[Cite as State v. Lawless , 2018-Ohio-444.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO Appellee

v. RICHARD LAWLESS Appellant C.A. No. 16AP0025

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2015 CRC-I 000206

DECISION AND JOURNAL ENTRY Dated: February 5, 2018

CALLAHAN, Judge. {¶1} Richard Lawless appeals from his convi ctions in the Wayne County Common

Pleas Court. This Court affirms.

I. {¶2} The two victims in this case, S.D. and R.K., are recovering heroin addicts. At the time of the events giving rise to Mr. Lawless’s convictions, S.D. and R.K. were both active users

of heroin and Mr. Lawless wa s their supplier. Around that same time, Gary Hubbard, Jr., Director of the Medina County Drug Task Fo rce, was the head of an organized crime investigation that was investigating Mr. Lawl ess’s drug dealing activitie s in Ashland, Medina, and Wayne Counties. Pursuant to that investiga tion, search warrants were executed at multiple properties. Mr. Lawless suspected that S.D. and R.K. had “snitched” on him. {¶3} Mr. Lawless’s co-defendant, Michael K ouns, and S.D. lived at one of the properties that was searched. A couple of days after the searches, Mr. Kouns asked S.D. to go2

with him to a vacant unit in the building to talk “about everything that was going on.” Mr. Lawless was waiting in that unit and threatened S.D with a gun. Mr. Kouns then used S.D.’s phone to text R.K., asking him to come over. When R.K. arrived, Mr. Lawless punched him and

had Mr. Kouns bind him with duct tape. Mr. Lawless threatened R.K. with the gun and struck him multiple times with a bat. {¶4} After Mr. Lawless ended his interrogation of S.D. and R.K., he threatened that he would kill them if they reported the incident to police. Initially, neither S.D. nor R.K. went to the police. But, about ten days after the in cident, they did report it to law enforcement. {¶5} Mr. Lawless was indicted for two counts of kidnapping, one count of felonious assault, and two counts of abduction. Mr. Lawless pleaded not guilty and the matter proceeded to a jury trial. The jury found him guilty on al l counts. The trial c ourt merged the abduction counts into the kidnapping counts and sentenced Mr. Lawless to total of seventeen years in prison. {¶6} Mr. Lawless appeals, raising three assignments of error.

II. ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN UNDULY RESTRICTING THE APPELLANT’S CROSS-EXAMINATION OF A KEY PROSECUTION WITNESS, THEREBY DENYING HIS RIGHT OF CONFRONTATION. {¶7} In his first assignment of error, Mr. Lawless argues that the trial court improperly

limited his cross-examination of Mr. Kouns concerning a pending case in Ashland County. 1 This Court disagrees.

1 In his appellate brief, Mr. La wless states that the questioning concerned an indictment in Medina County. The trial transcript, however , shows that this questioning concerned an indictment in Ashland County.3

{¶8} While a criminal defendant has the right to cross-examine witnesses, the trial court has discretion regarding th e scope of cross-examination. State v. Price , 9th Dist. Summit No. 28291, 2017-Ohio-4167, ¶ 5. Thus, “[t]his Court re views a trial court’s decision to limit the scope of cross-examination fo r an abuse of discretion.” Id . A trial court abuses its discretion

when it acts in a manner that is unreasona ble, arbitrary, or unconscionable. Blakemore v.

Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶9} “[O]rdinarily the credibility of a witness may be attacked by proof of conviction of [a] crime, but not by proof of indictment.” State v. Hector , 19 Ohio St.2d 167, 178 (1969). There is an exception, however, if the fact of the indictment “would reasonably tend to show that [the witness’s] testimony might be influenced by interest, bias, or a motive to testify falsely.” Id

. The exception applies when “criminal charges are then pending in the same court against [the] witness” because the witness “may be influenced by the expectation or hope that, by aiding in the conviction of the defendant, he might be gran ted immunity or rewarded by leniency in the disposition of his own case.” (Emphasis added.) Id . at 178-179. {¶10} In the present case, Mr. Kouns was initially charged with the same five counts as Mr. Lawless. Mr. Kouns pleaded guilty to felo nious assault and the four other charges were dismissed. He received a two-year sentence, which he was serving at the time of the trial. On cross-examination, he admitted that he thought he might get a thirty-year sentence if he was convicted of all five charges. {¶11} Mr. Kouns was also indicted and pleaded guilty in an Ashland County case, but he had not been sentenced in that case at the time of the trial in the present case. During his direct-examination, the prosecutor showed Mr. K ouns an exhibit which he identified as his indictment in Ashland County. The prosecutor th en inquired, “so, you’ve been indicted out of4

Ashland County for a case involving activity in which you participated in with Richard Lawless?” Mr. Kouns responded, “I’d rather not say, because of the pending case.” Later, the prosecutor inquired if Mr. Kouns had been offere d a plea deal or any a ssistance in his Ashland County case in consideration of his testimony in the Wayne County case. Mr. Kouns answered

that he had not. {¶12} On cross-examination, defense counsel as ked Mr. Kouns if he had pleaded guilty in Ashland County. Mr. Kouns responded, “[a]t this point in time, yes.” Defense counsel attempted to inquire further in to the details of the Ashland County case. The trial court disallowed it noting, “he hasn’t been convicted ye t [and] he could withdraw his plea.” Defense counsel proffered, “the purpose of these questions is to produce testimony from this witness that he was indicted on twenty[-]one counts of variou s drug offenses in Ashland County and he has plead[ed] guilty to five of those counts and no ma tter which way you slice it, that’s some kind of a deal, he got five from twenty[-]one.” The prosecutor did not object to having the exhibit, which had a copy of Mr. Kouns’s plea attached, submitted to the jury. {¶13} In his brief on appeal, Mr. Lawless speculate s that the fact that Mr. Kouns had not yet been sentenced in Ashland County was “not a mere coincidence.” He continues, “[t]he sentence was ‘incentive’ for [Mr.] Kouns to testify for the [S]tate.” It is possible that Mr. Kouns agreed to testify for the State against Mr. Lawl ess in an Ashland County case. In the present case, however, he testified on direct that he had not been offered a plea deal or assistance with his Ashland County case in consideration of his testimony in Wayne County. This Court cannot say that the trial court abused its discretion in disallowing any further questioning about the Ashland County case. {¶14} Mr. Lawless’s first assignment of error is overruled.5

ASSIGNMENT OF ERROR NO. 2

THE FAILURE OF DEFENSE COUNSEL TO OBJECT TO FAIRLY PREJUDICIAL EVIDENCE AND REQUEST APPROPRIATE JURY INSTRUCTIONS DENIED THE APPELLANT HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. {¶15} In his second assignment of error, Mr. La wless contends that his trial counsel was ineffective because he failed to object to several items and failed to request a limiting instruction concerning certain testimony. This Court disagrees. {¶16} To succeed on an ineffective assistance of counsel claim, the defendant must show both that counsel’s perform ance was deficient and that the deficiency prejudiced him. Strickland v. Washington , 466 U.S. 668, 687 (1984). A deficiency exists only if counsel’s performance fell below an objective standa rd of reasonable representation. See State v. Bradley , 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. To demonstrate prejudice, “the defendant must prove that there exists a reas onable probability that, were it not for counsel’s errors, the result of the trial would have been different.” Id. at paragraph three of syllabus. An appellate court need not an alyze both prongs of the Strickland test if it finds that the defendant failed to prove either prong. State v. Ray , 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10. {¶17} Concerning the deficiency prong, the de fendant bears the burden to overcome the strong presumption that counsel ’s performance was adequate or that counsel’s actions were sound trial strategy. State v. Edwards , 9th Dist. Summit No. 24546, 2009-Ohio-3558, ¶ 6. “[A]s a matter of law, the failure to object to an error at trial may be justified as a trial tactic and thus

does not sustain a claim of ineffe ctive assistance of counsel.” State v. Miller , 9th Dist. Summit No. 23240, 2007-Ohio-370, ¶ 10. Counsel might make this tactical decision, for instance, if “objecting would only serve to highlight negative testimony or run counter to defense counsel’s theory of the case.” State v. Bradford , 9th Dist. Summit No. 22441, 2005-Ohio-5804, ¶ 27.6

{¶18} On appeal, Mr. Lawless contends that his trial counsel should have objected to the prosecutor’s reference in her opening statement to an “ongoing epidemic in our community” involving heroin. “During opening statement, counsel is accorded latitude and allowed fair comment on the facts to be presented at trial.” State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio6235, ¶ 157. Reviewing the State’s entire opening st atement, the comment appears to have been directed at explaining the context and the players in the case. For instance, the prosecutor explained how S.D., R.K., and Mr. Kouns each became addicted to heroin. {¶19} Defense counsel similarly portrayed these witnesses as heroin addicts in his opening statement. After noting that they were addi cts, defense counsel went so far as to refer to them as “junkies.” Objecting to the prosecutor’s remark, therefore, woul d have “run counter to defense counsel’s theory of the case.” See Bradford at ¶ 27. In addition, both at the beginning and at the conclusion of the trial, the court instructed the jury th at counsel’s stat ements were not evidence. This Court “presume[s] that the jury followed the court’s instructions.” See Leonard at ¶ 157. {¶20} Mr. Lawless next contends that his tr ial counsel should ha ve objected to two comments made by S.D. during her testimony. After S.D. testified that she was afraid that Mr. Lawless was going to shoot her, she was asked whether she believed that he was capable of doing so. She responded that she believed he was “[ b]ecause that’s the type of person he is.” At another point, S.D. stated that Mr. Lawless as ked her what they should do with his girlfriend, who she characterized as “another victim like I was.” On appeal, Mr. Lawless argues that these statements were “prejudicial ly irrelevant” under Evid.R. 403. Each of these comments was isolated, and S.D. was not asked to expound on either of them. Therefore, trial counsel may have7

made the strategic decision not to object because doing so would “only serve to highlight negative testimony.” See Bradford at ¶ 27. {¶21} Mr. Lawless further contends that his tr ial counsel should have objected when Mr.

Kouns was asked whether he had been indicted in Ashland County “for a case involving activity in which [he] participated with Richard Lawless[.]” Here again, trial counsel may have made the strategic decision not to object because objecting would draw attention to the fact that Mr. Lawless was alleged to be invol ved in criminal activity in Ashl and County. In addition, Mr. Lawless acknowledges that trial counsel’s strategy may have be en to discredit Mr. Kouns by bringing out a possible incentive for Mr. Kouns to te stify favorably for the State. But, he argues, if this was so, trial counsel s hould have requested a limiting instruc tion. As with the decision not to object, the decision not to request a limiting instruction is a matter of trial strategy. Bradford at ¶ 28 (decision not to request limiting instructi on does not amount to ineffective assistance of counsel). {¶22} Finally, Mr. Lawless contends that hi s trial counsel should have objected to testimony from Medina County Drug Task Force Agent J. Tadd Davis. Agent Davis testified, “[b]ased on [his] experience with dealing with victims, it is not unusual for victims to delay reporting” a crime. According to Mr. Lawle ss, Agent Davis “in effect, provided expert testimony.” Earlier, Agent Davis had testified that he had over twenty-six years of experience as a law enforcement officer, and defense counsel s tipulated to his qualific ations. Trial counsel may have strategically agreed to the stipula tion in order not to have Agent Davis expound upon his qualifications.8

{¶23} This Court will not second-guess counsel ’s strategic trial decisions merely because that strategy ultimately was unsuccessful. See, e.g., Miller , 2007-Ohio-370, at ¶ 10;

Edwards , 2009-Ohio-3558, at ¶ 9. Mr. Lawless’s sec ond assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. {¶24} In his third assignment of error, Mr. La wless argues that his convictions were against the manifest weight of the evidence because the State’s primary witnesses were “not sufficiently credible,” their testimony was inconsistent, and there was a lack of physical evidence. This Court disagrees. {¶25} A manifest weight challenge addresses whether the greater amount of credible evidence supports one side over the other. State v. Thompkins , 78 Ohio St.3d 380, 387 (1997). When reviewing a manifest weight challenge, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida , 457 U.S. 31, 42 (1982). {¶26} An appellate court “must always be mindf ul of the presumption in favor of the

finder of fact.” Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21. The weight of the evidence and the credibility of the witnesses re main primarily issues for the trier of fact.

State v. DeHass , 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The trier of fact9

observed the witnesses’ demeanor , gestures, and voice inflections and was able to use those observations in weighing the credibility of their testimony. Truax v. Regal , 9th Dist. Summit No. 20902, 2002-Ohio-4867, ¶ 26. “The discretionary power to grant a new trial should be exercised only in exceptional cases where the evidence weighs heavily against the conviction.” Otten at 340. {¶27} Mr. Lawless argues that S.D., R.K., and Mr. Kouns were not credible because they were “admittedly addicted to heroin,” R. K. and Mr. Kouns were alleged to have been dealing heroin, and “[a]ll three were facing charges.” {¶28} Initially, this Court notes that there is no evidence in the record that S.D. was “facing charges.” She was asked if she had been indicted for any case in Wayne, Ashland, or Medina County. She responded, “No.” She was, however, unsure if she had received a deal for her cooperation. Director Hubbard testified that a plea deal wa s not made with S.D. S.D. testified that she had been addicted to heroin prev iously, but that she had not used any in the past

nine months. {¶29} R.K. testified that he had been addicted to heroin, but had not used any for about

seven months. R.K. testified that he also sold heroin. R.K. fu rther testified that he had been indicted for drug offenses in Ashland County. On cross-examination, he admitted that he received a plea deal in Ashland C ounty, but stated that one case ha d “no bearing” on the other. Director Hubbard indicated that while R.K. may have received a deal, he was not involved with

it. {¶30} Mr. Kouns testified that he was a heroin a ddict at the time of the incident. When

he was asked if he was al so selling drugs, he stated that he was not going to answer because he had been indicted in Ashland County. Although Mr. Lawless argues that Mr. Kouns’s “degree of10

freedom” could have been “greatly altered if he testified unfavorably for the [S]tate,” the record reflects that Mr. Kouns had already been sentenced for his involvement in this case prior to Mr.

Lawless’s trial. In add ition, he testified that he had not been offered a plea deal in his Ashland County case in consideration of his testimony in this Wayne County case. {¶31} Mr. Lawless further questions the interacti ons and relationships of the witnesses. For instance, S.D. wrote letters to Mr. Kouns while he was in jail. R.K. indicated that, prior to this incident, he did not have much of a “bee f” with Mr. Kouns, but he admitted that there was some animosity between h im and Mr. Lawless. {¶32} Mr. Lawless also points out some inconsistencies in the witnesses’ testimony. While S.D., R.K., and Mr. Kouns each indicated that Mr. Lawless had hit R.K. multiple times with a bat, there were discrepancies as to whether he “swung” or “jabbed” the bat. S.D. initially reported that the incident happe ned on June 1, 2015, but later stated that it occurred on May 29, 2015. She explained, “I may have not exactly known the date when the incident happened because of my emotions and being upset.” She testified, however, that she was able to determine the date by looking at some pictures on her phone of Mr. Lawless with his dog. The display on the phone indicated that the pictures were “[c] reated [on] May 29, 2015” and “[m]odified [on] Jun[e] 5, 2015.” According to S.D., she took the pictures on the day of the incident at the building where it occurred, but they may have been modified by a Google app. {¶33} Mr. Lawless notes that R.K. testified that there were no pictures taken when he was at the building. In addition, R.K. testified on direct that Mr. Lawless instructed him to take his dog to a friend’s house and he drove straight there. On cro ss-examination, he conceded that he previously told law enforcement that he got the dog from a farm and then took it to the

friend’s house.11

{¶34} Mr. Lawless further contends that “corroborating physical evidence was not

obtained” to substantiate the w itnesses’ testimony. Lack of co rroborating evidence, by itself, does not undermine a witness’s credibility. State v. Schell , 9th Dist. Summit No. 28255, 2017- Ohio-2641, ¶ 32. Moreover, while some physical evidence was not recovered, other physical evidence was found. For instance, the weapons were not found, but ammunition for the caliber of the gun that the State’s witnesses alleged Mr. Lawless had at the time of the incident was found in a search of the building. {¶35} Similarly, with respect to the duct tape , while no residue was found on R.K.’s jeans, a roll of duct tape was found in the search of the building. Agent Davis explained that R.K. had washed his jeans, therefore, they were not submitted for further testing. Director

Hubbard testified that a roll of duct tape was found on top of a refri gerator during a search of the building. {¶36} The defense offered an alternative explanation for the presence of the duct tape in the building. A former girlfriend of Mr. Lawless testified that she was in the process of moving into an apartment at the property when the search occurred. She further testified that the duct tape that was found in the search was hers. However, when she was shown a picture of the kitchen where the duct tape was found, she stated, “tha t’s not the side I was moving into.” Later, when shown a picture of the same kitchen from an angle including the refrigerator with the roll of duct tape on top, she stated that it was “[t]he same side [s he] was moving into.” {¶37} Mr. Lawless asserts that, de spite the testimony that Mr . Kouns offered to set off fireworks to muffle any gunshots, “no fireworks were found.” This asse rtion is belied by the record. Director Hubbard testified that they f ound a plastic tote containing fireworks during the12

search of the building. He further testified th at mail or pay stubs belonging to Mr. Kouns was

located in the container with the fireworks. {¶38} Finally, Mr. Lawless challenges whether R. K. was injured. R.K. testified that he was bruised on his sternum and back and his cheek was swollen. Similarly, S.D. testified that R.K. had a “huge welt” on his face. Pictures of R.K.’s faded injuries were also shown to the jury. By contrast, Mr. Lawle ss’s ex-wife testified that she saw R.K. and S.D. on May 31, 2015, and had a conversation with them. She did not observe any bruises, red marks, or swelling on R.K.’s face and he did not appear to be in any discomfort. {¶39} “In reaching its verdict, the jury was in the best position to evaluate the credibility

of the witnesses and was entitled to believe all, part, or none of the testimony of each witness.”

State v. Shank , 9th Dist. Medina No. 12CA0104-M, 2013- Ohio-5368, ¶ 29. This Court cannot say that this is the exceptional case where the jury clearly lost its way in convicting Mr. Lawless.

See Otten , 33 Ohio App.3d at 340. {¶40} Mr. Lawless’s third assignm ent of error is overruled.

III. {¶41} Mr. Lawless’s assignments of error are overruled. The judgment of the Wayne County Common Pleas Court is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27.13

Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

LYNNE S. CALLAHAN FOR THE COURT

SCHAFER, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: DAVID L. DOUGHTEN, Attorney at Law, for Appellant. DAVID R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.