[Cite as State v. Jones, 2018-Ohio-4089.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee : Hon. Craig R. Baldwin, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

KALEONTE A. JONES : Case No. CT2017-0072 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. CT2017-0072 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: October 02, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

D. MICHAEL HADDOX ERIC J. ALLEN 

Prosecuting Attorney 4605 Morse Road 

By: GERALD V. ANDERSON, II Suite 201 

Assistant Prosecuting Attorney Gahanna, OH 43230 

27 North Fifth Street 

P. O. Box 189 

Zanesville, OH 43702-0189 
Muskingum County, Case No. CT2017-0072 2 

Wise, Earle, J.

{¶ 1} Defendant-Appellant Kaleonte A. Jones appeals the sentence of conviction 

and sentence of the Court of Common Pleas of Muskingum County, Ohio. PlaintiffAppellee is the State of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶ 2} On December 17, 2015 a shooting occurred on Corwin Avenue in 

Zanesville, Ohio. At the scene, police recovered two .40 caliber shell casings. The 

following day, an 11-year-old girl found a loaded Smith & Wesson firearm in a sandbox 

about 150 feet from where the shooting took place. The shell casings found at the scene 

were later confirmed to have been shot from the Smith & Wesson. Further investigation 

revealed appellant and a co-defendant were involved in the shooting and that the weapon 

belonged to appellant. Appellant confessed to the crime and his DNA was found on the 

trigger of the gun. 

{¶ 3} In November 2016, appellant was indicted on one count each of attempted 

murder in violation of R.C. 2923.02(A) and R.C. 2903.02(A), felonious assault in violation 

of R.C. 2903.11(A)(2), and tampering with evidence in violation of R.C. 2921.12(A)(1). 

Each of these charges included a firearm specification and a gang specification. Appellant 

was further charged with one count of participating in a criminal gang in violation of R.C. 

2923.42(A) and one count of having weapons under disability in violation of R.C. 

2923.12(A)(2). 

{¶ 4} In January 2017, per a plea agreement with the state, appellant entered 

guilty pleas to the charges of felonious assault, having a weapon under disability and one 

firearm specification. 
Muskingum County, Case No. CT2017-0072 3 

{¶ 5} In June 2017, the state filed a motion to set aside appellant's plea and 

reinstate the charges as appellant failed to cooperate with the state per their plea 

agreement. The trial court granted the motion and the matter proceeded to a jury trial on 

August 15, 2017. During trial, Detective Smittle testified regarding street gangs in the 

Columbus Ohio area. He testified that during an interview with appellant, he asked 

appellant if he was a member of one particular area gang "Bomb Squad." Appellant 

corrected the detective, advising him he was a member of "Banger Squad." Appellant did 

not object to any of this testimony. 

{¶ 6} During Smittle's testimony photos were admitted of known gang members, 

appellant flashing gang hand signs and holding guns. Appellant objected on the basis 

that photos were cumulative. The trial court directed the state to limit the number of photos 

shown of any one individual. Appellant did not further object. 

{¶ 7} After hearing all the evidence and deliberating, the jury returned a verdict of 

guilty of attempted murder, felonious assault, and tampering with evidence, all with the 

attendant firearm specifications, and having a weapon under disability. The jury acquitted 

appellant of participating in a criminal gang as well as each gang specification. He was 

subsequently sentenced to an aggregate total of 18 years incarceration. 

{¶ 8} This appeal followed, and the matter is now before this court for 

consideration. Appellant raises one assignment of error: 

I 

{¶ 9} "IT IS STRUCTURAL ERROR TO DEPRIVE THE APPELLANT HIS 

PRESUMPTION OF INNOCENCE BY ALLOWING A WITNESS TO TESTIFY 

REGARDING PRIOR CONVICTIONS." 
Muskingum County, Case No. CT2017-0072 4 

{¶ 10} In his sole assignment of error, appellant takes issue with a portion 

Detective Smittle's testimony and photographs introduced by the state during the 

detective's testimony. First appellant cites the portion of Detective Smittle's testimony 

wherein he testified that appellant told the detective he was a member of "Banger Squad." 

Second, appellant appears to argue an excessive number of photos were presented of 

appellant flashing gang signs and holding guns. Appellant argues the detective's 

testimony, evidence of past convictions, and presentation of the photos violated his 

presumption of innocence, and amounts to structural error. We disagree. 

{¶ 11} First, as for the appropriate standard of review, the Supreme Court 

of Ohio stated in State v. Wamsley, 117 Ohio St.3d 388, 391-92, 2008-Ohio-1195, 884 

N.E.2d 45: 

We have previously held that “ ‘if the defendant had counsel and was 

tried by an impartial adjudicator, there is a strong presumption that 

any other constitutiona[l] errors that may have occurred are subject 

to harmless-error analysis.’ ” State v. Hill (2001), 92 Ohio St.3d 191, 

197, 749 N.E.2d 274, quoting Rose v. Clark (1986), 478 U.S. 570, 

579, 106 S.Ct. 3101, 92 L.Ed.2d 460. Moreover, as we stated in 

State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, 

“[c]onsistent with the presumption that errors are not ‘structural,’ the 

United States Supreme Court ‘ha[s] found an error to be “structural,” 

and thus subject to automatic reversal, only in a “very limited class 

of cases.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 
Muskingum County, Case No. CT2017-0072 5 

1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 

335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of 

counsel)); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 

(1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 

S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection 

of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 

L.Ed.2d 122 (1984) (denial of self-representation at trial); Waller v. 

Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial 

of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 

124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction).’ ” 

Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 18, 

quoting Neder v. United States (1999), 527 U.S. 1, 8, 119 S.Ct. 1827, 

144 L.Ed.2d 35. 

{¶ 12} A “structural error” analysis only supplies an automatic finding of prejudice 

for preserved errors thereby avoiding harmless error analysis. It does not supply an 

automatic finding of plain error for unpreserved errors. Wamsley supra citing State v. 

Rector, Carroll App. No. 01AP-758, 2003-Ohio-5438. The Supreme Court of Ohio 

addressed when structural error analysis should be used in State v. Perry, 101 Ohio St.3d 

118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 23: 

We emphasize that both this court and the United States Supreme 

Court have cautioned against applying a structural-error analysis 
Muskingum County, Case No. CT2017-0072 6 

where, as here, the case would be otherwise governed by Crim.R. 

52(B) because the defendant did not raise the error in the trial court. 

See Hill, 92 Ohio St.3d at 199, 749 N.E.2d 274; Johnson, 520 U.S. 

at 466, 117 S.Ct. 1544, 137 L.Ed.2d 718. This caution is born of 

sound policy. For to hold that an error is structural even when the 

defendant does not bring the error to the attention of the trial court 

would be to encourage defendants to remain silent at trial only later 

to raise the error on appeal where the conviction would be 

automatically reversed. We believe that our holdings should foster 

rather than thwart judicial economy by providing incentives (and not 

disincentives) for the defendant to raise all errors in the trial courtwhere, in many cases, such errors can be easily corrected. 

{¶ 13} Here, appellant did not object to Detective Smittle's testimony regarding 

gang affiliation. He therefore bears the burden of demonstrating that a plain error affected 

his substantial rights and, in addition that the error seriously affected the fairness, integrity 

or public reputation of judicial proceedings. United States v. Olano, 507 U.S. at 725,734, 

113 S.Ct. 1770 (1993); State v. Perry, 101 Ohio St.3d 118, 120, 802 N.E.2d 643 (2004). 

Even if the defendant satisfies this burden, an appellate court has discretion to disregard 

the error. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); State v. Long, 

53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus; Perry, supra, 

at 118, 802 N.E.2d at 646. 
Muskingum County, Case No. CT2017-0072 7 

{¶ 14} As for the photos, the admission or exclusion of evidence rests within the 

sound discretion of the trial court. In order to find an abuse of discretion, we must 

determine the trial court's decision was unreasonable, arbitrary or unconscionable and 

not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 

N.E.2d 1140 (1983). 

{¶ 15} Relevant evidence is “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.” Evid.R. 401. Generally, all relevant 

evidence is admissible, and irrelevant evidence is inadmissible. Evid.R. 402. 

{¶ 16} Otherwise relevant evidence is inadmissible, however, "if its probative value 

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

or of misleading the jury." Evid.R. 403(A). A trial court has broad discretion to determine 

whether relevant evidence must be excluded in accordance with Evid.R. 403(A) because 

"the exclusion of relevant evidence under Evid.R. 403(A) is even more of a judgment call 

than determining whether the evidence has logical relevance in the first place." State v. 

Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 40. 

{¶ 17} As to Detective Smittle's testimony that appellant admitted to being a 

member of "Banger Squad," appellant failed to object, and has therefore waived all but 

plain error. Appellant was charged with participating in a criminal gang and several gang 

specifications. The detective's testimony was therefore relevant to prove the charge as 

well as the gang specifications. Appellant has failed to raise or argue plain error. Even if 

he had, however, the argument would fail as appellant cannot show prejudice – he was 
Muskingum County, Case No. CT2017-0072 8 

acquitted of participation in a criminal gang, as well as each gang specification. We 

therefore find no error, plain or otherwise. 

{¶ 18} As to the photos, appellant did object to the cumulative nature. In response, 

the trial court directed the state to limit the number of photos it introduced, and the state 

complied. Transcript of Trial (T) 196-197. Appellant did not further object during Detective 

Smittle's testimony, nor at the conclusion of the state's case when the state moved to 

admit the photos into evidence. T 362. During his testimony, the detective identified in the 

photos appellant with known gang members, appellant flashing gang hand signs, and 

appellant's gang tattoos. T 186-195, 197-198. The photos, like appellant's admission to 

gang affiliation, were relevant to the charge of participation in a criminal gang as well as 

the gang specifications. We therefore find no abuse of discretion in the admission of the 

photographs. 

{¶ 19} Finally, we note appellant's brief contains a section titled "Evidence of 

Defendant's Past Convictions." Under this section appellant baldly states "this testimony" 

put at issue appellant's past convictions and removed the presumption of innocence. 

Appellant's brief at 6. Appellant provides no transcript reference for this alleged testimony, 

nor does he indicate what the alleged testimony consisted of. It is impossible to determine 

whether appellant is referring to the previously discussed gang affiliation statement of 

Detective Smittle, the photographs, or something else. Appellant has thereby failed to 

comply with App.R. 16(D) which states: 

(D) References in Briefs to the Record. References in the briefs to 

parts of the record shall be to the pages of the parts of the record 
Muskingum County, Case No. CT2017-0072 9 

involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p. 

231. Intelligible abbreviations may be used. If reference is made to 

evidence, the admissibility of which is in controversy, reference shall 

be made to the pages of the transcript at which the evidence was 

identified, offered, and received or rejected. 

{¶ 20} “It is the duty of the appellant, not this court, to demonstrate [his] assigned 

error through an argument that is supported by citations to legal authority and facts in the 

record.” State v. Taylor, 9th Dist. Medina No. 2783-M, 1999WL61619 at *3 (Feb. 9, 1999), 

App.R. 16(A)(7). “It is not the function of this court to construct a foundation for [an 

appellant's] claims; failure to comply with the rules governing practice in the appellate 

courts is a tactic which is ordinarily fatal.” Kremer v. Cox, 114 Ohio App.3d 41, 60, 682 

N.E.2d 1006 (1996). 

{¶ 21} The federal courts have discussed the problems resulting when a party 

omits important information in its appellate brief noting; “[c]ourts are entitled to assistance 

from counsel, and an invitation to search without guidance is no more useful than a 

litigant's request to a district court at the summary judgment stage to paw through the 

assembled discovery material. ‘Judges are not like pigs, hunting for truffles buried in the 

record.’ ” Albrechtson v. Bd. Of Regents (C.A.7, 2002), 309 F.2d 433, quoting United 

State v. Dunkel (C.A.7, 1991), 927, 955, 956. The Supreme Court of Ohio, in State ex rel. 

Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 

Ohio St.3d 288, 843 N.E.2d 174, 2006-Ohio-903, at ¶ 13; has also noted: 
Muskingum County, Case No. CT2017-0072 10 

The omission of page references to the relevant portions of the 

record that support the brief's factual assertions is most troubling. 

Appellate attorneys should not expect the court "to peruse the record 

without the help of pinpoint citations" to the record. Day v. N. Indiana 

Pub. Serv. Corp. (C.A.7, 1999), 164 F.3d 382, 384 (imposing a public 

reprimand and a $500 fine on an attorney for repeated 

noncompliance with court rules). In the absence of the page 

references that S.Ct. Prac.R. VI(2)(B)(3) requires, the court is forced 

to spend much more time hunting through the record to confirm even 

the most minor factual details to decide the case and prepare an 

opinion. That burden ought to fall on the parties rather than the court, 

for the parties are presumably familiar with the record and should be 

able to readily identify in their briefs where each relevant fact can be 

verified. 

{¶ 22} Because appellant's argument regarding "prior convictions" fails in this 

regard, the alleged error is overruled. 
Muskingum County, Case No. CT2017-0072 11 

{¶ 23} The judgment of conviction and sentence of the Court of Common Pleas of 

Muskingum County is affirmed. 

By Wise, Earle, J. 

Hoffman, P.J. and 

Baldwin, J. concur. 

 

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