[Cite as State v. Lavender, 2019-Ohio-5352.]

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: December 27, 2019 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

 

Wendy R. Calaway, for Defendant-Appellant. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

ANDREW LAVENDER, 

 Defendant-Appellant. 

: 

: 

: 

: 

: 

APPEAL NO. C-180003 

TRIAL NO. B-1700948 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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MOCK, Presiding Judge. 

{¶1} In eight assignments of error, defendant-appellant Andrew Lavender 

claims that he was improperly convicted of aggravated murder and sentenced to life 

in prison without the possibility of parole. For the reasons set forth below, we 

disagree with those assertions and affirm the judgment of the trial court. 

The Killing of Ceran Lipscomb 

{¶2} During the evening of August 1, 2014, Ceran Lipscomb was shot and 

killed by an individual using a .22-caliber weapon. A man named Ramon Davis was 

using a portable restroom in the area when the shots were fired. He fled from the 

restroom and called 911. He told the operator that he had seen someone running 

from the body. He described the man as between 40 and 50 years old, five feet eight 

inches tall, and slender. He said that the man had on purple jogging pants, a black 

top, and a cap, and had a mustache or goatee. Another individual, 15-year-old 

Dennis Coulter was outside his apartment with his cousin when the incident 

occurred. He told police that he saw the shooter run away from the body and down 

an alley behind the apartment buildings. He said he saw the man two different 

times: once as he was running from the body, and again as he was running in the 

alley behind the apartments. Coulter told police that he had seen the man before in 

the neighborhood but did not know him or know his name. 

{¶3} A few days after the shooting, Coulter worked with a sketch artist to 

generate an image of the shooter’s face. Police had little more to go on until 

Domingo Johnson was arrested on a number of drug-related charges. He contacted 

the investigating detectives and informed them that he had information on the 

Lipscomb killing. He told police that shortly before the killing, he was in an 

apartment when he overheard a young man he knew as “Shooter” bragging about 

how he was taking a hit on “Little Charlie’s Brother.” The name “Little Charlie” was a 
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name associated with Lipscomb’s brother. He also said that Shooter had a small 

caliber revolver. Using social media, detectives were able to connect the name 

“Shooter” with defendant-appellant Andrew Lavender. Johnson identified Lavender 

as the person he overheard talking about the hit. The police requested a photo array 

from the Hamilton County Juvenile Court, since Lavender was 16 years old at the 

time, and presented the photo array to Coulter. Coulter was shown the images one at 

a time. As Coulter was going through each image, he initially said that another man 

pictured looked like the shooter. As he continued though the rest, however, he then 

reached Lavender’s picture and positively identified him. 

{¶4} Lavender was arrested and police gained access to his cellular phone 

data. Of significance, police retrieved thousands of text messages from his phone 

going back months before the shooting. The vast majority of these text messages 

were introduced at trial by the state, for the purpose of attempting to show 

Lavender’s growing desperation with regard to money, which lead Lavender to agree 

to kill Lipscomb for hire. After conducting a hearing on the matter, the trial court 

admitted the vast majority of these text messages for the limited purpose of allowing 

the state to show Lavender’s motivation for the killings in his growing desperation 

with regard to money during the months before Lipscomb’s death. 

{¶5} Because Lavender was 16 when he committed the offense, his case 

was first brought in Hamilton County Juvenile Court, in the case numbered 14-7191. 

The state filed a motion to have Lavender bound over to the adult common pleas 

docket. After determining probable cause, the juvenile court judge failed to conduct 

an amenability hearing, believing that the bindover to the adult court was 

mandatory. Lavender was then indicted in the case numbered B-1405471, and 

charged with one count of aggravated murder, in violation of R.C. 2903.01(B), and 

one count of aggravated murder, in violation of R.C. 2903.02(B). Both counts 
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included firearm specifications. The case proceeded for some time, including the 

briefing, arguing, and a decision on a motion to suppress the results of the photo 

array. The case remained pending for three years before the problem with the 

bindover was discovered. The state then dismissed the case and refiled in the 

juvenile court. The juvenile court conducted new hearings, this time conducting an 

amenability hearing. At the conclusion of those hearings, the case was again 

transferred to the general division of the common pleas court. Lavender was again 

indicted for two counts of aggravated murder. The case proceeded to a two-week 

jury trial, after which Lavender was found guilty on both counts and all 

specifications. On the first count, Lavender was sentenced to life in prison without 

the possibility of parole, with an additional three years for the gun specification. The 

second count was merged with the first. In eight assignments of error, Lavender now 

appeals. 

Admission of Evidence 

{¶6} In his first assignment of error, Lavender claims that the trial court 

erred when it admitted certain evidence. In particular, he claims that the admission 

of a photograph from Facebook showing him posing with weapons was improper. 

He also claims that the admission of his text messages was improper. And he finally 

claims that it was improper for the court to allow an officer to testify about how 

contract killings are conducted. 

The Photograph

{¶7} In the photograph Lavender challenges, he is seen pointing one gun at 

the camera while holding another gun at his side. Neither side has argued that the 

gun Lavender is pointing at the camera is related to the case. But the state argues 

that the gun in his other hand appears to be a small-caliber revolver. Lipscomb was 

killed by a .22-caliber weapon, and the state theorized that the weapon was a 
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revolver because no casings were found at the crime scene A revolver would retain 

its bullet casings in its cylinder, while a semi-automatic pistol would eject the casing 

after firing each round. The state’s expert could not confirm that the shots were fired 

from a revolver but did say that the physical evidence would be consistent with that. 

He said that it was “very common to find .22 caliber ammunition chambered in 

revolvers.” When shown the photograph, he said that “based on what I can see it 

certainly appears to be most consistent in physical shape with a revolver simply 

because of the width versus the length, and it looks like basically a small-sized 

handgun.” He further said that “it looks like a very small revolver and you will find a 

lot of .22 caliber handguns in a small sized frame handgun.” 

{¶8} Prior to the testimony from the expert about the weapon, the trial 

court conducted a hearing. Initially, there were three photographs proposed for 

admission by the state. The other photographs included different weapons. Citing 

State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, Lavender 

argued that the photographs that showed Lavender with another weapon and 

another person holding a revolver with Lavender present were unduly prejudicial. 

After hearing the argument, the trial court allowed only the photograph of Lavender 

with the revolver in his hand concluding, “assuming a proper foundation is laid and 

relying on the prosecutor to establish the fact that Mr. Lattyak would testify that it 

was a revolver and that it was a .22, and if he’s shown the photograph of 16(A), which 

includes the revolver in the hand of what purports to be the defendant, that that [sic] 

would be admissible.” During the testimony, clarifying rulings were made. First, the 

trial court allowed the state to continue questioning about the photograph “if the 

foundation was laid or if it was at least established that the revolver could have been 

the type consistent with .22 bullet that was recovered [sic].” The trial court also 

ruled that when the witness seemed hesitant to identify the type of handgun in the 
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photograph, the state could lay “additional foundation * * * such that if the expert 

would say that the revolver would be consistent with the type of gun used for the 

bullet recovered.” 

{¶9} The admission of evidence is within the sound discretion of the trial 

court. See State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 

61. We will not disturb a trial court’s ruling on evidentiary issues on appeal absent 

an abuse of discretion and proof of material prejudice. State v. McKelton, 148 Ohio 

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 181; State v. Belton, 149 Ohio St.3d 165, 

2016-Ohio-1581, 74 N.E.3d 319, ¶ 116. 

{¶10} The term “abuse of discretion” connotes more than an error of law or 

judgment; it implies that the court’s attitude is unreasonable, arbitrary or 

unconscionable. Body Power, Inc. v. Mansour, 1st Dist. Hamilton No. C-130479, 

2014-Ohio-1264, ¶ 28, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 291, 450 

N.E.2d 1140 (1983). Most cases will fall within the “unreasonable” prong of 

discretionary decisions, as few judges issue decisions that are unconscionable or 

arbitrary. AAAA Ent., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio 

St.3d 157, 161, 553 N.E.2d 597 (1990). A decision is unreasonable if 

there is no sound reasoning process that would support that decision. 

It is not enough that the reviewing court, were it deciding the issue de 

novo, would not have found that reasoning process to be persuasive, 

perhaps in view of countervailing reasoning processes that would 

support a contrary result. 

Id. “An abuse of discretion implies that a decision is both without a reasonable basis 

and is clearly wrong.” Aetna Better Health, Inc. v. Colbert, 10th Dist. Franklin No. 

12AP-720, 2012-Ohio-6206, ¶ 21, citing Hartzog v. Ohio State Univ., 27 Ohio App.3d 

214, 500 N.E.2d 362 (10th Dist.1985). 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶11} The state’s theory, based on the lack of casing at the scene, was that 

the .22-caliber bullet that killed Lipscomb came from a revolver. Further, Coulter 

testified that he had seen the shooter wrap the small handgun in his shirt as he ran 

away, indicating that a rifle was not involved. The expert witness testified that the 

photograph was consistent with a .22-caliber handgun, and Johnson testified that he 

had seen Lavender with a small revolver prior to the shooting. 

{¶12} “Logically, all evidence presented by a prosecutor is prejudicial, but 

not all evidence unfairly prejudices a defendant.” State v. Wright, 48 Ohio St.3d 5, 

8, 548 N.E.2d 923 (1990). Courts have said that the admission of a photograph of a 

defendant with a weapon is appropriate when it is similar to one seen used in a 

crime. See, e.g., State v. Lee, 1st Dist. Hamilton No. C-160294, 2017-Ohio-7377, ¶ 12. 

Similarly, the trial court here allowed the admission of the photograph of a handgun 

that was similar to the type of weapon that law enforcement believed was used in the 

case and had been tied to Lavender through Johnson. Lavender was able to then 

attack whether that asserted connection was credible, which he did through counsel’s 

effective cross-examination and closing argument. 

{¶13} In this case, we cannot conclude that the decision of the trial court 

was “without a reasonable basis” or “clearly wrong.” We conclude that the trial court 

had a reasonable basis to determine that the photograph was relevant, admissible, 

and that the probative value of the photograph was not substantially outweighed by 

undue prejudice. 

Text Messages

{¶14} Lavender makes several intertwined arguments related to the text 

messages that were admitted at trial. He claims that the admission of the entire 

record of the text conversations covering the period of several months prior to the 

killing was improper as “hundreds of the texts were completely irrelevant.” He then 
OHIO FIRST DISTRICT COURT OF APPEALS

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argues that some of the text messages violated Evid.R. 403, and others vi0lated 

Evid.R. 404. In order to analyze this portion of his argument, however, we must give 

a detailed account of how the text messages were handled during the course of the 

trial. 

{¶15} Detective Gregory Gehring was the state’s witness through whom the 

text messages were admitted. He was the officer who worked with employees of 

Cincinnati Bell to obtain the records, though the records custodian from Cincinnati 

Bell testified for authentication purposes. It is clear that both sides understood that 

the admission and use of these text messages was going to be a significant issue in 

the case from an evidentiary perspective. So much so that the trial court held a 

hearing before Gehring testified to try and determine as many of the legal issues as 

possible prior to the time the exhibits would be admitted. 

{¶16} The text messages were admitted in various forms. First, there was 

an overall set of two large binders which contained every text message from or to 

Lavender from April 26 to August 21, 2014 (hereinafter “the comprehensive set”). In 

addition to the comprehensive set, the state also had a smaller binder of messages 

that law enforcement was able to retrieve from the cell phone’s memory (hereinafter 

“the memory set”). All of these messages were also contained in the comprehensive 

set. And in addition to that, the state had a series of specific exhibits (hereinafter 

“the 15 series”) that it had pulled from the comprehensive set for purposes of specific 

presentation to the jury during the trial. 

{¶17} As the hearing began, the trial court pressed the state on the need to 

admit the comprehensive set to the jury if it was planning on focusing on a small 

fraction of the total. The state responded that “we were going to do that because it’s 

the records, and then from that book we were going to tell the jury we have those 

records, which are pages out of that book on different dates indicating different 
OHIO FIRST DISTRICT COURT OF APPEALS

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conversations.” The state later said that “the problem, too, with these records, 

Judge, is he’s making conversations with different people that have different 

information about him. When he’s talking - - and so if you don’t take this stuff as a 

whole, it’s easier to put out of context what the defendant is saying and the import of 

it.” The state also was concerned that if it only offered the individual messages 

without the context, Lavender could argue that things had been left out and argue 

what the absent messages might have held. 

{¶18} Lavender began the hearing arguing generally that the comprehensive 

set was objectionable because many of the messages were from several months 

before the murder, and that they lacked relevance for that reason. He then argued 

that, for some of the messages, the probative value was substantially outweighed by 

the prejudicial effect they would have on the jury. Further, Lavender highlighted the 

danger that, as these text messages related to illegal activity and other things that 

cast him in a negative light, there was a danger that he would be convicted not on the 

evidence, but because the jury simply reached the conclusion that he was a bad 

person who did bad things. 

{¶19} The state assured the trial court that the evidence, largely, was not 

being offered as direct evidence of Lavender’s guilt. But rather the evidence was 

being offered to demonstrate Lavender’s motive to take a murder-for-hire contract—

the fact that he was increasingly desperate for money. The state argued: 

 We’re showing it so that the jury has in their minds what’s 

going on in the defendant’s life, what he’s talking about that’s going on 

in his life that’s a motivation for him to do what he’s got to do. 

 And you can kind of see with all of them together how he 

moves from, you know, he needs money so bad he’s going to rob 

people. He needs money so bad he’s going to rob people. [sic] That’s 
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not panning out for him. He goes to his dad. His dad’s not going to 

give him money. 

 He finally gets to the point where he’s going to take 

somebody’s life. And that goes to prior calculation and design. He 

starts thinking about it. 

 You can see in these texts where he’s talking about that and 

he’s talking about the people that are trying to talk him out of it. He’s 

not worried about it. He’s got grown men afraid of him. He’s done it 

before, he’ll do it again. 

 So all of this is important, extremely important, for the State in 

being able to properly put into perspective the defendant’s intent and 

motive and some of the other things that are set forth in 404(B). 

 It certainly lays the groundwork for the jury to understand the 

situation the defendant found himself in and what his motivation was 

for doing this. 

{¶20} In response, Lavender began by arguing that much of what was being 

presented violated Evid.R. 403. 

 There is no question that much of this what they talked about 

is far more prejudicial than it is probative. A lot of it dates back four or 

five months prior to. A lot of it is talking about things that is [sic] 

inconsistent with their theory. And it’s far more prejudicial than it is 

probative. It’s talking about different acts, shooting into cars, and so 

forth. Again, that’s extremely prejudicial; far more prejudicial than it 

is to show that he had a gun and he uses a gun. 

 That’s their reason for some of this coming in. So, Judge, 

again, the rule is what it is; although relevant, when it’s substantially 
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outweighed - - and that’s what we’re dealing with here; a cumulative 

exhibit that is far more prejudicial than it is probative. 

{¶21} The problem with excising portions of the comprehensive exhibit 

became clear as the hearing continued. After discussing a series of messages in 

which Lavender claimed that people were trying to kill him (some before the 

shooting, some after), the parties and the court turned to a text message in which 

Lavender had claimed to have shot into a car with people in it. The trial court 

expressed concern with that message, as it did not fit neatly into the state’s theory of 

showing Lavender’s increasing desperation for money. The state responded that it 

would not strongly object if the court did not admit that text. At that point, counsel 

for Lavender interjected: 

 Well, Judge, what I’m concerned about is - - and this is why I 

think the whole exhibit is a problem. If we pull out the shooting in the 

car, which I brought to the Court’s attention, that may be the thing 

that he did why [sic] people want to kill him. 

 And that’s why the text messaging and it’s trying to speculate 

on what they’re talking about is a problem, because that’s exactly what 

you begin to do. And, again, I believe from looking at it and reading it 

that that could very well be it. 

This conversation was resumed when that particular text message came up during 

the court’s review of the individual text messages in the 15 series. When it came up 

during the review, the state suggested it was going to withdraw it based on the 

previous discussion. At that point, counsel for Lavender interjected, saying 

Well, Judge, at this point, if the Court - - because at this point I don’t 

think the Court has decided to exclude anything, if the Court is going 

to allow all of the rest of it in we just ask that this be included too 
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because, again, it’s our belief that this may be what he’s talking about 

people may want to kill him for [sic]. 

{¶22} Although never directly stated, it appears that the trial court 

determined that the safer approach was to allow the comprehensive exhibit in and 

allow the jury to use it to determine the context of the messages from the 15 series, if 

needed. As the court said, “That’s to be argued in front of the jury where they decide 

the quality of it.” The court advised counsel to review the comprehensive exhibit that 

evening so that any problematic messages could be addressed and, if need be, 

redacted. 

{¶23} Having decided the general issue of the comprehensive exhibit, the 

trial court then went on to individually consider the messages that would be 

published to the jury during trial in the 15 series. After discussing the texts generally, 

the state gave an overview of the 15 series, which were the texts to which the state 

would be directing the jury’s attention during the trial. The state summarized that 

the texts, beginning in April, show that Lavender needed money. Initially, Lavender 

is complaining about not having money, asking people for money, and asking if 

people know of anyone he can rob. The state then said that “at some point it 

switches. In about June it switches from trying to rob people to becoming a hitman.” 

{¶24} One message at a time, the trial court heard argument from counsel 

on each message from 15a through 15qq. Many of the messages were admitted for 

the limited purpose of showing motive or intent. Some of the messages, closer in 

time to the shooting and purporting to speak directly about the shooting, were 

allowed for all purposes. But there were also several messages that the court decided 

fell outside the Evid.R. 404(B) exception. The one message regarding shooting the 

car would have been excluded, had Lavender not withdrawn his objection to it. 

Another text message that just made a reference to guns without any reference to 
OHIO FIRST DISTRICT COURT OF APPEALS

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money or being in need was excluded. Another message about having adults who 

were afraid of him was excluded. 

{¶25} The first question for this court to consider is the admission of the 

comprehensive set. In his argument to this court, Lavender has argued generally 

that the admission of the comprehensive set was error because hundreds of texts 

were irrelevant, and many were prejudicial. But Lavender has not pointed to any 

text messages in the comprehensive set that were problematic other than messages 

that were also in the 15 series. Considering the comprehensive exhibit as a whole, 

Lavender has failed to argue how its admission prejudiced him—distinct from the 

prejudice he claims to have suffered from the messages in the 15 series. Without a 

showing of prejudice, we will not conclude that claimed error in the admission of 

evidence requires reversal. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, 848 N.E.2d 810, ¶ 74; see also City of Toledo v. Gorney, 6th Dist. Lucas No. L94-152, 1995 WL 136495, *1 (Mar. 31, 1995) (no reversal when part of testimony was 

relevant and part was irrelevant but not prejudicial). 

{¶26} Other than what Lavender argues in the 15 series, and what our 

independent review of the exhibit has confirmed, there was nothing overtly 

prejudicial in the text messages in the exhibit. There were several messages that 

were not relevant, as one would expect by taking the entirety of the text message 

history from a teenager for a period of six months. But the trial court considered this 

issue and discussed the matter with the parties. The state’s concern with not giving 

the jury the comprehensive exhibit was that it would be accused of cherry-picking 

certain texts, taking them out of context, and ignoring other information. Without 

the context of the whole exhibit it would be a difficult assertion to rebut. Even 

Lavender’s counsel became concerned when the trial court began to suggest that 

certain messages be excised, as it would not allow Lavender to argue from that same 
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context. Given this situation, and the manner in which the exhibits were presented, 

we cannot say that the trial court did not have a reasonable basis for allowing the 

exhibit in, nor can we say that the trial court was clearly wrong. Coupling this fact 

with the previous conclusion that the extraneous texts were at worst simply 

irrelevant, we conclude that the trial court did not abuse its discretion when it 

allowed the admission of the comprehensive exhibit. 

{¶27} We now address the specific concerns regarding the messages cited by 

Lavender in his brief. The Ohio Supreme Court has directed courts to conduct a 

three-step test to consider whether other-acts evidence is admissible. State v. 

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 19. “The first 

step is to consider whether the other acts evidence is relevant to making any fact that 

is of consequence to the determination of the action more or less probable than it 

would be without the evidence.” Id. at ¶ 20. The second step is to “consider whether 

evidence of the other crimes, wrongs, or acts is presented to prove the character of 

the accused in order to show activity in conformity therewith or whether [it] is 

presented for a legitimate purpose, such as those stated in Evid.R. 404(B).” Id. “The 

third step is to consider whether the probative value of the other acts evidence is 

substantially outweighed by the danger of unfair prejudice.” Id. 

{¶28} We begin first with the relevance of the 15 series messages. Evid.R. 

401 provides: “ ‘Relevant evidence’ means evidence having any tendency to make the 

existence of any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence.” At issue in this 

case was Lavender’s motive to kill Lipscomb, which the state theorized was an 

increasingly desperate need for money. As the trial court summarized its 

understanding: 
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 I believe their argument is they’re not trying to argue to say 

he’s acting in propensity or character - - has that propensity that’s 

what he’s doing. They said they’re specifically offering it for other 

purpose, including motive or intent, to go along the lines of prior 

calculation or design and it wasn’t an accident. 

 That’s under 404(B) and that’s specifically one of the - - that’s 

expressly stated as an exception. So I believe their argument is to say 

there’s a man that’s willing to - - who’s desperate and looking to make 

money any way he can make money and he’s trying to find a way - - 

except for getting a job. And the way he’s willing to do things is he’s 

willing to either rob, do whatever else, and it’s escalating to the point 

where he’s willing to kill somebody. 

Motive is generally relevant in all criminal cases since it is assumed that human 

behavior is prompted by a desire to achieve specific results. State v. Curry, 43 Ohio 

St.2d 66, 70-71, 330 N.E.2d 720 (1975). In order to show that progression, we 

cannot say that text messages were irrelevant to establishing motive. 

{¶29} The next argument that Lavender makes is that the text messages 

were evidence of his character, and that the state was trying to demonstrate that his 

character was such that he was likely to have killed someone for money. Evid.R. 

404(A) states that “evidence of a person’s character or a trait of character is not 

admissible for the purpose of proving action in conformity therewith on a particular 

occasion.” “A hallmark of the American criminal justice system is the principle that 

proof that the 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.” Id. at 68. 
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{¶30} Proving an individual’s motivation is seldom a direct process. And 

while it is not an element of either of the crimes for which Lavender was charged, it 

was crucial to the state’s case. As the Ohio Supreme Court noted, in a murder case 

where the identity of the killer is shown only by circumstantial evidence, motive 

becomes an important issue. State v. Franklin, 62 Ohio St.3d 118, 128, 580 N.E.2d 1 

(1991), citing State v. Lancaster, 167 Ohio St. 391, 149 N.E.2d 157 (1958). 

{¶31} Often times, this circumstantial evidence of a need for money comes 

from sources that could otherwise paint a defendant unfavorably. For example, the 

Ohio Supreme Court has held that a defendant’s drug addiction is admissible to 

prove the defendant’s need for money, providing a motive to rob and kill. State v. 

Henness, 79 Ohio St.3d 53, 61, 679 N.E.2d 686 (1997). The Second Appellate District 

held that evidence of a civil judgment against the defendant physician was 

admissible in a prosecution for trafficking in drugs to prove the motive of a need for 

money. State v. Nucklos, 171 Ohio App.3d 38, 2007-Ohio-1025, 869 N.E.2d 674, ¶ 

70 (2d Dist.). And this court has held that evidence of a defendant’s gambling habits 

was admissible to show the defendant’s need for money in a case involving theft in 

office, bribery, and attempted bribery. State v. Ridley, 1st Dist. Hamilton No. C100301, 2011-Ohio-2477, ¶ 65. 

{¶32} We have reviewed the 15 series of exhibits and have determined that 

they generally demonstrate the pattern of how desperate Lavender was to make 

money, and how that need grew over time. In early April of 2014, Lavender texted an 

individual asking if he knew of someone he could rob. Later that month, he texted 

his sister asking her if she had any money. In another message, he tells someone 

that he has no other support and that he’s been on his own since he was 11. He 

relayed that he had been providing for his own needs without being able to rely on 

his parents. In a text to his father, Lavender berated him for never supporting him, 
OHIO FIRST DISTRICT COURT OF APPEALS

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saying that he was tired of holding things in, having to sell heroin and marijuana to 

get money to support himself, and that his father “ain gtta worry bou me [sic].” May 

shows that his condition had not improved. On May 9, he asked someone if they 

knew about someone he could rob. On the 14th, he texted three different individuals 

asking for money. 

{¶33} In June, Lavender appeared to have had something lined up. On the 

15th, he texted someone called Ayana, telling her that he was going to do “sum shit 

[sic].” When she asked what he had planned, he replied “This dude [sic].” When 

Ayana presses for details, he says he’s “[Fixing to] get [somebody] together [sic],” but 

then tells her that he probably wasn’t going to do it that night, but was just preparing 

for it. 

{¶34} The following day, Lavender texted her complaining about life on the 

streets. Ayana tried to encourage him, but he said that he wanted to give up and that 

so many people wanted him dead. He said he was afraid that he was not going to 

amount to anything and that, while he was trying “[not] to feed into it,” he was 

starting to believe it. After more attempts to encourage him, Lavender replied that 

his own father had abandoned him and he had taken a life before and had tried to kill 

others. He also related a story about how people he had trusted had “set me up n left 

me fa dead [sic].” When Ayana told him to take a break from all that, he said that “I 

[be] trying it’s hard I [don’t] have a mama to call [when] I’m broke I [gotta] do 

[what] I [gotta] do to put money [in] my pocket [sic].” Ayana tried to tell him that 

maybe he should try doing something different, but Lavender responded that he had 

tried “hella times.” Ayana suggested that maybe Lavender could apply for a job, but 

Lavender shoots that idea down “Bay [for real] I’m ok [sic].” After telling Ayana he 

just doesn’t care about life anymore, he concluded by telling her “I’m ok [at least] I 

[got] my gun :-) [sic].” 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶35} That same day, Lavender was texting with another number trying to 

find someone to rob. The person he was texting had a person in mind, but Lavender 

wanted to make sure that the target had some money because he didn’t “wanna rob 

him [if] he broke [sic].” The next day, he texted Ayana that he had just found out he 

had a child, who was two years old. On the 19th and 20th, there was a series of 

messages between Lavender and another person in which Lavender was trying to get 

money to “flip.” 

{¶36} The text messages took a turn on June 22. Lavender texted Ayana, 

telling her “I finna catch a body.”1 Testimony by Gehring established that this meant 

that he was about to kill someone. Ayana desperately tried to talk Lavender out of it, 

saying that he must not care about his son or nephew, and that he needed to think 

about what he’s about to do. Lavender simply responded that he refused. 

{¶37} The next message in the 15 series was a series of texts from Lavender 

to someone named Kiara My Queen on July 20—less than two weeks before the 

murder. He told her that his life had been hard and that he had been providing for 

himself since he was 12 years old. He recalled an incident when he had been grazed 

by a bullet and said that “when I was 14 I took two [people’s lives]” and that he had 

shot “hella [motherfuckers] * * * [and] robbed hella [people].” He said he regretted 

it all. He told her that he remembered going without food and staying outside for 

days, and that he sometimes didn’t want to live anymore and that there was no one 

to support him. He told the story about how he got kidnapped at age 14 because he 

had robbed “a dope boy,” but that he was let go because his captors feared his older 

brother. Because he had no one he could count on, he said he had to “do what[ever] 

 

1 The trial court allowed the jury to consider this portion of the message for any purpose, but 

limited the rest of the message to consideration for only the purpose of motive. The trial court 

instructed the jury accordingly. 
OHIO FIRST DISTRICT COURT OF APPEALS

 19 

it takes to keep money [in] my pocket[, ] shit to wear[, ] and food [in] my stomach 

[sic].”2

{¶38} Later that day, he told Kiara that he had not eaten since the day 

before. She told him to get something to eat and go home, but he told her he did not 

have a home. Then he told her “in a couple weeks or even sooner [than that] I [am 

going to be playing] with a check [and you’re] go[nna] have everything baby * * *.” 

Gehring testified that “getting a check” meant coming into a sum of money. 

Lavender told her that “we can get a car I’m really [going to] spoil [you] * * *.” 

{¶39} On July 21, Lavender sent a text message in which he told Kiara about 

the time that two girls tricked him into getting into a car by asking for marijuana. 

Lavender said that some people then tried to pull him into the car, so he pulled out 

his gun and fired nine times. He said that, while this had happened a month ago, 

they were now calling him to find out where he was.3 

{¶40} The day before the shooting, Lavender sent a message to Kiara saying 

that he hoped to die and that his life was over. He also told her his phone was about 

to be turned off for not paying the bill. When Kiara told him to pay the bill, Lavender 

responded that he could not. He told her that every time he turned around, someone 

was asking him for money. He said that he had given his mother $230, had given his 

sister $60, and given the mother of his child $100. He later texted to another person 

that everything in his life was going wrong. 

{¶41} On the morning of the murder, Lavender received a message that his 

text messaging had been suspended for nonpayment. The day after the murder, 

Lavender received a message from Kiara saying “that’s why we need a car.” He 

 

2 The trial court allowed the jury to consider this message for any purpose, not limiting it to 

determination of motive. The trial court instructed the jury accordingly. 

3 Lavender’s counsel withdrew his objection to this message in a sidebar discussion because, as 

the trial court summarized the sidebar discussion later, it “became part of the trial strategy.” 
OHIO FIRST DISTRICT COURT OF APPEALS

 20 

responded that he was going to save up for one, and that he only needed $2500 for a 

black Cadillac.4

{¶42} A week after the murder, a person named Tauda texted and offered to 

give Lavender some money on the first of the follwing month. And the texter then 

asked why Lavender was jeopardizing his family and risking spending his life in jail 

over “bs.” She said that his big brother was already gone and she did not want him to 

go too. Lavender responded that he had a son to take care of and that he needed 

some “shit” and he needed “everything” and that he would not settle for less. Tauda 

responded that he will make things worse if he does something that he will regret 

later, and that he risked getting locked up. 

{¶43} On August 14, there was another exchange between Lavender and 

another number. Lavender told the person that his time was running out. He said 

that people wanted him dead and that they were trying to find him through social 

media. He said that karma was a “mfer” and that he had this coming because he 

chose this life and that there was nothing he can do but “fight back and let it 

happen.” After a few more exchanges, Lavender said that he was going to die soon 

and that he didn’t want anyone crying for him. He said he was trying his best to keep 

calm. He concluded by saying that, every night, he “regret it i wish it never 

happened. [sic]”5

{¶44} Another series of messages from that day between Lavender and 

someone named Duke were shown to the jury. In that exchange, Lavender wished 

the man good luck in his boxing career and said that he wasn’t going to be around 

much longer, because people wanted him dead. He said that a friend told him that 

 

4 The trial court allowed the jury to consider this message for any purpose, not limiting it to 

determination of motive. The trial court instructed the jury accordingly. 

5 The state sought, and the trial court allowed, the jury to consider the messages in this paragraph 

for the additional purposes of lack of mistake and “how the crime was committed with respect to 

intent.” The trial court instructed the jury accordingly. 
OHIO FIRST DISTRICT COURT OF APPEALS

 21 

people were looking for him through Facebook, but the friend didn’t know them and 

couldn’t tell who they were because “they blocked him or they deleted [their] 

[Facebook accounts].” Duke offered to stand with Lavender, even if it meant 

violence. Lavender told him that he was no longer willing to hide or run. Lavender 

concluded, “Thats wa Im sayin Im goin out like scarface Word!!! ???? [sic]” 

{¶45} The final series of messages, between Lavender and someone named 

Zyon, were being sent at about the same time as the messages between Lavender and 

Duke. Lavender began by also telling Zyon that people wanted him dead. He then 

told Zyon that someone had told him people were trying to find out where he was 

and trying to find out what “Shooter’s” real name was. Zyon promised that, if anyone 

came after Lavender, they would all “get they head token off [sic].”6

{¶46} Having reviewed these messages, we cannot say that the trial court 

abused its discretion in allowing the admission of the text messages to show that 

Lavender was becoming increasingly desperate for money. While alternate 

arguments can be made as to why a teen would text in the manner that Lavender did, 

the state’s theory of what the text messages represent is not wholly unsupported by 

the exhibits. The trial court considered this issue at length. It first considered the 

issue generally in a pretrial motion in limine relating to the texts. It then conducted 

a hearing on the issue the day before Detective Gehring was to testify about the 

exhibits. The trial court considered each of the messages in the 15 series and 

considered their progression. The trial court excluded some messages that had 

nothing to do with Lavender’s need for money or feeling of despair. The trial court 

concluded that the state’s theory could be supported by the messages presented, and 

 

6 The trial court allowed the jury to consider the messages in this paragraph for any purpose, not 

limiting them to a determination of motive or other Evid.R. 404(B) reasons. The trial court 

instructed the jury accordingly. 
OHIO FIRST DISTRICT COURT OF APPEALS

 22 

that it would be up to the jury to determine whether such an explanation was 

credible. And as a final gate-keeping measure, the trial court considered the exhibits 

a third time as each one was addressed by Gehring and admitted into evidence, 

sometimes holding sidebar conferences to discuss some of the exhibits. 

{¶47} Having determined that the trial court did not abuse its discretion 

when it determined that the text messages were properly admitted for the purposes 

set forth in Evid.R. 404(B), we must now determine whether the trial court abused 

its discretion when it determined that the probative value of the exhibits was not 

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, 

or of misleading the jury in violation of Evid.R. 403(A). 

{¶48} When the texts were first discussed at trial, the trial court told the 

jury: 

The evidence that is now being introduced is received into the record 

for a limited purpose to show motive and intent. When you consider 

this evidence in your deliberations, you are not to use it for any other 

purpose, including to prove the character of an accused in order to 

show that the accused acted in conformity with that character. 

{¶49} An instruction regarding the proper use of the text message evidence 

was given 20 times at various points during the course of the presentation of the 

messages to the jury. 

{¶50} We conclude that the trial court, after having considered the problems 

presented with the content of the text messages, fashioned a procedure to minimize 

the danger that the jury would consider the evidence for improper purposes such 

that the decision that the admission of the messages did not violate Evid.R. 403(A) 

was not an abuse of discretion. 
OHIO FIRST DISTRICT COURT OF APPEALS

 23 

Testimony about Hitmen

{¶51} In this argument, Lavender claims that the trial court erred when it 

allowed Detective Gehring to testify as an expert witness on “how contract killings 

occur.” For the reasons set forth more fully in our analysis of Lavender’s third 

assignment of error relating to “expert” testimony of police officers, we conclude that 

this testimony was properly admitted lay option testimony pursuant to Evid.R. 701. 

See, e.g., State v. Johnson, 7th Dist. Jefferson No. 13JE5, 2014-Ohio-1226, ¶ 57 

(detective’s testimony as to gang activity was permissible under Evid.R. 701 based on 

detective’s personal knowledge and experience in the field). 

{¶52} We overrule Lavender’s first assignment of error. 

Sufficiency and Weight of Evidence 

{¶53} In his second assignment of error, Lavender claims that his conviction 

for aggravated murder was based upon insufficient evidence and was contrary to the 

manifest weight of the evidence. A challenge to the sufficiency of the evidence asks 

whether, viewing the evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found all the elements of the crime proven beyond a 

reasonable doubt. State v. Millikin, 1st Dist. Hamilton Nos. C-030825 and C030826, 2004-Ohio-4507, ¶ 15. Review of a weight-of-the-evidence challenge, 

however, requires examining the entire record, weighing all the evidence and 

reasonable inferences, and considering the credibility of the witnesses to determine 

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way, 

resulting in a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 

380, 387, 678 N.E.2d 541 (1997). 

{¶54} The state presented testimony from Coulter that he saw Lavender 

fleeing from the scene immediately after the shooting. While Lavender was running 

away, Coulter saw him wrap what appeared to be a small handgun in his shirt. 
OHIO FIRST DISTRICT COURT OF APPEALS

 24 

Coulter testified that he knew Lavender from the neighborhood. A composite sketch 

created from Coulter’s account bore a striking resemblance to Lavender, and Coulter 

was able to pick Lavender’s picture out from a photo array. Additionally, Johnson 

testified that he overheard a conversation in which Lavender claimed he was going to 

kill Lipscomb for money as part of a contract killing. Johnson also told police that he 

had seen Lavender with a small revolver. The fact that the police suspected that the 

weapon had been a small revolver was not public information, and Johnson had not 

been told this prior to his interview with detectives. Additionally, Lavender’s history 

of text messages demonstrated that he was becoming both increasingly desperate for 

money and increasingly despondent in general. And then he told someone that he 

was about to pick up a body, and that soon his money troubles would be over. 

Within days of the shooting, Lavender’s text conversations turned to thinking about 

purchasing a car. 

{¶55} Admittedly, this was not a “slam-dunk” conviction. But, on this 

record, there was sufficient evidence to support the jury’s verdict, and we cannot say 

that the jury lost its way when it convicted Lavender of aggravated murder or that his 

conviction was a manifest miscarriage of justice. We overrule Lavender’s second 

assignment of error. 

Ineffective Assistance of Counsel 

{¶56} In his third assignment of error, Lavender claims that his trial counsel 

was ineffective for several different reasons and that, as a result, he was denied a fair 

trial. We disagree. 

{¶57} To prevail on an ineffective-assistance-of-counsel claim, Lavender 

must demonstrate that counsel’s performance fell below an objective standard of 

reasonableness, and he was prejudiced as a result. Strickland v. Washington, 466 

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio 
OHIO FIRST DISTRICT COURT OF APPEALS

 25 

St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance will only be 

deemed deficient if it fell below an objective standard of reasonableness. Strickland

at 688; Bradley at 142. With regard to deficient performance, “a court must indulge 

a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Strickland at 689. In other words, “the 

defendant must overcome the presumption that, under the circumstances, the 

challenged action might be considered sound trial strategy.” Id. A reviewing court 

must indulge a presumption that counsel’s behavior fell within the acceptable range 

of reasonable professional assistance. Strickland at 689; Bradley at 142. With 

regard to the second required finding, a defendant is only prejudiced by counsel’s 

performance if there is a reasonable probability that the outcome of the proceedings 

would have been different but for the complained-of conduct. Strickland at 694; 

Bradley at 142. 

{¶58} Lavender claims that counsel was ineffective in 16 separate areas. We 

will address each in turn. 

Voir Dire

{¶59} Lavender first claims that trial counsel was ineffective for failing to 

pursue his challenge to the state’s preemptory strike of a juror pursuant to Batson v. 

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He claims that trial 

counsel erred when he withdrew the challenge “based on the fact that it was the first 

preemptory challenge.” As this court has noted, “the existence of a pattern of 

discriminatory strikes is not a prerequisite to a prima facie case or to a finding of 

actual discrimination by the trial court.” State v. Walker, 139 Ohio App.3d 52, 56, 

742 N.E.2d 1173 (1st Dist.2000); see State v. White, 85 Ohio St.3d 433, 436, 709 

N.E.2d 140 (1999). 
OHIO FIRST DISTRICT COURT OF APPEALS

 26 

{¶60} However, this case is distinguishable from Walker. In Walker, the 

only argument that the state raised relating to its decision to strike the AfricanAmerican juror was that since he was the first African-American juror struck and 

since the state had struck a white juror before that, there had been no pattern 

established. Walker at 57. In this case, however, the state had valid race-neutral 

reasons for using one of its preemptory challenges. The prospective juror had 

indicated that she would have a difficult time following the law and weighing 

circumstantial evidence. The prospective juror also said that she would not be a 

good juror. 

{¶61} In a case from the Second Appellate District, the court faced a claim 

that trial counsel had been ineffective for failing to timely issue Batson challenges to 

various witnesses. State v. Robertson, 90 Ohio App.3d 715, 720, 630 N.E.2d 422 (2d 

Dist.1993). In that case, trial counsel had waited until after the jury had been sworn 

before raising the issue. The court first determined that a prima facie case had been 

met as the jurors struck by the state were African-American. The court then went on 

to state that “[t]he only remaining question is whether a timely Batson challenge 

would have succeeded, i.e., was the Batson challenge meritorious.” 

{¶62} Engaging in the same analysis, we conclude that the challenge, while 

it would have been facially appropriate, would not have succeeded. The record 

demonstrates that the state had race-neutral reasons for striking the juror. Counsel, 

while incorrect in his understanding of how a Batson challenge is triggered, was not 

ineffective for failing to pursue it. 

Opening and Closing

{¶63} Lavender next cites six instances during the opening remarks and 

closing arguments of the parties in which counsel was ineffective. We will address 

each issue in turn. 
OHIO FIRST DISTRICT COURT OF APPEALS

 27 

{¶64} First, Lavender claims that counsel was ineffective for failing to object 

to the state’s comment in opening that the case did not have to be perfect, and that 

70 percent was okay. He claims that this statement mischaracterizes the beyond-areasonable-doubt standard of proof. 

{¶65} During opening statements, the state began by explaining to the jury 

how a trial is like putting a puzzle together. Since different witnesses have different 

information relevant to the case, each witness gives different pieces to the puzzle. 

The state then went on to say that: 

And, more importantly, if you keep that or you use that jigsaw puzzle 

reference in the back of your mind or in the back of your pocket, you’re 

going to see with respect to the burden of proof that’s imposed upon 

the State - - we talked yesterday about how the State doesn’t have to be 

perfect, that the jigsaw puzzle - - you all know this from your 

experience. As you start putting the puzzle together, if you don’t know 

what it is, sometimes you can have 70 percent of the puzzle done and 

you know it’s a picture of the Statue of Liberty. You don’t have the 

parts here of the sky, but you’ve got that. Sometimes you need more, 

sometimes you need less to determine what it is. And so as you listen 

to the evidence, it’s important to keep that as a reference. 

{¶66} In the context of this opening statement, it is not necessarily the case 

that the state is talking about the burden of proof. The analogy seems to be more 

about how you can tell what the picture is even when some of the pieces are missing. 

The rest of the opening statement talks about how there is no fingerprint evidence, 

there is no DNA evidence, there are no shell casings, etc. But, even without that 

evidence, the state would present enough to support a conviction. 
OHIO FIRST DISTRICT COURT OF APPEALS

 28 

{¶67} But even if the analogy were about proof beyond a reasonable doubt, 

the state’s comments were not prejudicial. We have previously addressed this exact 

issue in State v. Jones, 1st Dist. Hamilton No. C-160826, 2018-Ohio-1130, ¶ 14. In 

Jones, this court held: 

 Generally, “attempts to ‘clarify’ the term by example, analogy, 

metaphor, or simile are ill-advised.” State v. Turic, 2d Dist. Greene 

No. 2010 CA 35, 2011-Ohio-3869, ¶ 13. But as the Ohio Supreme 

Court stated when confronted with a different analogy, “While the 

prosecutor’s comments were perhaps inappropriate, we do not find 

that the comments denigrated the reasonable doubt standard. 

Moreover, the trial court’s ‘reasonable-doubt instructions negated any 

misconception by the jury.’ ” State v. Hanna, 95 Ohio St.3d 285, 

2002-Ohio-2221, 767 N.E.2d 678, ¶ 78, quoting State v. Lundgren, 73 

Ohio St.3d 474, 484, 653 N.E.2d 304 (1995). Even the Turic court, 

which cautioned against the use of analogies to further explain 

reasonable doubt, found that the defendant had shown no prejudice 

because “the trial court instructed the jury that the court would set 

forth the law to be applied to the case, and it correctly defined 

reasonable doubt shortly after voir dire and in the concluding jury 

instructions.” Turic at ¶ 14. 

 In this case, the jury was given the proper definition of 

reasonable doubt in the jury instructions. In light of this proper 

instruction, the state’s use of analogy—while ill-advised—did not 

denigrate the reasonable-doubt standard. And the comments did not 

rise to the level where it is clear that Jones would not have been 

convicted in their absence. 
OHIO FIRST DISTRICT COURT OF APPEALS

 29 

Jones at ¶ 14-15. The jury was properly instructed on the burden of proof in this 

case. Therefore, Lavender was not prejudiced by the statements made by the 

prosecutor in his opening statement. Counsel was not ineffective for failing to object. 

{¶68} Second, Lavender claims that counsel was ineffective for failing to 

object to statements made by the prosecutor during his opening statement that 

Lavender’s brother was a “hit man” and that killing people was the “family business.” 

Additionally, the prosecutor made the comment that Lavender had the nickname 

“Shooter” because he shoots people. Lavender argues that the statements were 

“grossly prejudicial” and irrelevant to the case, and the failure to object cannot be 

excused as trial strategy. 

{¶69} Toward the end of his opening statement, the prosecutor discussed 

the text messages that were going to be admitted and what they would demonstrate. 

MR. PREM: And you got to remember [sic], when you see 

these texts, when you see this evidence, this is a guy that really doesn’t 

want to talk on the phone to somebody about why his name is Shooter. 

He’s less guarded with his family. 

And he says, “It’s a lifestyle I’ve chosen.” His sister says at 

some point, “I don’t want to lose you like we did our brother.” 

And when you see that, at first glance you might think, wow, 

maybe the defendant’s brother was killed. The defendant’s brother 

wasn’t killed. The evidence is going to tell you that when the sister and 

the defendant were talking about that, they’re talking about his brother 

who was a hitman, his brother who used a small-caliber revolver - - 

MR. HARRIS: Judge, I’m going to object. 

THE COURT: Basis? 
OHIO FIRST DISTRICT COURT OF APPEALS

 30 

MR. HARRIS: His brother was a hitman and the evidence. It’s 

speculation, Your Honor. 

THE COURT: Well, I’m assuming you’re getting to the point 

where you’re going to establish that and connect it up. 

Again, I’ll remind you, ladies and gentlemen of the jury, 

opening statements are not evidence. 

Please continue. 

MR. PREM: The evidence is going to show it’s a family 

business. This is what he does. This is how he was trained. This is 

what he thinks. As sad as it sounds, this is how he lived his life back in 

August of 2014 when he chose to take Mr. Lipscomb’s life for money. 

{¶70} The reference to Lavender’s older brother as a hitman was important 

to the state to explain the text message from his sister in which she said that she did 

not want Lavender to wind up like he did. The state had evidence that Lavender’s 

brother had been convicted of aggravated murder in a murder-for-hire scheme. This 

context gave particular meaning to the statement made by his sister that would have 

been lost on the jury otherwise. Additionally, references to Lavender as “Shooter” 

and the explanation therefore were important because it tied Lavender to the person 

that Johnson knew as Shooter, who was the one he overheard talking about his plan 

to kill Lipscomb for money. The offhand remark about murder being the family 

business, while hyperbolic and improper, was an isolated one and we cannot say that 

Lavender would not have been convicted without it. It was therefore not ineffective 

for counsel to fail to object. 

{¶71} Third, Lavender claims that counsel was ineffective for failing to 

object to the state’s closing argument in which it reviewed the text messages from the 

months prior to Lipscomb’s death about robberies, the defendant’s difficult life, and 
OHIO FIRST DISTRICT COURT OF APPEALS

 31 

selling drugs because, as Lavender argues, the state wanted the jury to “understand 

who the defendant is.” 

{¶72} We have discussed the text messages and the propriety of their usage 

at some length in the previous assignment of error, and the rationale for which the 

trial court allowed them to be used. Therefore, we address solely the comment that 

the prosecutor made to the jury that he wanted the jury to “understand who the 

defendant is.” On the surface, it sounds like the state is attempting to use evidence of 

Lavender’s character to prove that he acted in conformity therewith on August 4, 

2014—in violation of Evid.R. 404(A). 

{¶73} But examining the closing argument overall, we found no improper 

comment when considering the context. During closing argument, the prosecutor 

quoted a series of texts regarding his need for money and his desire not to rob 

someone who doesn’t have any. The prosecutor then went on to say: 

Those two statements came in under this Evidence Rule 404B when 

the judge said they’re admitted for a limited purpose. And I would 

agree with Mr. Harris; you cannot consider the fact that the 

defendant’s talking about robbing somebody, the defendant’s talking 

about his life is so miserable he’s gonna sell drugs, you can’t allow that 

to so infuriate you that you let your bias, sympathy or emotions swing 

toward me and you say if he does that he’s got whatever coming to 

him. It’s only for a limited purpose for you to understand who the 

defendant is. 

(Emphasis added.) In context, the prosecutor was attempting to explain the exact 

opposite of what Lavender is claiming. The prosecutor properly explained that the 

jury could not consider the evidence for the purpose of deciding that he had acted in 
OHIO FIRST DISTRICT COURT OF APPEALS

 32 

conformity with the mentioned bad behavior. Reading the statement in context, that 

is clear. Counsel was not ineffective for failing to object on that basis. 

{¶74} Fourth, Lavender claims that counsel was ineffective for failing to 

object to the comment made by the prosecutor during closing argument that “the 

information the defense relied on in presenting their case was provided to them 

through the police officers and not through the investigative work of the defense 

attorneys or investigator,” as the state was trying to bolster its credibility. 

{¶75} During closing argument, the state was discussing the testimony of 

Ramon Davis. During Davis’s testimony, the state had elicited a response from Davis 

in which he admitted that he did not see anyone at the scene of the shooting when he 

went into the Port-O-Potty. The prosecutor then went on to say: 

And the reason that’s important is because when Mr. Harris 

was trying to tell you how he cracked this case by using Mr. Davis, Mr. 

Davis says - - wherever State’s Exhibit 20A is. You’re going to have it 

in the back and you listen to it. Don’t take my word for it. He says - - 

he talks about: I was coming out of the Port-O-Potty and another 

woman here, she saw the guy running. 

I asked him about that. I said: But then you made this 

statement - - I’m talking to Mr. Davis. It was another witness here that 

seen [sic] the man run. 

* * * 

And his answer is Yeah. 

* * * 

So the question is how do you think they got the 911 call [that 

Davis made]? How do you think they got the CAD report [that named 

Davis]? How do you think they got Mr. Davis’s name? 
OHIO FIRST DISTRICT COURT OF APPEALS

 33 

Through this great investigator Jonathan Campbell? Or 

through these very same police officers that on a daily basis - - he 

doesn’t get a bonus for getting the wrong guy convicted of a crime. 

And, in fact, you got to see him testify. You got to see Detective 

Gehring testify. You got to see Howard Grant testify. 

And I know Mr. Harris made a big deal about: These are 

professional witnesses, professional witnesses. 

{¶76} One of the main prongs of the defense’s theory of the case was that 

the state had conducted the investigation poorly. In particular, one of the major 

themes was that detectives ignored the information Davis had to offer and that they 

downplayed his significance. In this argument, the state was attempting to 

demonstrate that the investigators had not concealed the information Davis had to 

offer, nor had they completely ignored him. Lavender would not have had the 

information about Davis unless law enforcement had provided it. While the state 

may have been more spirited than would be preferable, both parties may be “colorful 

or creative” during closing argument, provided comments are supported by the 

evidence. State v. Brown, 38 Ohio St.3d 305, 317, 528 N.E.2d 523 (1988). The state 

was permitted to address the allegation made in Lavender’s closing argument as to 

the work of the detectives regarding Davis, and counsel was not ineffective for failing 

to object to his argument. 

{¶77} Fifth, Lavender claims that counsel was ineffective for failing to object 

to comments made by the prosecutor that tended to denigrate defense counsel. 

Lavender claims that the prosecutor told the jury that defense counsel was “trying to 

manipulate witnesses into saying something untrue, taking a fact and twisting it, and 

asking questions of the witness that were unfair.” He also claims that the state 
OHIO FIRST DISTRICT COURT OF APPEALS

 34 

“accused defense counsel of purposefully misleading the jury by not asking 

important, relevant questions of the witnesses. 

{¶78} During closing argument, the state was continuing to address the 

charges by Lavender’s trial counsel about the detectives being “professional 

witnesses” and, in particular, being purposefully nonresponsive to his questions on 

cross-examination. During his closing, defense counsel spent a great deal of time 

discussing this issue, at one point saying 

They’ve come to court specifically for this case. They testify without 

notes, so they’ve either reviewed their notes and got prepared or they 

went over something, but they can’t remember if the suspect gave 

them his phone with the pass code unlocked. They can’t recall that. 

Do you believe that? Or is that a professional witness testifying 

professionally? I want you to think of how evasive these officers were 

when being asked questions. 

{¶79} In response to this particular attack on the state’s case, the prosecutor 

responded: 

That’s important because Mr. Harris brought up these police 

officers. The one I remember is Grant, Howard Grant, who’s a 

sergeant, a supervisor, been a homicide cop for a long time. Has been 

in here before. Has been under the gun before. And he knows that a 

defense attorney can take a fact and twist it. Can take something that’s 

small and make it big. 

And so there was an exchange between Mr. Harris and Sergeant 

Grant. Where Harris said: Isn’t it true that most witnesses don’t want 

to cooperate with the cops? Remember that? And Grant didn’t answer 
OHIO FIRST DISTRICT COURT OF APPEALS

 35 

at first. I forget, he equivocated in some way: I can’t say that’s true all 

the time. 

And Mr. Harris: Isn’t it true that most witnesses don’t want to 

cooperate with the cops. And he did it two or three times. He tried to 

get the judge to get him to answer the question. 

And then I interceded and said: Judge, he’s trying to answer the 

question posed. 

And then Mr. Harris changed the question slightly: Isn’t it true 

that in that neighborhood, most people don’t want to talk to the cops. 

And Sergeant Grant said: Well, yeah, that’s true. 

* * * 

So the question was not fair for what he was trying to do; and 

that is he’s trying to - - and this isn’t a bad thing; he’s trying to put 

doubt in the case, he’s trying to attack the case. That’s his job. That’s 

what he’s supposed to do, but he’s not a magician and he’s stuck with 

the evidence that the police are able to get. 

{¶80} The state’s rebuttal closing was a direct response to defense counsel’s 

assertion that the “professional witnesses” were being purposefully nonresponsive to 

his questions on cross-examination. The argument was appropriate, and defense 

counsel was not ineffective for failing to object to it. 

{¶81} Finally, Lavender claims that counsel was ineffective for failing to 

object to the state’s comments during closing argument that the prosecutor had told 

the witnesses to “tell the truth whether it helps me or hurts me,” which represented 

the state’s attempt to improperly bolster their credibility. 

{¶82} Again, we find nothing improper for trial counsel to have objected to. 

During defense counsel’s closing argument, counsel focused specifically on the two 
OHIO FIRST DISTRICT COURT OF APPEALS

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witnesses who tied Lavender to the crime. First, counsel attacked Domingo Johnson. 

According to defense counsel, Johnson had every reason to lie on the stand to save 

himself. He was facing numerous felony-drug charges and was hoping to have them 

all dismissed. Similarly, counsel attacked the testimony of Dennis Coulter, the state’s 

eyewitness. Because of his involvement in the case, Coulter and his family had been 

moved into witness protection. As a result of being in witness protection, their 

expenses were being paid by the government. Defense counsel implied that, as a 

result of the state paying his expenses, Coulter felt compelled to testify in a way that 

the state wanted him to. 

{¶83} In response to this argument, the state said: 

Remember what Dennis told you that I told him to do. I mean, 

I sat down with Dennis. In his testimony he said we sat down, we 

reviewed what I’ve said in the past. 

I sat down with him and I said to him, like I said to Domingo: 

You got one job here. It’s to tell the truth whether it helps me or helps 

him. 

* * * 

And I said [to Johnson]: what do you got to do to get my help? 

Tell the truth whether it helps me or helps him. 

Defense counsel had implied that there was an implicit quid pro quo that existed 

between the state and its two witnesses. The state was permitted, as it did, to negate 

that implicit attack by going over in closing the terms of the deals. The government’s 

payment of Coulter’s expenses while in witness protection was not conditioned on his 

testifying in any particular way. And Johnson’s deal with the state relating to his 

pending charges was also not contingent on him testifying a certain way. This was a 
OHIO FIRST DISTRICT COURT OF APPEALS

 37 

proper argument for the state to make, and defense counsel was not ineffective for 

failing to object. 

Admission of Photographs

{¶84} Lavender next argues that counsel should have objected to the 

admission of three photographs depicting him flashing stacks of money on Facebook 

and a picture of him making a finger gun gesture to the camera. The state argued 

that the pictures of cash were relevant because they were taken from Lavender’s 

phone and, as Detective Gehring testified, murder-for-hire participants are usually 

paid in cash. On appeal, Lavender argues that there was no legitimate trial strategy 

for allowing the pictures in. 

{¶85} One of trial counsel’s strategies was to explain away the texts and 

social media evidence, as much as possible, by depicting it as the posturing of a 

teenager engaged in a segment of urban culture that finds such images and talk 

admirable. During the cross-examination of Coulter, for example, counsel for 

Lavender questioned Coulter about the culture in some detail, even getting Coulter to 

admit that he, too, had posed for such pictures at one time even though Coulter 

thought of himself as a “positivity” rap artist. The photos fed into that narrative, 

where they were not to be taken seriously, but rather to be seen as a poseur. In light 

of this, it was not improper for trial counsel to fail to object to the admission of the 

photographs. 

Prosecutorial Misconduct – Leading Questions

{¶86} In addition to the above, Lavender makes several additional 

arguments relating to counsel’s failure to object to portions of the proceedings that 

he claims represent prosecutorial misconduct. In his first argument, Lavender 

claims that counsel should have objected to the state’s use of leading questions on 

direct examination. 
OHIO FIRST DISTRICT COURT OF APPEALS

 38 

{¶87} We have examined the three instances cited by Lavender in their 

context. All three came from the questioning of a detective on areas of procedure 

about which trial counsel had presented evidence that the police work had been 

deficient. But these questions in no way coached the witness to give an answer that 

was untrue or that the witness would not have otherwise given. See State v. Lott, 51 

Ohio St.3d 160, 555 N.E.2d 293 (1990). This was not a situation, like this court has 

addressed previously, where the prosecutor had “essentially testified for the state’s 

witnesses.” See State v. Lee, 1st Dist. Hamilton No. C-160294, 2017-Ohio-7377, ¶ 31. 

Trial counsel’s failure to object to these isolated questions was not ineffective. 

Prosecutorial Misconduct – Bolstering Witness Credibility

{¶88} Next, Lavender claims that counsel was ineffective for failing to object 

to a series of questions presented to law enforcement witnesses designed to 

demonstrate that they had followed proper procedure. Lavender now argues that the 

state was improperly “bolstering” its case and improperly shoring up the credibility 

of its witnesses. But Lavender cites no legal rule that this violates, and he has made 

no reference to any legal authority that stands for the proposition that the state is not 

permitted to do so. Trial counsel placed the quality of the police work at issue in this 

case, and the state was permitted to respond to that by eliciting testimony about the 

quality of the police work. Trial counsel understood that he had placed that at issue, 

and therefore, did not object when this evidence was presented. And he was not 

ineffective for failing to do so. 

Prosecutorial Misconduct – Improper Expert Testimony

{¶89} Increasingly, this court is seeing cases in which criminal defendants 

are seeking reversals of their convictions based on the argument that members of law 

enforcement have offered testimony at trial as expert witnesses. The argument 

generally goes that, since the officer offered testimony beyond the scope of a lay 
OHIO FIRST DISTRICT COURT OF APPEALS

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person, he is testifying as expert witness, but the state did not file a report pursuant 

to Crim.R. 16(K). And since that rule says that “[f]ailure to disclose the written 

report to opposing counsel shall preclude the expert’s testimony at trial,” the trial 

court erred when the testimony was allowed. (Emphasis added.) Crim.R. 16(K). 

{¶90} While Lavender’s argument is somewhat difficult to follow, he seems 

to first argue that Police Officer Grant improperly testified as a “quasi expert 

witness” on eyewitness identification. Grant was the officer who conducted the 

photo array with Coulter. The state asked him what he thought when Coulter first 

expressed that one individual looked like the suspect, and then said that another was 

the person he saw. Lavender also claims that Grant improperly testified as an expert 

witness on the issues relating to pretrial motions to suppress eyewitness 

identifications and the rules relating to the disclosure of exculpatory evidence. He 

also claims that Grant improperly testified as an expert witness on how homicide 

investigations are properly undertaken. Lavender further claims that Detective 

Gehring testified as an expert witness on the question of how discovery works in a 

criminal prosecution, how people in a high-crime neighborhood behave and speak, 

the use of burner phones and trap houses, the workings and identification of 

firearms, the proper implementation of a photo array for identification, and the 

usefulness of a composite sketch. 

{¶91} Recently, this court has addressed the issue of police officers giving 

expert testimony based on their experience in law enforcement. In the first case, this 

court addressed the question of a police detective who testified as an “expert in 

investigating child abuse and neglect.” State v. Hall, 1st Dist. Hamilton No. C170699, 2019-Ohio-2985, ¶ 9. In that case, the state qualified the detective as an 

expert, the trial court recognized her as an expert, and the detective then testified to 

such issues as how children victimized by sexual assault typically behave, the 
OHIO FIRST DISTRICT COURT OF APPEALS

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credibility of the complaining witnesses, and explanations for lack of physical 

evidence. This court concluded that the detective’s opinions constituted expert 

opinions and that they fell under the requirements of Crim.R. 16(K). Id. at ¶ 20. We 

held that the testimony was not only improper, but that it was also crucial to the 

state obtaining a conviction. Id. at ¶ 25. This fact coupled with what this court found 

to be “pervasive prosecutorial misconduct during the closing arguments” resulted in 

the reversal of the conviction. Id. at ¶ 39. 

{¶92} A few weeks later, this court returned to the issue when addressing a 

police officer who testified as an accident reconstructionist on the question of 

whether a defendant intentionally drove into a pedestrian. State v. Benson, 1st Dist. 

Hamilton No. C-180128, 2019-Ohio-3255. In that case, the parties conceded that the 

officer had testified as an expert witness, and the state had failed to submit a report 

pursuant to Crim.R. 16(K). Id. at ¶ 13. We held that the testimony violated the rule 

and that it also was improper because it was an opinion on an ultimate issue. Id. at ¶ 

15. But this court went on to conclude that the error was harmless, because the other 

evidence favoring the conviction was “much more extensive and powerful” than it 

had been in Hall. Id. at ¶ 32. 

{¶93} Most recently, this court has addressed the question of a police officer 

who testified as an expert witness on fingerprint analysis. State v. Johnson, 1st Dist. 

Hamilton No. C-170354, 2019-Ohio-3877. The witness testified that the fingerprint 

of the defendant matched that of ones found on certain evidence. The state claimed 

that the “evidence examination worksheet” that had been provided to the defendant 

constituted the expert report. Id. at ¶ 20. The witness testified to her specialized 

training, and the methodology she used when collecting and comparing the evidence. 

Id. at ¶ 21-23. We found that the defendant had not shown that the state had 

violated Crim.R. 16(K) because the “evidence examination worksheet” was not in the 
OHIO FIRST DISTRICT COURT OF APPEALS

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record, and the defendant could not establish that it failed to meet the Crim.R. 16(K) 

requirements. Id. at ¶ 42. 

{¶94} By its terms, Crim.R. 16(K) applies to “an expert witness for either 

side.” In each of the above cases, there was no question that the witness was giving 

expert testimony such that the testimony fell within the parameters of Evid.R. 702 

and, ultimately, Crim.R. 16(K). But if a witness is not testifying as an expert, Crim.R. 

16(K) does not apply. See, e.g., State v. Heller, 9th Dist. Lorain No. 18CA011304, 

2019-Ohio-4722, ¶ 10 (Crim.R. 16(K) does not apply to a case where a doctor is 

providing a lay opinion based on personal observation that an infant’s injuries were 

not the result of an accident); see also State v. Heineman, 2016-Ohio-3058, 65 

N.E.3d 287, ¶ 22 (8th Dist.). But within this recent line of jurisprudence, this court 

has not been called upon to address the question of when the testimony of a police 

officer becomes expert testimony because that factor was not in contention. The 

answer for our purposes lies somewhere between the interplay of Evid.R. 701 and 

702. 

{¶95} In 2001, the Ohio Supreme Court discussed the interplay between 

Evid.R. 701 and 702. State v. McKee, 91 Ohio St.3d 292, 744 N.E.2d 737 (2001). In 

that case, the court said: 

It is consistent with this emerging view of Evid.R. 701 that courts have 

permitted lay witnesses to express their opinions in areas in which it 

would ordinarily be expected that an expert must be qualified under 

Evid.R. 702. The situation presented in this case fits into this 

classification. Although these cases are of a technical nature in that 

they allow lay opinion testimony on a subject outside the realm of 

common knowledge, they still fall within the ambit of the rule’s 

requirement that a lay witness’s opinion be rationally based on 
OHIO FIRST DISTRICT COURT OF APPEALS

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firsthand observations and helpful in determining a fact in issue. 

These cases are not based on specialized knowledge within the scope of 

Evid.R. 702, but rather are based upon a layperson’s personal 

knowledge and experience. 

Id. at 296-297. The Twelfth Appellate District outlined the distinction between lay 

and expert opinion as 

[a]n “expert witness” is defined as one who is “qualified by 

knowledge, skill, experience, training, or education to provide a 

scientific, technical, or other specialized opinion about the evidence 

or a fact issue. * * * ” Black’s Law Dictionary (8th Ed.2004) 1633. In 

contrast, a “lay witness” is defined as one who does not testify as an 

expert and is restricted to “giving an opinion or making an inference 

that (1) is based on firsthand knowledge, and (2) is helpful in 

clarifying the testimony or in determining facts.” Id.

State v. Fread, 12th Dist. Butler No. CA2013-03-045, 2013-Ohio-5206, ¶ 14. The 

distinction between lay and expert-witness opinion testimony is that lay testimony 

results from a process of reasoning familiar in everyday life, while expert testimony 

results from a process of reasoning that only specialists in the field can master. 

McKee at 297, fn. 2. 

{¶96} As this court has noted, police officers may offer lay opinion 

testimony under Evid.R. 701 if it is based on the officers’ perceptions through 

experience. State v. Smith, 2017-Ohio-8558, 99 N.E.3d 1230, ¶ 44 (1st Dist.), citing 

State v. Martin, 1st Dist. Hamilton No. C-150054, 2016-Ohio-802, ¶ 16. As another 

court noted, “[i]t is well-settled that a police officer may testify concerning matters 

that are within his experience and observations that may aid the trier of fact in 

understanding the other testimony pursuant to Evid.R. 701.” State v. Jones, 2015-
OHIO FIRST DISTRICT COURT OF APPEALS

 43 

Ohio-4116, 43 N.E.3d 833, ¶ 108 (2d Dist.), citing State v. Tatum, 10th Dist. Franklin 

No. 10AP-626, 2011-Ohio-907, ¶ 17. 

{¶97} A number of courts have determined that a police officer’s opinion 

testimony may be admissible to explain a fact at issue even when it is based on 

specialized knowledge. See Smith at ¶ 45 (officer testified that quantity of drugs 

recovered represented an amount intended for distribution rather than for personal 

use); State v. Calhoun, 8th Dist. Cuyahoga No. 105442, 2017-Ohio-8488, ¶ 36 

(officer’s testimony regarding cell phone image extraction admissible when it was 

based on his training and experience as a “certified mobile examiner”); State v. Blair, 

2016-Ohio-2872, 63 N.E.3d 798, ¶ 96 (4th Dist.) (detectives properly gave opinion 

that an individual did not have the strength to beat the victim to death and did not 

exhibit the kind of wounds that administering such a beating would have created); 

Tatum at ¶ 17 (detective testified, based on his experience shooting, working at crime 

scenes and recovering spent casings, that a large-caliber weapon was involved in 

shooting); State v. Meddock, 2017-Ohio-4414, 93 N.E.3d 43, ¶ 21 (4th Dist.) (officer’s 

testimony regarding the ingredients and equipment necessary to manufacture 

methamphetamine); State v. Rardon, 2018-Ohio-1935, 112 N.E.3d 380, ¶ 58 (5th 

Dist.) (testimony from officer regarding thousands of text messages from accused 

drug dealer to explain terminology); State v. Johnson, 7th Dist. Jefferson No. 13JE5, 

2014-Ohio-1226, ¶ 57 (detective’s testimony as to gang activity was permissible 

under Evid.R. 701 based on detective’s personal knowledge and experience in the 

field); State v. McClain, 6th Dist. Lucas No. L-10-1088, 2012-Ohio-5264, ¶ 13 

(detective’s testimony that quantities of narcotics recovered during the execution of 

the search warrant suggested that they were for sale as opposed to personal use was 

admissible under Evid.R. 701 as lay person opinion testimony because his testimony 

was based on his training and experience). 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶98} It is clear that Crim.R. 16(K) requires the admission of expert 

testimony before a report is required. We have discussed the distinctions between 

expert and lay opinion testimony. And we have also considered under what 

conditions members of law enforcement may offer lay opinions based on their 

experience and observations that may aid the trier of fact in understanding the other 

testimony. Now we turn to the testimony about which Lavender complains. 

{¶99} At the time of trial, Sergeant Howard Grant had been a police officer 

for 17 years. He had been a supervisor in the Special Investigations Section 

investigating homicides for 10 months. Prior to that, he had supervised a number of 

other departments. His role was to supervise investigations, including management 

of a crime scene, the proper charges to be filed, and preparation of a case for trial. 

His main role in this case was related to the administration of the photo array to 

Coulter. 

{¶100} Lavender first claims that Grant gave improper expert opinion on the 

validity of the photo array used in this case, and photo arrays in general. In rebuttal 

after Lavender’s trial counsel’s cross-examination, the state asked Grant 

Q: When Mr. Harris was asking you about this photo spread 

and you said are you asking me what my opinion of the lineup is and 

he didn’t ask you that. Have you looked at the photographs of these 

individuals? 

A: Yes 

Q: Is there anything glaring of that sticks out to you as being 

obviously noticeable or that points to any one picture that a person 

should pick out? 

A: No. 
OHIO FIRST DISTRICT COURT OF APPEALS

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This line of questioning does not call for an expert opinion, nor does it even rely on 

Grant’s experience as a police officer. During cross-examination, trial counsel was 

trying to get Grant to admit that the photograph of Lavender was much different 

than the photographs of the other five subjects in the array. This was not expert 

testimony. 

{¶101} Lavender next claims that the state elicited expert testimony from 

Grant regarding Coulter’s certainty regarding the identification of Lavender in the 

array. 

Q: Okay. Would you consider that - - you said the number 4 

thing, said it looks like him, but you didn’t consider it necessarily an 

ID. What did you think about Mr. Coulter’s statement about this 

individual? 

A: He believed that that person in Number 5 was the person 

that he saw commit the homicide. 

Q: Okay. Did you stop at that point? 

A: I did not stop. 

Q: What did you do? 

A. My normal protocol is to ask is there anything else you want 

to say about this. Once he gave me the additional information about 

Number 5 we moved on from it. Took that photograph, put it in my 

folder, turned it backward and I presented to him Number 6. 

In this case, Grant administered the photo array one picture at a time. Coulter was 

shown each photograph and asked if he recognized the person depicted. When Grant 

reached Number 4, Coulter said that it looked a lot like the person he saw. When 

Grant moved on to Number 5, Coulter said that the person in that photograph was 

definitely the person he saw. Contrary to what Lavender has argued, this testimony 
OHIO FIRST DISTRICT COURT OF APPEALS

 46 

was not offered as an expert opinion on how Coulter performed in the identification 

process. Rather, it was a factual recounting of why Coulter would have seemingly 

said that two different people looked like the shooter. Regardless, the testimony was 

not expert testimony, nor again was it lay opinion testimony based on Grant’s 

experience as a police officer. 

{¶102} Lavender next complains that Grant gave expert opinion testimony on 

motions to suppress witness identification testimony. Lavender claims that the state 

then used that testimony later to suggest that a lineup is not suggestive if a court 

admits it into evidence. During Grant’s testimony, the state asked 

Q: And you know - - do you know as a police officer if a lineup 

is suggestive, unfair, doesn’t comply with this Revised Code that he 

was talking about, what does the defense through his attorney do at 

that point. 

A: They would file a motion to suppress that identification. 

Q: And - - 

MR. HARRIS: Objection, Your Honor. 

THE COURT: Basis? 

MR. HARRIS: We submit, Your Honor. 

Q: What is that? 

A: A motion to suppress would be a hearing that’s done in front 

of the judge in the court where the defense attorney and defendant are 

there with the prosecutor and they argue whether that photo lineup 

was suggestive or inappropriate or unfair. 

Q: And if it’s determined that the lineup was suggestive or 

inappropriate or unfair what happens to the lineup? 

A: It becomes inadmissible in that case. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Later, during the state’s redirect examination, Grant was asked: 

Q: When Mr. Harris was asking you on cross about suggestive 

photographs and you said it’s a court issue, what did you mean by 

that? 

A: What I meant by that it’s for the Court to determine whether 

the lineup will be used further in court. If the Court determined that 

the lineup was not suggestive or suggestive, the Court will make the 

determination, not me as a detective. 

Q: So is there a process, to your knowledge, as a matter of law 

that allows a defendant who thinks a lineup is suggestive to challenge 

it in court? 

A: Yes, a suppression hearing. 

This testimony represents Grant testifying to an area that would not be something 

within the knowledge of a lay person, and it was based on his experience as a police 

officer, having participated in photo arrays and having testified in court regarding 

them. But we do not agree with Lavender’s characterization of the testimony as 

suggesting that if a court admits a lineup its nonsuggestive nature is established as a 

matter of law. The state never made that argument, and much of the testimony and 

argument regarding the photo array revolved around whether it was suggestive. So, 

clearly, the jury could not have been confused on whether that point had been 

established. 

{¶103} The problem with this line of testimony was that it simply wasn’t 

relevant. But even though it was not relevant, counsel was not ineffective for failing 

to object unless Lavender was prejudiced by that failure. In this case, the jury was 

given the photographs and they were able to determine if the photo array was so onesided that picking Lavender from it was a foregone conclusion. 
OHIO FIRST DISTRICT COURT OF APPEALS

 48 

{¶104} As to Grant, Lavender finally argues that he gave improper expert 

opinion testimony about how homicide investigations are generally conducted and 

gave improper testimony relating to the discovery process. As to the first issue, this 

was proper lay opinion testimony under Evid.R. 701. One of the major thrusts of 

Lavender’s defense at trial was that his arrest was the result of sloppy police work. 

The state was permitted to contradict that assertion by having Grant, a supervisor of 

homicide detectives, testify about the proper conduct of a homicide investigation. 

{¶105} As to the discovery line of questioning, the state began by asking 

Grant if he knew what discovery was. 

A: Discovery means all the information we use to charge a 

defendant will be turned over - - is to be turned over to the defendant’s 

attorney for review. 

Q: And is it your understanding as a police officer that we do 

that or furnish that to the defendant through his attorney prior to 

going to trial. 

A: Yes. 

Q: Now, have you ever heard the term or have you ever 

engaged in conversation with any prosecutor about evidence favorable 

to the defendant. Do you know what that is? 

A: Say that again. 

Q: Evidence favorable to the defendant? 

A: Yes. 

Q: What is that? 

A: I mean, it is what it is in the statement; if we have evidence 

that is favorable to the defendant, we have to turn that over to the 

defense. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Q: Assume for the sake of this hypothetical question that 

you’ve got a homicide offense and you have an individual that you have 

evidence committed the crime and you have a witness that comes 

forward and says that person didn’t do that, somebody else did it. 

If that information is inconsistent with your theory of the case, 

is that something you disregard or is that something you furnish to the 

prosecutor, that this witness said that person didn’t do it? 

A: Ideally that information will be passed on to the 

prosecutor’s office. You let them know what you have. I think the 

evidence will speak for your investigation, but you do pass that 

information. 

Q: And then do you know what happens to that information 

with respect to the prosecutor and the defense attorney? 

A: Not off the top - - I mean, I don’t generally deal with that. 

That’s more of a prosecutor situation how they handle that. 

This testimony was elicited with regard to how the police handled the information 

that had been provided to them by Davis. The police did not believe that Davis had 

any useful information because he was first reluctant to talk at all, and when he did 

he repeated information that he had learned from another source. Counsel for 

Lavender relied heavily on the fact that the description given by Davis did not match 

Lavender and that the police had improperly disregarded him. The testimony given 

by Grant was designed to explain how such evidence is handled, and how defense 

counsel learned of the evidence and to dispel the implicit argument that the state had 

attempted to bury it. Unlike the testimony regarding the legal significance of a 

motion to suppress, this was simply testimony about how certain information is 

handled during the course of an investigation, based on Grant’s experience, and was 
OHIO FIRST DISTRICT COURT OF APPEALS

 50 

helpful to the jury in that regard. Therefore, it fell within Evid.R. 701 and outside the 

scope of Crim.R. 16(K). 

{¶106} We now turn to the argument that Detective Gehring provided 

improper expert opinion testimony. Lavender claims that Gehring gave improper 

expert opinion testimony on the question of how discovery works in a criminal 

prosecution, how people in a high-crime neighborhood behave and speak, the use of 

burner phones and trap houses, the workings and identification of firearms, the 

proper implementation of a photo array for identification, and the usefulness of a 

composite sketch. 

{¶107} At the time of his trial testimony, Detective Gregory Gehring had been 

a police officer for a little over 20 years. He has been a homicide detective since 

2006. He testified to his training in the police academy, his work as a district patrol 

officer, his work in the personal crimes unit, and his transfer to the homicide 

division. He also testified to his post-academy instruction. 

{¶108} The questions that Gehring was asked about the discovery process 

were similar to those asked of Grant. We conclude that they were designed to assist 

the jury and properly admitted at trial. 

{¶109} Next, Lavender claims that Gehring gave improper expert opinion 

testimony regarding how people in high-crime areas behave and how they speak, that 

Gehring improperly decoded slang for the jury, and the meaning of terms like 

“burner phones” and “trap houses.” Gehring testified that, as a beat officer, he got to 

know the people in the neighborhoods and how they communicated. He testified 

that the “slang” is a form of language he frequently encounters at work. His 

involvement with homicides that were drug-related caused him to learn that 

vocabulary as well. This is all the type of experience that is appropriately relied upon 
OHIO FIRST DISTRICT COURT OF APPEALS

 51 

when giving a lay opinion pursuant to Evid.R. 701. Trial counsel’s failure to object 

was not improper. 

{¶110} Additionally, Gehring was properly permitted to testify as to how a 

firearm operates. Gehring had been a police officer for over 20 years and had fired a 

gun “thousands of times.” Similarly, his experience with firearms would allow him to 

render an opinion as to whether a particular picture contained an image of a 

revolver. 

{¶111} As to the appropriateness of the photo array, the state asked if the 

array was problematic for being too suggestive, “as a police officer with the years of 

experience that you have.” He said that he did not have a problem with the array. 

But this series of questions was in response to questions asked of Gehring by defense 

counsel on cross-examination, where counsel tried to get Gehring to admit that since 

Lavender was the only individual in the array with a “chin strap” beard, the array was 

unduly suggestive. This was pure lay opinion testimony, and not necessarily related 

to his experience as a police officer. And, as we have indicated previously, the jury 

had the opportunity to review the array and reach its own conclusions. Trial counsel 

was not ineffective for failing to object on the basis that this was improper expert 

testimony. 

{¶112} Finally, Gehring testified that the composite sketch looked a lot like 

Lavender, saying that “that’s the closest composite sketch looking to a suspect that I 

can remember.” This is opinion testimony in only its loosest sense. The statement 

was not being offered to literally establish that it was the best composite picture he 

had ever seen. Simply that the composite bore a remarkable resemblance to 

Lavender, a fact the jury could see for itself. The fact that Gehring had had a chance 

to see many more composite pictures than the average person does not mean that the 
OHIO FIRST DISTRICT COURT OF APPEALS

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observation was any more informative. It was not opinion testimony, and trial 

counsel was correct not to object to it. 

{¶113} In his brief, Lavender cites a series of other passages “for additional 

improper opinion testimony,” but presents no argument as to them. We have 

reviewed them all and find that none were expert opinions which would have 

triggered Crim.R. 16(K). 

{¶114} Having reviewed every instance cited by Lavender in which he claims 

that the state improperly offered expert opinion testimony, we find no instances 

where that was the case. We did hold that one section of testimony—relating to the 

role of a motion to suppress and its legal significance—was not relevant. But we 

further hold that counsel was not ineffective for failing to object because the issue 

was one the jury could determine on its own. And, nonetheless, the testimony was 

not improper because it was not expert opinion testimony. 

Prosecutorial Misconduct – Hearsay Testimony

{¶115} Lavender next argues that counsel was ineffective for failing to object 

to the prosecutor’s misconduct through his use of hearsay testimony. We disagree. 

{¶116} Lavender first claims that the prosecutor improperly elicited hearsay 

testimony from the witness who created the composite sketch based on the 

description given by Coulter. Lavender claims that the Ohio Supreme Court has not 

addressed the issue. But it has. The court said 

A drawing of an alleged assailant sketched by a police artist, a poster 

reproduction of that drawing, a ‘mug shot’ of the accused taken after 

arrest, and the testimony of police officers as to statements describing 

the accused made to them by a prosecuting witness, are admissible 

solely to indicate the process by which the accused was identified, 
OHIO FIRST DISTRICT COURT OF APPEALS

 53 

where that process is under attack, and to corroborate that 

identification. 

State v. Lancaster, 25 Ohio St.2d 83, 267 N.E.2d 291 (1971), paragraph four of the 

syllabus. The testimony was admitted for the purpose of explaining how the image 

was produced. Therefore, trial counsel’s failure to object was not ineffective 

assistance. 

{¶117} Lavender then argues that trial counsel was ineffective for failing to 

object to the prosecutor soliciting hearsay testimony from officers who testified to 

what Coulter told them he saw the night of the shooting and what Johnson told them 

that he had heard. Examining the testimony, it does not seem that the testimony was 

elicited for a reason other than for the truth of the matter asserted. Had trial counsel 

objected, the objections might well have been sustained. But both Johnson and 

Coulter testified at trial, so the failure to object was not prejudicial. Additionally, the 

hearsay statements were isolated incidents in a two-week trial, and their impact as a 

result was minimal. 

Prosecutorial Misconduct – Text Messages

{¶118} Lavender claims that trial counsel was ineffective for failing to object 

to the state’s use of unduly prejudicial social media and text messages. The state 

introduced the message, which we have previously reviewed, regarding when 

Lavender shot into a car. Additionally, there were references on Lavender’s 

Facebook page where he referred to himself as “El Chapo.” These kind of messages, 

as we have indicated previously, fed into trial counsel’s narrative that all of these 

messages and posts were the product of a teenager just putting on the affectations of 

a street-wise tough guy, in keeping with the culture in which he was engaged. 

Whether that was the best strategy for counsel to adopt is a matter about which we 

need not speculate. “Debatable trial tactics generally do not constitute ineffective 
OHIO FIRST DISTRICT COURT OF APPEALS

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assistance of counsel.” State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 

N.E.2d 547, ¶ 116. 

Cross-Examination

{¶119} Next Lavender claims that trial counsel was ineffective for failing to 

effectively cross-examine the state’s witnesses, particularly Detective Gehring. 

Lavender points to numerous instances in which he claims that Gehring’s answers 

were unresponsive. Having reviewed the testimony, it is clear that Gehring and trial 

counsel engaged in some heated exchanges. But one of the cores of counsel’s trial 

strategy was showing that the state’s “professional witnesses” were actively hostile to 

the defense—interested only in seeing Lavender convicted and unwilling to consider 

other possibilities and vigorous in their defense of their theory of the case. This was 

an extremely compelling trial strategy that became a centerpiece of counsel’s closing 

argument. And none of the “nonresponsive” answers were anything that the 

detectives had not testified to on direct examination. Counsel was not ineffective for 

choosing to take this approach. 

Cooperative Informant

{¶120} Lavender next argues that counsel was ineffective for failing to object 

to the testimony of Johnson, the cooperative witness. But he has provided no basis 

upon which trial counsel could have challenged Johnson’s testimony. And this court 

addressed this issue in State v. McCoy, 1st Dist. Hamilton No. C-090599, 2010-

Ohio-5810. In that case, the appellant argued that the trial court erred when it 

overruled his “combined pretrial motions for a reliability hearing and for the 

exclusion of the cooperating witnesses’ testimony.” The court noted that the test of 

witness credibility is cross-examination, and it rejected the suggestion that the 

testimony of a cooperating witness is unreliable as a matter of law. Id. at ¶ 20. If 

trial counsel had sought to prevent Johnson’s testimony, he would have been 
OHIO FIRST DISTRICT COURT OF APPEALS

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unsuccessful, and Lavender has not provided this court with a reason for us to 

reconsider our holding on the matter. 

Eyewitness Identification Expert Testimony

{¶121} Lavender next claims that trial counsel was ineffective for failing to 

object to the testimony of the state’s “expert” witness on eyewitness identification for 

making equivocal statements about the reliability of the procedure. But this 

testimony was taken from the hearing before the trial court on Lavender’s motion to 

suppress the identification. The jury was not privy to this testimony, and the Rules 

of Evidence do not apply to motions to suppress. See State v. Boczar, 113 Ohio St.3d 

148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 17. Trial counsel was not ineffective for 

failing to object. 

Sentencing Mitigation

{¶122} Lavender next claims that counsel was ineffective for failing to 

present effective mitigation evidence. He claims that trial counsel failed to effectively 

argue the favorable mitigating information about his past, and did not call any 

witnesses to speak on his behalf. Defense counsel’s decision to call or not call a 

mitigation witness at sentencing is a matter of trial strategy; debatable trial tactics 

generally do not constitute ineffective assistance of counsel. See State v. Pickens, 141 

Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 222. While Lavender pointed 

out that he had contact with several family members, even a cursory review of the 

record in this case would indicate that calling at least some of them would be a bad 

decision. And nothing in the record indicates that anyone Lavender listed would 

have been helpful to his case. Trial counsel made an argument based on the records 

presented to the trial court that, if accepted, would have resulted in a reduced 

sentence. The fact that the trial court did not agree does not mean that defense 

counsel was ineffective in the attempt. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Cumulative Effect

{¶123} Lavender finally argues that the cumulative effect of all the above 

referenced instances of ineffective assistance of counsel was such that, even if the 

singular instances do not represent reversable error, the weight of the total deficient 

performance does. After our review, the only arguable instance of ineffective 

assistance was when trial counsel failed to object to hearsay testimony from officers 

who testified to what Johnson and Coulter told them. Therefore, there is no 

cumulative effect to consider. 

{¶124} For the reasons set forth above, we overrule Lavender’s third 

assignment of error. 

Prosecutorial Misconduct 

{¶125} In his fourth assignment of error, Lavender claims that he was denied 

his right to due process because of prosecutorial misconduct. The test for whether 

prosecutorial misconduct mandates reversal is whether the prosecutor’s remarks or 

actions were improper, and, if so, whether they prejudicially affected the substantial 

rights of the accused. State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780 

N.E.2d 21, ¶ 45. The touchstone of the analysis “is the fairness of the trial, not the 

culpability of the prosecutor.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 

25 N.E.3d 1023, ¶ 110, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 

L.Ed.2d 78 (1982). 

{¶126} Under this assignment of error, Lavender’s entire argument is that 

“[t]his trial had numerous instances of prosecutorial misconduct. These are outlined 

in [the] first three assignments of error of this brief and incorporated by reference 

herein. The prosecutor’s improper comments in closing arguments and the 

introduction of inadmissible evidence prejudiced the defendant’s right to a fair trial.” 

For the reasons set forth above, we overrule Lavender’s fourth assignment of error. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Sentencing 

{¶127} In his fifth assignment of error, Lavender claims that the trial court 

erred when it sentenced him to life without the possibility of parole. We disagree. 

{¶128} This court will only modify or vacate a sentence under R.C. 

2953.08(G)(2) if we find clearly and convincingly that either the record does not 

support the mandatory sentencing findings or the sentence is otherwise contrary to 

law. State v. White, 2013-Ohio-1325, 997 N.E.2d 629 (1st Dist.). 

{¶129} In Ohio, when a juvenile faces the sentence of life without the 

possibility of parole, the trial court “in exercising its discretion under R.C. 

2929.03(A), must separately consider the youth of a juvenile offender as a mitigating 

factor before imposing a sentence of life without parole.” State v. Long, 138 Ohio 

St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 1, citing Miller v. Alabama, 567 U.S. 460, 

132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). 

{¶130} Having reviewed the record, we conclude that the trial court expressly 

considered Lavender’s youth at the time of the offense. In discussing this factor, the 

trial court noted that “the victim’s youth is to be considered as a mitigating factor for 

purposes of sentencing with the expectation or understanding that the imposition of 

a life sentence without the possibility of parole is something not to be entered into 

lightly and that the Court needs to be aware of the possible Eighth Amendment 

ramifications * * *.” 

{¶131} Additionally, Lavender argues that the trial court did not give proper 

consideration to the various mitigating factors presented. But we cannot say what 

weight was given to the various evidence that the trial court considered, other than to 

say that the trial court clearly found that the aggravating factors outweighed the 

mitigating factors. As the Eighth Appellate District noted, “We cannot independently 

determine the weight given to each factor to arrive at a different sentencing 
OHIO FIRST DISTRICT COURT OF APPEALS

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conclusion or attempt to divine what factors the trial court deemed more relevant in 

the absence of specific findings. The court, having considered what the law requires, 

rendered a sentence within the bounds of the law.” State v. Ongert, 8th Dist. 

Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 15. We overrule Lavender’s fifth 

assignment of error. 

Eyewitness Identification 

{¶132} In his sixth assignment of error, Lavender claims that the trial court 

erred when it allowed the testimony regarding Coulter’s identification of Lavender 

from the photo array. He claims that the photo array was unduly suggestive, and 

that the identification was unreliable. We disagree. 

{¶133} The photo array was administered by Detective Grant, who was a 

blind administrator. Grant completed and read the blind administrator form to 

Coulter. In addition to the photograph of Lavender, the photographs of five other 

individuals were placed in separate folders. Grant showed the photos to Coulter one 

at a time, gave him as much time as he needed to review them, and allowed him to 

make a determination as to whether the person in the photograph looked familiar. 

Grant recorded anything that Coulter said about the photographs. Grant did not give 

any verbal or nonverbal cues regarding any of the subjects and gave no indication to 

Coulter if he picked the person the police suspected. Coulter initially said that the 

person in the fourth photograph looked like the suspect, but when he saw the fifth 

photograph, he positively identified Lavender. 

{¶134} Lavender claims that the photo array was unduly suggestive because 

his photo was the only one with a “chin strap” beard. But, his was not the only one 

with facial hair generally. And, further, Coulter was instructed at the time to place 

little weight on hair or facial hair, as that is a feature of a person’s appearance that 

can be easily changed. This court has held that an array was not unduly suggestive 
OHIO FIRST DISTRICT COURT OF APPEALS

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even when only the suspect had a curly hairstyle, where the images are otherwise 

similar. See State v. Taylor, 1st Dist. Hamilton No. C-020475, 2004-Ohio-1494. 

{¶135} This court has independently reviewed the six images. While 

Lavender’s photograph is the only one with a “chin strap” beard, others had facial 

hair and none of the images stood out remarkably. Neither the array itself nor the 

manner in which it was administered was unduly suggestive. 

{¶136} We also reject the argument that the identification was improper 

because Coulter had positively identified someone other than Lavender before 

identifying him. When shown photo four, Coulter said that “that looks more like 

him.” In saying that, Coulter was saying that photo four looked more like the 

perpetrator than the first three did. That was not a positive identification. So, when 

he got to the fifth photo and said “that looks exactly like him,” that was Coulter’s 

positive identification of Lavender. The trial court did not err when it allowed the 

testimony of the identification to be presented to the jury. We overrule his sixth 

assignment of error. 

Transfer to Adult Court 

{¶137} In his seventh assignment of error, Lavender claims that the juvenile 

court erred when it determined, after conducting an amenability hearing, that 

Lavender’s case should be transferred to the general division of the common pleas 

court for trial as an adult. But the trial court complied with the statutory 

requirements, and the record does not support the conclusion that the trial court 

abused its discretion. 

{¶138} The determination of whether a child is amendable to rehabilitation 

such that justice requires the juvenile court to retain jurisdiction over a case is left to 

the sound discretion of the juvenile court. State v. Amos, 1st Dist. Hamilton No. C150263, 2016-Ohio-1319, ¶ 38. “When determining whether a child is amenable to 
OHIO FIRST DISTRICT COURT OF APPEALS

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treatment within the juvenile system, the juvenile court must consider the factors 

weighing in favor of and against transfer, as outlined in R.C. 2152.12(D) and 

2152.12(E), as well as any other relevant factor.” State v. Marshall, 1st Dist. 

Hamilton No. C-150383, 2016-Ohio-3184, ¶ 14. 

{¶139} R.C. 2152.12 is silent with regard to how a juvenile court should weigh 

the factors in R.C. 2152.12(D) and (E). Thus, the juvenile court has the discretion to 

determine how much weight should be accorded to any given factor. See State v. 

Morgan, 10th Dist. Franklin No. 13AP-620, 2014-Ohio-5661, ¶ 37. “As long as the 

court considers the appropriate statutory factors and there is some rational basis in 

the record to support the court’s findings when applying those factors, [this court] 

cannot conclude that the trial court abused its discretion in deciding whether to 

transfer jurisdiction.” State v. West, 167 Ohio App.3d 598, 2006-Ohio-3518, 856 

N.E.2d 285, ¶ 10 (4th Dist.). 

{¶140} The record indicates that the juvenile court considered the 

appropriate statutory factors and identified those it found to be significant. Of note 

was the physical harm caused, the use of a firearm, Lavender’s maturity, and the 

safety of the community. The fact that the juvenile court noted, at one point, “five 

years in exchange for a life was insufficient” does not mean that the trial court did 

not apply the proper standard. This is especially true in light of the fact that the 

juvenile court expressly stated that it had. On this record, we cannot say that the 

trial court abused its discretion. We overrule Lavender’s seventh assignment of 

error. 

Cumulative Error 

{¶141} In his eighth assignment of error, Lavender argues that the 

cumulative effect of the errors outlined in the previous assignments of error require 

reversal. Pursuant to the doctrine of cumulative error, “a conviction will be reversed 
OHIO FIRST DISTRICT COURT OF APPEALS

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when the cumulative effect of errors in a trial deprives a defendant of the 

constitutional right to a fair trial even though each of the errors does not individually 

constitute cause for reversal.” State v. Pyles, 7th Dist. Mahoning No. 13 MA 22, 

2015-Ohio-5594, ¶ 103, citing State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 

(1995). However, the cumulative-error doctrine “does not apply to cases that are not 

marked by multiple instances of harmless error.” State v. Banks, 10th Dist. Franklin 

No. 03AP-1286, 2005-Ohio-1943, ¶ 23, citing Garner. We have not found multiple 

instances of harmless error in this case. We overrule Lavender’s eighth assignment 

of error. 

Conclusion 

{¶142} Having considered and overruled all eight of Lavender’s assignments 

of error, we affirm the judgment of the trial court. 

Judgment affirmed. 

MYERS, J., concurs separately. 

BERGERON, J. dissents. 

MYERS, J., concurring separately. 

{¶143} I write separately because I believe there were some errors in the 

trial that need to be addressed. First, I agree with the dissent as to a few of the 15 

series text messages. I would find that admission of the text messages stating that 

when Lavender was 14 he took two people’s lives, and he had shot and robbed a lot of 

people, were not admissible under Evid.R. 404 and should have been excluded. And, 

had defense counsel not withdrawn his or her objection, I would also find 

inadmissible Lavender’s text that he had shot into a car. But I find that in light of the 

other evidence produced at trial, and the instructions of the trial court, any error was 

harmless. In other words, the outcome would have been the same. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶144} I also would find that counsel was deficient in not objecting to some 

of the prosecutor’s statements, in particular, statements about the “family business” 

of being a hit man and comments that the text messages were used for a limited 

purpose—“to understand who the defendant is.” As to the latter, that is exactly what 

the statements could not be used for. And for the same reason, I would find these 

comments by the prosecutor improper. But again, considering all the evidence, 

Lavender cannot establish that he was prejudiced by this deficiency. 

BERGERON, J., dissenting.

{¶145} I respectfully dissent and would find that the admission of state’s 

Exhibit 16(A), the photograph with Mr. Lavender holding a gun aimed at the camera, 

and various texts in the state’s Exhibit 15 (the series of texts messages), constitutes 

reversible error. Ostensibly admitted under Evid.R. 404(B), to demonstrate motive 

and intent, admission of such evidence should be strictly construed against the state 

and conservatively applied by trial courts. State v. DeMarco, 31 Ohio St.3d 191, 194, 

509 N.E.2d 1256 (1987). The evidence here was probative of neither motive nor 

intent, and should have never been presented to the jury. And even if this evidence 

could survive scrutiny under Evid.R. 404(B), I would find that it fails an analysis 

under Evid.R. 403 given its lack of relevance and its corresponding prejudicial 

nature. See State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 

1278, ¶ 20. Because the trial court did not properly evaluate this evidence, it abused 

its discretion in such a manner that tainted the entire trial. 

{¶146} From the opening bell of this trial, the state endeavored to paint Mr. 

Lavender as an unsavory character. Calling Mr. Lavender a “gangster,” the state 

insisted that he was destined to become an assassin: “The evidence is going to show 

it’s a family business. This is what he does. This is how he was trained. This is what 
OHIO FIRST DISTRICT COURT OF APPEALS

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he thinks.”7 The photograph, according to the state, “exhibit[s] who he is.” Coupled 

with the text messages, these exhibits played a pivotal role in forging a damning 

portrait of Mr. Lavender in the jury’s mind, unrelated to the charged offense. 

A. 

{¶147} The state’s theory of the case was that Mr. Lavender, in his 

desperation for money, agreed to engage in a murder-for-hire plot that culminated in 

Mr. Lipscomb’s death. The state posited that various text messages illuminated this 

monetary despair, which allegedly revealed an “escalating” need for cash. Admitted 

here to show motive and intent, this type of evidence must “be temporally and 

circumstantially connected to the operative facts of the offense alleged.” State v. 

Griffin, 142 Ohio App.3d 65, 72, 753 N.E.2d 967 (1st Dist.2001). Spanning 

approximately four months, the messages disclose conversations ranging from 

asking family for money to attend a festival to discussing robberies (past and 

contemplated), drug dealing, and prior killings and/or shootings. Noticeably absent 

is any indication of Mr. Lavender’s involvement in a lucrative teenage assassin 

enterprise. Far from constituting a timeline of desperation, the texts merely served 

to cast Mr. Lavender as a “bad actor,” capable of committing other violent crimes and 

therefore likely to kill for money. See State v. Hart, 2018-Ohio-3272, 118 N.E.3d 

454, ¶ 41 (8th Dist.), quoting State v. Sargent, 2015-Ohio-704, 29 N.E.3d 331, ¶ 31 

(6th Dist.) (admission of other acts evidence erroneous despite limiting instruction, 

when other acts were “ ‘very similar to the charged offense or of an inflammatory 

nature.’ ”). The texts, with a mixture of teenage angst and perhaps braggadocio, 

chronicle a series of crimes allegedly committed or contemplated by Mr. Lavender: 

 

7 I also agree with Judge Myers regarding the ineffective assistance in failing to object to certain 

comments. 
OHIO FIRST DISTRICT COURT OF APPEALS

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 April 2014 text where he admits to “sell[ing] heroin [and] weed” for 

money (in other words, he’s a drug dealer); 

 May 2014 text asking a friend if he knows anyone that Mr. Lavender 

could rob; 

 June 2014 text related to a marijuana transaction; 

 June 2014 text in which he admits that he “took a [] life befo[re]” and 

that he “tried to kill” additional people; 

 June 2014 text discussing a potential robbery target; 

 July 2014 text admitting that “when I was 14 I took two [peoples’] 

life’s [sic]” and that he “shot” numerous people and “rob[b]ed” 

numerous others; 

 July 2014 text regarding a robbery he committed at 14 involving a 

drug transaction; and 

 July 2014 text regarding an aborted drug transaction in which he 

admitted to shooting nine times at a car. 

None of these texts suggest Mr. Lavender’s involvement in a murder-for-hire 

scheme, or give any inkling as to his “motive” or “intent” to perpetrate such an 

offense.8 Instead, these reflect admissions of past crimes (drug transactions, killings, 

and robberies) as well as contemplated crimes (robberies and drug-related). 

{¶148} Interspersed within these texts are various texts expressing a desire 

for money (such as asking for $25 to attend a “festival [i]n colerain” or bemoaning 

the fact that his cell service was about to be cut off). The state’s insistence that this 

all shows that he needs money is an overreach—many (if not most) criminal offenses 

 

8 If we engaged in a text-by-text review of each missive, I would probably find a handful of the 

texts closer in proximity to the shooting admissible. But this would not alter my overall analysis, 

because those few texts are more than drowned out by the significance of the inadmissible ones. 
OHIO FIRST DISTRICT COURT OF APPEALS

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are committed because someone wants money. Exploiting a defendant’s poverty or 

desire for money as a justification to parade a variety of past and contemplated 

misdeeds before the jury runs roughshod over Evid.R. 404(B) and poses grave risks 

to the integrity of criminal trials. Regardless, even if the texts about money showed 

motive here, those texts could have been selectively presented to the jury without all 

of the concomitant criminal admissions. Take his admission in different texts that he 

killed and shot people previously—those texts have nothing to do with money, 

nothing to do with any murder-for-hire scheme, and nothing to do with the offense 

at hand (the texts predated the death of Mr. Lipscomb). They thus provided nothing 

useful to the jury other than serving as a vehicle to “prove the character of a person 

in order to show action in conformity therewith.” Evid.R. 404(B). He’s a heartless 

killer—so the theory goes—and that proves he killed here too. But Evid.R. 404(B) 

was designed to avoid exactly that. 

{¶149} Dripping with prejudicial effect, the texts were also inadmissible (at 

the very least) under Evid.R. 403. Mr. Lavender stood trial charged with a contract 

killing, and the texts enabled the state to brandish evidence that he had engaged in a 

range of illegal behavior (particularly prior shootings and killings) unrelated to the 

death of Mr. Lipscomb. This is precisely the type of unfairly prejudicial evidence that 

Evid.R. 403(A) excludes because it “ ‘appeals to the jury’s emotions rather than 

intellect’ ” and invites the jury to rely on an improper basis for its decision. See State 

v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 24, quoting 

Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001); 

State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 89 (noting the 

danger of unfair prejudice refers to evidence which suggests a decision on an 

improper basis). 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶150} The majority quotes the state’s justification for the texts as turning 

on a timing question: “at some point it switches. In about June, it switches from 

trying to rob people to becoming a hitman.” But this is doubly misguided. First, if 

June is the real lynchpin, then what justification exists to wade through all of the 

prior texts (including scores I have not summarized here)? Second, and more 

importantly, it rests upon a serious mischaracterization—one can search the record 

in vain for any substantiation of that point. Texts about acting as a hitman might 

well be admissible on this record, but the trouble is there aren’t any. The state 

jumped in with both feet on the hitman theory, but it can’t bootstrap admissibility by 

conjuring up nonexistent evidence. 

B. 

{¶151} Similarly, the state successfully introduced the photograph depicting 

Mr. Lavender holding an object “consistent” with the shape of a revolver in his left 

hand. Based on testimony from the police’s informant, Mr. Johnson, that he 

overheard Mr. Lavender discussing the upcoming hit and saw him in possession a 

revolver, the state then hypothesized that a .22 caliber revolver must have been the 

murder weapon (despite never actually recovering any evidence beyond the caliber of 

the bullet). In the state’s calculus, the “gun” depicted in Mr. Lavender’s left hand 

became vital because it could have used .22 caliber bullets, could have been a 

revolver, and which could have been the murder weapon. 

{¶152} In the same photograph, however, Mr. Lavender also stands, grimfaced, right arm outstretched, pointing an unrelated gun directly at the camera. The 

alleged revolver in his left hand is barely perceptible, overshadowed by the much 

larger gun aimed at the camera. Words really cannot do this exhibit justice, so I 

include it below: 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶153} The prejudicial effect of this photograph needs little elaboration. At 

trial no one disputed that the gun (in fact a pellet gun) facing the camera was 

unrelated to the murder. Based on the attenuated nature of the photograph, the 

state’s introduction of such unrelated weapons evidence merely portrayed Mr. 

Lavender “as a person of violent character who had acted in conformity with his 

propensity to kill[.]” State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 

821, ¶ 48; compare State v. Gordon, 2018-Ohio-2292, 114 N.E.3d 345, ¶ 79 (8th 

Dist.) (admission of evidence that defendant carried a gun was error when alleged 

gun was never recovered and only speculation that a revolver was used in the killing) 

with State v. Connally, 10th Dist. Franklin No. 16AP-53, 2016-Ohio-7573, ¶ 30, 34 

(admitted photographs highly relevant when gun matching description of the gun 
OHIO FIRST DISTRICT COURT OF APPEALS

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used to commit the crime appeared, despite the fact that another unrelated gun 

appeared in the photo). 

{¶154} If you asked the average person on the street what that photo 

depicts, they would probably leap to the state’s conclusion—a “gangster”—and agree 

that that person needs to be locked away. Not blind to this point, the state assured 

the jury that this photo (and a couple of others) reveals “who he is.” It is little 

wonder the state’s zeal to highlight this picture to the jury, but Evid.R. 403 exists to 

avoid prejudicial scenarios such as what occurred here. Mr. Lavender should not be 

convicted because he looks the part, but rather because the evidence proves that he 

committed the offense beyond a reasonable doubt. 

C. 

{¶155} To be sure, as the majority points out, the trial court gave several 

limiting instructions. But there are two things wrong with this. First, as noted 

above, many of the worst texts had nothing to do with any motive or intent—they just 

confessed to awful crimes. Assuring the jury that the text is “being offered for the 

limited purpose to show motive and intent” (in the words of the trial court) would 

only hopelessly confuse the jury because it is probative of neither. Moreover, the 

inherently prejudicial nature of the photograph and text messages could not be cured 

by a limiting instruction, regardless of how many times it was incanted. See State v. 

Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, ¶ 39 (noting that 

limiting instruction was insufficient to overcome the prejudice of the improperly 

admitted evidence); State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 

1181, ¶ 50 (French, J., concurring in judgment only) (explaining that a limiting 

instruction does not guarantee admissibility when the danger of unfair prejudice 

substantially outweighs the evidence’s probative value); 1980 Staff Note, Evid.R. 105 
OHIO FIRST DISTRICT COURT OF APPEALS

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(“[I]f there would be danger of unfair prejudice, evidence * * * should not be 

admitted even with a limiting instruction.”). 

{¶156} Without the text messages and photograph, the remaining evidence 

was reduced to the eyewitness identification and the information provided by Mr. 

Johnson. And each had credibility issues. Mr. Coulter’s description of Mr. Lavender 

varied substantially from Mr. Lavender’s actual physical appearance. Mr. Coulter 

described a perpetrator with blue eyes and standing approximately 5 feet 7 inches or 

5 feet 8 inches tall; Mr. Lavender has brown eyes and stands over six feet tall. And 

his description of the perpetrator’s skin admittedly varied, as at times the perpetrator 

was light-skinned, dark-skinned, and brown-skinned. Mr. Coulter also described 

observing the perpetrator from a “couple of feet” away, when pictures of the scene 

revealed the impossibility of that characterization. As to Mr. Johnson’s testimony, 

questions of bias were self-evident. Testimony adduced at trial revealed that Mr. 

Johnson divulged the information regarding the identity of Mr. Lipscomb’s killer 

only after his apprehension for suspected criminal activity, and for which no charges 

were ever filed. Mr. Johnson also appeared to have quite a résumé of cooperating 

with the police in order to avoid charges or secure more lenient sentencing on his 

myriad outstanding charges. In other words, he seemed like a professional snitch—

always in the right place at the right time to overhear inculpatory remarks by others. 

{¶157} While the jury was free to weigh this testimony as they saw fit, the 

admission of the above evidence certainly reassured the jury that Mr. Lavender was a 

“bad actor” (or a “gangster,” as the state posited) and interfered with the jury’s ability 

to properly weigh the testimony from Messrs. Coulter and Johnson, ultimately 

allowing them to accord greater weight and credibility to the witness identification 

and informant. See State v. Walls, 2018-Ohio-329, 104 N.E.3d 280, ¶ 45 (6th Dist.) 

(improper admission of expert testimony inhibited jury’s ability to properly weigh 
OHIO FIRST DISTRICT COURT OF APPEALS

 70 

the evidence). This danger of “a potential for prejudice with respect not only to the 

weighing of the evidence but also the creation in the jury’s mind of an urge to punish 

for past acts” is precisely the justification for excluding such evidence. Griffin, 142 

Ohio App.3d at 71, 753 N.E.2d 967. As we explained in Hall, where the improper 

evidence “likely colored the jury’s ability to properly weigh the credibility of the 

witness[es],” we cannot have “confidence that the error did not impact the outcome.” 

State v. Hall, 1st Dist. Hamilton Nos. C-170699 and C-170700, 2019-Ohio-2985, ¶ 

24-25; see State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 

25-29 (appellate court must be convinced that the error was harmless beyond a 

reasonable doubt). 

{¶158} And the error is amplified by the prosecution’s trial strategy to paint 

Mr. Lavender as a violent criminal desperate to kill for money. See Griffin at 79 

(magnitude of prosecution’s use of other acts evidence amplified when “was not 

isolated within the context of the trial, but was part of what was manifestly a strategy 

to portray [the defendant] as an emotionally unstable person to be feared for his 

violent propensities”); id. at 85 (“[I]t would be disingenuous to suggest that the 

evidence against [the defendant] was so overwhelming that there was no reasonable 

possibility that the improperly admitted other-acts and character evidence did not 

contribute to [the defendant’s] conviction.”); State v. Johnson, 71 Ohio St.3d 332, 

341, 643 N.E.2d 1098 (1994) (irrelevant and unduly prejudicial evidence “was not 

harmless error, especially in light of the weakness of the evidence in this case and the 

state’s undue reliance on impermissible character evidence in its prosecution[.]”). 

{¶159} Therefore, I would find that the admission of the photograph and 

text messages constituted errors that cannot be dismissed as harmless. Before we 

send this defendant to prison for the rest of his life, I would afford him a new trial 
OHIO FIRST DISTRICT COURT OF APPEALS

 71 

limited to evidence probative of whether he committed the murder at hand and free 

from the taint of improper character evidence. I respectfully dissent. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.