additionally, the court 

imposed five years consecutive for tampering, one year consecutive for gross abuse of 
Licking County, Case No. 11 CA 61 11

a corpse, and one year consecutive for conspiracy to commit arson, for an aggregate 

term of 40 years to life. See Sentencing Entry, May 10, 2011. 

{¶26} Appellant’s first appeal was dismissed on December 16, 2011, for want of 

an appellant’s brief, despite several time enlargements. On January 27, 2012, this 

Court reopened the appeal, and new appellate counsel was appointed. 

{¶27} Appellant herein raises the following six Assignments of Error: 

{¶28} “I. APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL DUE 

PROCESS RIGHT TO THE PRESUMPTION OF INNOCENCE WAS VIOLATED 

WHEN A GOVERNMENT INFORMANT INFERRED THAT HE SPOKE TO 

APPELLANT WHEN THEY WERE IN JAIL. 

{¶29} “II. APPELLANT'S RIGHT TO REMAIN SILENT UNDER THE STATE 

AND FEDERAL CONSTITUTIONS WAS VIOLATED WHEN THE PROSECUTOR 

COMMENTED DURING CLOSING ARGUMENT THAT AN INNOCENT PERSON 

WOULD HAVE DENIED THE ALLEGATIONS AND ADVISED HIS CO-DEFENDANT 

TO SPEAK TO THE POLICE . 

{¶30} “III. APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL 

CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN 

COUNSEL FAILED TO OBJECT DURING CLOSING ARGUMENT TO THE 

PROSECUTOR'S COMMENTS ON HIS SILENCE. 

{¶31} “IV. THE TRIAL COURT DEPRIVED APPELLANT OF HIS STATE AND 

FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS BY PROVIDING THE 

JURY WITH A STANDARD EXPERT WITNESS INSTRUCTION OVER APPELLANT'S 

OBJECTIONS. 
Licking County, Case No. 11 CA 61 12

{¶32} “V. THE CUMULATIVE EFFECT OF THE ERRORS IN THE TRIAL 

DEPRIVED APPELLANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS 

TO A FAIR TRIAL. 

{¶33} “VI. THE TRIAL COURT VIOLATED APPELLANT'S STATE AND 

FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, AND R.C. 2967.28, BY 

IMPOSING THREE YEARS OF POST-RELEASE CONTROL AT SENTENCING FOR 

THIRD (NON-SEX OFFENSE), FOURTH, AND FIFTH DEGREE FELONIES. 

I. 

{¶34} In his First Assignment of Error, appellant contends his right to due 

process was violated by the reference a State’s witness made in his testimony 

suggesting jail deputies had been in the presence of appellant. We disagree. 

{¶35} During the cross-examination of Travin Lister, who had talked to appellant 

while the two men were held in the same jail, he was asked by defense counsel if he 

thought that appellant may have lied to him. Lister replied: "He was telling the truth. I 

found out he was telling the truth later from the deputies." Tr. at 679. Defense counsel 

registered an objection and asked to approach. During a sidebar, counsel indicated 

concern that Lister's reference to deputies may have warranted a mistrial. The trial 

court responded that the prosecutor had already elicited from Lister the fact that he 

was incarcerated and being held on charges. Defense counsel thereupon returned to 

the cross-examination. Tr. at 679-680. 

{¶36} Appellant herein invokes Estelle v. Williams (1976), 425 U.S. 501, 96 S.Ct. 

1691, 48 L.Ed.2d 126, wherein the United States Supreme Court determined that a 

juror's judgment might be affected by a defendant's appearance in prison clothing. In 
Licking County, Case No. 11 CA 61 13

other words, as explained by the Fourth District Court of Appeals in State v. Evans,

Scioto App.No. 05CA3002, 2006-Ohio-2564, ¶ 41, “[b]eing compelled to wear prison or 

jail clothing, like being restrained, erodes the presumption of innocence.” Estelle's 

rationale is predicated upon the theory that jail attire serves as a constant reminder that 

the accused is in custody. See Holbrook v. Flynn (1986), 475 U.S. 560, 567. Estelle 

was also predicated upon the fact that "compelling an accused to wear jail clothing 

furthers no essential state policy." See Estelle, 425 U.S. at 505. 

{¶37} In the case sub judice, of course, appellant was not wearing jail garb at 

trial; however, he maintains that the inference that he was in jail while talking to Lister 

was likewise prejudicial to his enjoyment of a presumption of innocence. We first note 

that because Lister's comments merely referenced "the deputies", it is not certain that 

any juror would have attributed this comment to be a reference to jail deputies, let 

alone jail deputies that provided security for appellant, as opposed to deputies Lister 

may have encountered as part of his own pending charges. Nevertheless, we have 

recognized that testimony alluding to a defendant being transported from jail in a police 

cruiser is not the factual equivalent of forcing a defendant to appear in court in jail 

attire. See State v. Small, Delaware App.No. 10CAA110088, 2011-Ohio-4086, ¶ 59. 

Similarly, in State v. Sharp, Butler App.No. CA2009-09-236, 2010-Ohio-3470, ¶ 107, 

the Twelfth District Court of Appeals was not persuaded that “one isolated comment 

rises to the level of an Estelle violation ***." 

{¶38} We therefore hold the single isolated comment about the presence of 

deputies falls well short of the type of "constant reminder" of a defendant's custodial 

status as discussed in Estelle. We therefore find no merit in appellant’s attempt to 
Licking County, Case No. 11 CA 61 14

extend Estelle to the circumstances of the case sub judice, and we therefore find no 

reversible error in the trial court’s allowance of Lister’s testimony in this regard. 

{¶39} Appellant's First Assignment of Error is overruled. 

II. 

{¶40} In his Second Assignment of Error, appellant contends the prosecutor 

improperly commented during closing arguments regarding the constitutional 

guarantee against self-incrimination. We disagree. 

{¶41} At trial, the jury heard recorded conversations between appellant and 

Sandra Holling, during which appellant advised Holling, among other things, to get an 

attorney and not to talk to the police. In reference to those conversations, the 

prosecutor stated the following during closing arguments: 

{¶42} "So, the setting that you get these recordings in makes perfect sense. 

Perfect sense. The nature of the conversation, what's said, what's not said. If an 

innocent man is confronted with a girlfriend who is talking about telling her mother that 

you killed Bob, an innocent man says, what, what would you do that for. That's what an 

innocent person does. They want to talk to you. Fine, honey, go tell them the truth. I 

wasn't there. You know it, I know it. Tell them you don't know anything. That's what 

innocent people do." Tr. at 999-1000. 

{¶43} The Fifth Amendment to the United States Constitution and Article I, 

Section 10 of the Ohio Constitution provide that no person shall be compelled to testify 

against himself or herself in a criminal case. The use of a defendant's pre-arrest 

silence as substantive evidence of guilt violates the Fifth Amendment privilege against 

self-incrimination. State v. Shaffer, Richland App.No. 2003-CA-0108, 2004-Ohio-3717, 
Licking County, Case No. 11 CA 61 15

¶ 19, quoting State v. Leach (2004), 102 Ohio St.3d 135, 807 N.E.2d 335, 2004-Ohio2147. However, the Fifth Amendment right against self-incrimination is a personal right 

“that can only be invoked by the individual whose testimony is being compelled.” In re 

Cox, Stark App.No. 2005CA00233, 2006-Ohio-4579, ¶ 61, quoting Moran v. Burbine

(1986), 475 U.S. 412, 433, 106 S.Ct. 1135, 89 L.Ed.2d 410, f.n. 4. See, also, Bigby v. 

United States I.N.S. (U.S.C.A. 11, 1994), 21 F.3d 1059, 1062, f.n.3 (recognizing that 

the Fifth Amendment privilege may not be vicariously asserted). 

{¶44} Accordingly, we find no merit in appellant’s essential argument under 

these circumstances that his Fifth Amendment rights were violated when prosecutorial 

closing arguments were made, without defense objection, alluding to appellant’s 

encouragement to Holling to assert her right to remain silent. 

{¶45} Appellant's Second Assignment of Error is therefore overruled. 

III. 

{¶46} In his Third Assignment of Error, appellant contends that he was deprived 

of the effective assistance of counsel at his trial where said counsel failed to object to 

the prosecutor’s comments during closing arguments regarding the constitutional 

guarantee against self-incrimination. We disagree. 

{¶47} Our standard of review regarding “ineffective assistance” claims is set 

forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 

674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio St .3d 

136, 538 N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim 

for ineffective assistance of counsel. First, we must determine whether counsel's 

assistance was ineffective; whether counsel's performance fell below an objective 
Licking County, Case No. 11 CA 61 16

standard of reasonable representation and was violative of any of his essential duties 

to the client. If we find ineffective assistance of counsel, we must then determine 

whether or not the defense was actually prejudiced by counsel's ineffectiveness such 

that the reliability of the outcome of the trial is suspect. This requires a showing that 

there is a reasonable probability that but for counsel's unprofessional error, the 

outcome of the trial would have been different. Id. Trial counsel is entitled to a strong 

presumption that all decisions fall within the wide range of reasonable professional 

assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267. A 

reviewing court “need not determine whether counsel's performance was deficient 

before examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697. 

{¶48} Appellant presently re-directs us to the same prosecutorial commentary at 

issue in his Second Assignment of Error, and maintains that defense counsel should 

have promptly objected at that point in closing arguments. However, based on our prior 

analysis, we are unable to find that defense counsel’s decision not to object was 

violative of any of his essential duties to his client at trial. 

{¶49} Appellant's Third Assignment of Error is therefore overruled. 

IV. 

{¶50} In his Fourth Assignment of Error, appellant contends the trial court denied 

him of his right to due process in its provision of certain expert witness jury instructions, 

over defense counsel’s objection. We disagree. 

{¶51} After the presentation of evidence in the case sub judice, which included 

testimony from deputy coroner/chief pathologist, a ballistics/firearm scientist, and two 
Licking County, Case No. 11 CA 61 17

forensic scientists, the following exchange between the attorneys took place before the 

trial judge: 

{¶52} “MR. COOPER: Your Honor - - Your Honor, we would object to the jury 

instructions as to the inclusion of language regarding expert witnesses. During the 

trial, Your Honor, it’s our position that no witness was identified to the jury as being an 

expert. That the qualification of an individual as an expert normally calls for the 

dissertation of their background and why they should - - would be considered an 

expert, and then we would have an opportunity to cross on the issue of whether that 

person is, in fact, an expert. 

{¶53} “That never happened during the trial. Not that we waived it, but no 

person or witness was ever identified as being qualified as an expert. So, if no witness 

was ever identified through any of the direct examination of any witness to the jury as 

being an expert, we think it would be inappropriate to include language in the jury 

instruction as to how to regard an expert’s testimony. Nobody was ever designated as 

an expert. 

{¶54} “So, to include that would cause the jurors to assume that individuals who 

testified were experts without any qualifying features, so, therefore, we feel that 

language would be inappropriate to include in the jury instruction. 

{¶55} “THE COURT: Mr. Oswalt. 

{¶56} “MR. OSWALT: Your Honor, if it please the Court. There is clearly the 

testimony from several individuals of an expert nature and, therefore, it’s appropriate to 

describe them as such. If Mr. Cooper or Mr. Wolfe felt that the foundation for them 
Licking County, Case No. 11 CA 61 18

expressing expert opinions was insufficient, their obligation was to object on a timely 

basis. 

{¶57} “*** 

{¶58} “”So, if the - - if Mr. Cooper felt that there was insufficient foundation to 

give expert opinions, then he should have objected on a timely basis. 

{¶59} “*** 

{¶60} “”There was no such objection here, and as a result, there was no 

requirement under Ohio law or any other that the State tender somebody for a 

formalized request of the Court to designate them as an expert. In fact, as I’ve 

mentioned, these Courts find that to be in error. 

{¶61} “THE COURT: Anything else, Mr. Cooper? 

{¶62} “MR. COOPER: Well, I would submit, Your Honor, I don’t believe that’s -- 

that that case law applies to this case. We can’t object to somebody being an expert if 

we don’t know they’re trying to qualify somebody as an expert. If they never say this 

person is an expert. And just to say I work for BCI and I’ve gone to training classes 

doesn’t necessarily mean that person is an expert on what they’re testifying to. If they 

didn’t tell us, if they didn’t notice us, if they didn’t tell the jury, then how could we object 

to the unstated, subjective intent of the prosecution that somebody is an expert witness 

without telling anybody. Didn’t even tell the witness that they’re an expert. So, how 

are we supposed to object. 

{¶63} “THE COURT: Well, I’ll include the instruction clearly the - - several 

witnesses did meet the requirements to be determined experts should they have been 
Licking County, Case No. 11 CA 61 19

proffered or found to be that way by virtue of their background and training and their 

experience. 

{¶64} “The instruction simply provides the jurors with another method of 

assessing their testimony and goes to their credibility and doesn’t highlight or diminish 

their testimony either way. And on that basis, I will overrule your objection to that 

section of the charge.” 

{¶65} Tr. at 911-915. 

{¶66} The Supreme Court of Ohio has stated that “a witness may qualify as an 

expert by reason of his or her ‘specialized knowledge, skill, experience, training, or 

education regarding the subject matter of the testimony.’ ” State v. Foust, 105 Ohio 

St.3d 137, 2004–Ohio–7006, ¶ 77, 105 Ohio St.3d 137, 823 N.E.2d 836, quoting 

Evid.R. 702(B). Our standard for appellate review of jury instructions is whether the trial 

court's decision on giving a requested instruction constituted an abuse of discretion 

under the facts and circumstances of the case. See State v. DeMastry, 155 Ohio 

App.3d 110, 2003-Ohio-5588, ¶ 72, citing State v. Wolons (1989), 44 Ohio St.3d 64, 

68. In addition, because the failure to properly instruct the jury is not in most instances 

structural error, the harmless-error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 

824, 17 L.Ed.2d 705, applies to a failure to properly instruct the jury, for it does not 

necessarily render a trial fundamentally unfair or an unreliable vehicle for determining 

guilt or innocence. State v. Bleigh, Delaware App.No. 09-CAA-03-0031, 2010-Ohio1182, ¶ 119, citing Neder v. United States (1999), 527 U.S. 1, 119 S.Ct. 1827, 144 

L.Ed.2d 35. 
Licking County, Case No. 11 CA 61 20

{¶67} Although case law exists in Ohio indicating that forensic scientists 

testifying for the State in a criminal prosecution should be qualified as experts outside 

the presence of the jury (see State v. Bolton, Cuyahoga App.No. 96385, 2012-Ohio169, ¶ 62, citing United States v. Johnson (C.A. 6, 2007), 488 F.3d 690), we find no 

abuse of discretion in the trial court’s allowance of the final expert witness instruction to 

the jury under the circumstances of this case. Moreover, given the level of eyewitness 

and circumstantial evidence presented by the State as to appellant’s guilt, as set forth 

in our initial recitation of facts, we find any potential error in this regard would have 

been harmless. Chapman, supra. 

{¶68} Appellant's Fourth Assignment of Error is overruled. 

V. 

{¶69} In his Fifth Assignment of Error, appellant contends he was deprived of a 

fair trial based on the cumulative effect of errors in the trial court. We disagree. 

{¶70} The doctrine of cumulative error provides that a conviction will be reversed 

where the cumulative effect of evidentiary errors in a trial deprives a defendant of the 

constitutional right to a fair trial even though each of numerous instances of trial court 

error does not singularly constitute cause for reversal. State v. DeMarco (1987), 31 

Ohio St.3d 191, 509 N .E.2d 1256, paragraph two of the syllabus. The doctrine has 

been expanded to include the cumulative effect of all errors, not just evidentiary errors. 

See State v. Neal, Champaign App.Nos. 2000–CA–16, 2000–CA–18, 2002-Ohio-6786, 

¶ 101, citing State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623, 1995–Ohio–168. 

Nonetheless, the doctrine is not applicable to cases where the court has not found 
Licking County, Case No. 11 CA 61 21

multiple instances of harmless error. State v. Skerness, Coshocton App.No. 09-CA-28, 

2011-Ohio-188, ¶ 77, citing Garner. 

{¶71} In support of his argument, appellant essentially redirects us to the issues 

referenced earlier in his brief, particularly as to Lister’s testimony and the issue of the 

expert witness jury instruction. Notwithstanding this Court's past reluctance to embrace 

cumulative error as grounds for reversal (see State v. Mascarella (July 6, 1995), 

Tuscarawas App.No. 93AP100075), having presently reviewed the record, we find 

reversible error has not been demonstrated on this basis. 

{¶72} Appellant's Fifth Assignment of Error is overruled. 

VI. 

{¶73} In his Sixth Assignment of Error, appellant argues the trial court erred and 

violated his right to due process by imposing three years of post-release control 

(“PRC”) on certain of the lesser-degree felonies. We agree. 

{¶74} Pursuant to R.C. 2967.28(C), post-release control for felonies of the third 

degree, fourth degree, and fifth degree (except those subject to R.C. 2967.28(B)(1) or 

(B)(3)) is left to the discretion of the parole board, which must wait to review the 

offender's conduct while in prison and need not impose a full three years of sanctions. 

As appellant notes, R.C. 2967.28(C) further provides that any sentence for such 

felonies “shall include a requirement that the offender be subject to a period of postrelease control of up to three years after the offender's release from imprisonment, if 

the parole board* * * determines that a period of post-release control is necessary for 

that offender.” Furthermore, under R.C. 2967.28(D) in these circumstances, the parole 

board is required to review a prisoner's criminal history and the record of the prisoner's 
Licking County, Case No. 11 CA 61 22

conduct while imprisoned before deciding whether to impose post-release control. 

Therefore, we find appellant's sentence with respect to post-release control is at least 

voidable. See State v. Richards, Licking App.No. 2011-CA-0074, 2012-Ohio–1115, ¶ 

55, citing State v. McKenna, Trumbull App.No. 2009–T–0034, 2009–Ohio–6154, ¶ 84. 

{¶75} Accordingly, we vacate the judgment of the trial court as far as it relates to 

the imposition of post-release control for the (non-R.C. 2967.28(B)(1) or (B)(3)) thirddegree, fourth-degree, and fifth-degree felonies. We will remand this matter to the trial 

court to modify appellant's sentence with respect to PRC for such felonies, such that 

appellant's sentence shall include a requirement that appellant be subject to a period of 

post-release control of up to three years after appellant's release from imprisonment, if 

the parole board, in accordance with R.C. 2967.28(D), determines that a period of 

post-release control is necessary for him. 

{¶76} Appellant's Sixth Assignment of Error is sustained. 

 
Licking County, Case No. 11 CA 61 23

{¶77} For the reasons stated in the foregoing, the decision of the Court of 

Common Pleas, Licking County, Ohio, is hereby affirmed in part, reversed in part, and 

remanded. We vacate the judgment of the trial court only as far as it relates to the 

imposition of post release control for the (non-R.C. 2967.28(B)(1) or (3)) third-degree, 

fourth-degree, and fifth-degree felonies, and remand this case to the trial court to 

modify appellant's sentence accordingly. 

By: Wise, J. 

Farmer, J., concurs. 

Hoffman, P. J., concurs separately. 

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 ___________________________________ 

 ___________________________________ 

 JUDGES 

JWW/d 0713 

 
Licking County, Case No. 11 CA 61 24

Hoffman, P.J., concurring 

{¶78} I concur in the majority’s analysis and disposition of Appellant’s 

Assignments of Error I, IV, V, and VI. 

{¶79} I further concur in the majority’s disposition of Appellant’s Assignments of 

Error II and III. While I agree Appellant’s encouragement to Holling to assert her right to 

remain silent does not implicate Appellant’s right to remain silent, I find the prosecutor’s 

reference to what “an innocent man” would have said and done not only implicates it, 

but also is an indirect comment on Appellant’s fifth amendment privilege. While I find 

such comment improper, I would find it harmless beyond a reasonable doubt when 

considered in light of the overwhelming evidence of guilt. The comment clearly did not 

rise to the level of plain error nor was there a reasonable probability the outcome of the 

trial would have been different had it not been made. 

 

 __________________________ 

 HON. WILLIAM B. HOFFMAN 
Licking County, Case No. 11 CA 61 25

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

GEORGE GAONA : 

 : 

 Defendant-Appellant : Case No. 11 CA 61 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed in part, 

reversed in part and remanded for further proceedings consistent with this opinion. 

 Costs to be split equally between the parties. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES