[Cite as State v. Graham, 2023-Ohio-1453.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

ISRAEL GRAHAM,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 21 MA 0060

Application to Reopen

BEFORE:

Carol Ann Robb, David A. D’Apolito, Mark A. Hanni, Judges.

JUDGMENT:

Denied.

Atty. Gina DeGenova, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant 

Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th 

Floor, Youngstown, Ohio 44503 for Plaintiff-Appellee and

Israel J. Graham, pro se, Mansfield Correctional Institute, P.O. Box 788, Mansfield, 

Ohio 44901, Defendant-Appellant.

Dated: April 27, 2023
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Case No. 21 MA 0060

PER CURIAM.

{¶1} Defendant-Appellant Israel Graham seeks to reopen his appeal to raise 

additional assignments of error. For the following reasons, the application to reopen is 

denied.

{¶2} A jury in the Mahoning County Common Pleas Court found Appellant guilty

of aggravated robbery, three counts of kidnapping, and safecracking. The judge found 

him guilty of having a weapon while under disability. On appeal, Appellant was provided 

new counsel who filed a brief setting forth five assignments of error (some containing 

multiple issues). We sustained the first assignment of error, reversing and remanding the 

conviction for having a weapon while under disability due to the issue counsel raised with 

the insufficient jury waiver. We affirmed Appellant’s other convictions after overruling 

arguments on accomplice instruction, sufficiency of the evidence, weight of the evidence, 

effectiveness of trial counsel, and merger before sentencing. State v. Graham, 7th Dist. 

Mahoning No. 21 MA 0060, 2022-Ohio-4752. 

{¶3} On March 22, 2023, Appellant filed a timely application to reopen the 

appeal. A criminal defendant may apply for reopening of his direct appeal based on a 

claim of ineffective assistance of appellate counsel by raising an assignment of error or 

an argument in support of an assignment of error that because of appellate counsel's 

deficient representation was not previously considered on the merits (or was considered 

on an incomplete record). App.R. 26(B)(1),(2)(c). Pursuant to the rule, in order to warrant 

reopening for further briefing, the application must demonstrate a “genuine issue as to 

whether the applicant was deprived of the effective assistance of counsel on appeal.” 

App.R. 26(B)(5). If a genuine issue on ineffectiveness is established so that further 

briefing is ordered, then the appellant must fully prove the ineffectiveness of appellate 

counsel by demonstrating deficient performance and prejudice. App.R. 26(B)(7)-(9).

{¶4} The traditional two-pronged test of deficiency and prejudice also provides 

the underlying framework for assessing whether Appellant raised a genuine issue as to 

the ineffectiveness of appellate counsel under App.R. 26(B)(5). State v. Tenace, 109 

Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5, applying Strickland v. Washington, 
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466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Adams, 146 Ohio 

St.3d 232, 2016-Ohio-3043, 54 N.E.3d 1227, ¶ 2. This test is specified in the rule’s 

requirement that the application for reopening be accompanied by a sworn statement 

explaining how the appellate attorney’s representation “was deficient with respect to the 

assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and 

the manner in which the deficiency prejudicially affected the outcome of the appeal * * *.” 

App.R. 26(B)(2)(d). 

{¶5} In general, deficient performance is characterized by counsel’s 

representation falling below an objective standard of reasonableness. Strickland, 466 

U.S. at 688. In assessing a cited deficiency, reviewing courts are to heavily defer to 

counsel's judgments and strongly presume the contested conduct was in the wide range 

of reasonable representation. Tenace, 109 Ohio St.3d 451 at ¶ 7. Courts refrain from 

second-guessing the strategic decisions of counsel. State v. Carter, 72 Ohio St.3d 545, 

558, 651 N.E.2d 965 (1995). In reviewing for ineffective assistance of counsel, prejudice 

refers to the determination of whether there exists a reasonable probability the result of 

the proceedings would have been different in the absence of the cited deficiency. Tenace, 

109 Ohio St.3d 451 at ¶ 5. A reasonable probability is more than “some conceivable 

effect on the outcome of the proceeding.” Strickland, 466 U.S. at 69. See also Carter, 

72 Ohio St.3d at 558 (prejudice exists if the court finds the results unreliable or the 

proceedings fundamentally unfair).

{¶6} More specifically on the first stage in App.R. 26(B), for the applicant “to 

justify reopening his appeal” for further briefing, it has been said he must meet “the burden 

of establishing there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of 

ineffective assistance of counsel on appeal.” Tenace, 109 Ohio St.3d 451 at ¶ 6, quoting 

State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). See also State v. Were, 

120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 11. In considering this test, 

“appellate counsel need not raise every possible issue in order to render constitutionally 

effective assistance.” Tenace, 109 Ohio St.3d 451 at ¶ 7, citing Jones v. Barnes, 463 U.S. 

745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) and State v. Sanders, 94 Ohio St.3d 

150, 151-152, 761 N.E.2d 18 (2002).
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{¶7} “An error-free, perfect trial does not exist, and is not guaranteed by the 

Constitution.” State v. Italiano, 7th Dist. Mahoning No. 19 MA 0095, 2021-Ohio-1283, ¶ 

35, citing State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996). “Experienced 

advocates since time beyond memory have emphasized the importance of winnowing out 

weaker arguments on appeal and focusing on one central issue if possible, or at most on 

a few key issues, to avoid diluting the force of stronger arguments.” Jones, 463 U.S. at 

751-752. Accordingly, constitutionally effective appellate counsel need not raise every 

non-frivolous argument the client wishes to present. Id. at 751. Making selections on the 

choice of appellate arguments is a strategical decision properly employed to avoid diluting 

the strength of stronger arguments. Id. at 752. 

{¶8} Appellant alleges appellate counsel was ineffective for failing to set forth 

two additional assignments of error. His first proposed assignment of error, which 

presents two issues, provides:

“APPELLANT WAS DENIED A FAIR TRIAL WHEN DETECTIVE BLOOMER AND 

PROSECUTOR IMPROPERLY VOUCHED FOR THE ALLEGED ACCOMPLICE 

CREDIBILITY AND BOLSTERED THEIR TESTIMONY IN VIOLATION OF THE 

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND 

ARTICLE I, SECTIONS 1, 10, AND 16 OF THE OHIO CONSTITUTION.”

{¶9} A witness, who was an employee of the restaurant Appellant robbed, 

testified to her phone communications with Appellant before and after the robbery wherein 

Appellant disclosed his intent, offered payment for her silence, and asked for the address 

of another employee who was speaking to police. A detective explained that he 

subpoenaed the phone records for the phone number Appellant provided to police as his 

personal number. From this, he received phone logs confirming Appellant communicated 

with the employee. (Tr. 271). A phone with the same phone number was recovered on 

Appellant during his arrest. After the detective obtained a search warrant for this phone, 

a task force technician used the Cellebrite program to extract the content of text 

messages and print them in a report. (Tr. 272-274). There was no objection made during 

this portion of the detective’s testimony.

{¶10} On cross-examination, defense counsel inquired about notes written by the 

detective and other officers, asked why the subpoena did not obtain the content of text 
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messages, confirmed that the detective had the content of all texts in the Cellebrite report 

he read, and emphasized the detective did not testify about the contents of the text 

messages. (Tr. 282-283). Defense counsel then questioned the detective on topics 

related to the credibility of the identification and the weight of the testimony of Appellant’s 

former girlfriend. 

{¶11} On redirect examination, the prosecutor asked the detective if the content 

of the text messages he reviewed in the report confirmed what the employee described 

from the stand about their communications on: her getting paid; where the other 

employee lived; the money would be put in her mailbox; and it would occur on a Sunday. 

(Tr. 289-290). The only objection occurred on the fifth content-confirmation question, 

where the prosecutor asked if the content confirmed he was referring to a robbery. The 

prosecutor then asked if “the content of the message confirmed what the witness was 

saying?” Without objection, the detective answered in the affirmative. (Tr. 290).

{¶12} Under his first proposed assignment of error, Appellant sets forth two 

arguments. First, he argues the detective’s testimony on redirect improperly vouched for 

the witness’ credibility. Citing State v. Boston, 46 Ohio St.3d 108, 129, 545 N.E.2d 1220, 

1240 (1989) (“it is the fact finder, not the so-called expert or lay witnesses, who bears the 

burden of assessing the credibility and veracity of witnesses”). In his objected-to answer, 

the detective did not provide an opinion on the veracity of the employee. The objectedto answer and his other now-contested answers were in response to questions about 

whether certain texts he read were consistent with the testimony he heard from the 

witness as she testified on the stand. These were factual questions and answers, not 

opinions on witness credibility. We also point out the information was elicited on redirect

examination after defense counsel opened various doors regarding the texts. It is also 

noted the law cited by Appellant does not proscribe testimony which is additional support 

for the truth of the facts presented in a witness’ testimony or which helps in evaluating the 

veracity of a witness. See State v. Stowers, 81 Ohio St.3d 260, 263, 690 N.E.2d 881 

(1998). 

{¶13} Next, Appellant claims the alleged bolstering error was compounded in the 

rebuttal portion of closing arguments where the prosecutor noted the employee received 

texts and phone calls, recited other evidence, and then said: “We’ve got a phone, We’ve 
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got texts. We’ve got phone calls * * *.” (Tr. 323-324). Citing State v. Keene, 81 Ohio 

St.3d 646, 666, 693 N.E.2d 246 (1998) (finding the prosecutor’s description of a witness 

as “one of the best witnesses any of us has seen in quite awhile” was not improper 

vouching for credibility). However, this did not constitute improper vouching as it did not 

place the prosecutor’s personal credibility in issue or refer to facts outside of the testimony 

presented at trial. See Keene, 81 Ohio St.3d at 666 (finding the prosecutor is permitted 

to factually say a witness’ testimony was supported by evidence which bolstered their 

credibility issue and finding the issue waived for lack of objection during closing). 

{¶14} As the state notes, the use of the word “we” was referring to the jury and 

others listening to the evidence presented at trial (rather than behind the scenes actors). 

The evidence presented at trial and referred to in the contested portion of the prosecutor’s 

rebuttal involved the employee testifying about communications she received from 

Appellant. The detective’s direct examination confirmed (without objection) the existence 

of communications between the employee and the phone number Appellant claimed as 

his own and disclosed a matching phone was recovered from Appellant at his arrest. In 

the contested portion of closing argument, the prosecutor merely generally, briefly, and 

vaguely made reference to this testimony with no veracity vouching. See State v. Myers, 

154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 147 (the prosecutor does not 

give a personal opinion of credibility by pointing to the strength of a witness’s testimony 

while referencing demeanor, opportunity to observe, consistency, and corroborating 

testimony). We additionally point out the contested statement was not made until the 

rebuttal portion of closing argument in response to the closing argument presented by 

defense counsel, and no objection was made to this rebuttal argument. 

{¶15} As to the first proposed assignment of error, Appellant has not raised a 

genuine issue as to whether he has a colorable claim of ineffective assistance of appellate 

counsel on the topic of counsel’s refusal to brief an argument claiming the aforecited 

instances were examples of improper vouching for the credibility of a witness. Contrary 

to Appellant’s argument, these are not arguable examples of improper vouching for the 

credibility of a witness. 

{¶16} Appellant’s second proposed assignment of error is also based on the 

phone communications, claiming:
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“APPELLANT WAS DENIED HIS SIXTH AMENDMENT TO THE UNITED 

STATES CONSTITUTION, CONFRONTATION CLAUSE, WHEN TRIAL COURT 

ERRED IN ADMITTING HEARSAY TESTIMONY OF TYRICA STEPHENS AND 

DETECTIVE RYAN BLOOMER, OVER OBJECTION, REGARDING PHONE RECORDS 

WHICH WERE NEVER AUTHENTICATED.”

{¶17} First, Appellant alleges the employee of the store he robbed should not have 

been permitted to testify as to the calls and texts she received from Appellant. He says 

trial counsel objected to her testimony. However, the objection specified the grounds of 

leading or asked and answered, not the grounds now raised. (Tr. 215). In any event, the 

employee testified to communications Appellant made to her, which constituted nonhearsay under the “Admission by Party-Opponent” rule. Evid. R. 801(D)(2). Even if a 

statement fits the standard definition of hearsay, the same rule specifically defines nonhearsay as including a statement offered against a party which is the party’s own 

statement or which is a statement of which the party has manifested an adoption or belief 

in its truth. Evid. R. 801(D)(2)(a)-(b). There is no confrontation clause argument to be 

made as the person who heard Appellant’s statements and adoptions testified to them at 

trial. Contrary to Appellant’s suggestion, her testimony on what Appellant said to her 

need not be authenticated. (And, as the state points out, the threshold for authentication 

is low, and a recipient can authenticate texts they received.) 

{¶18} Next, Appellant says appellate counsel should have raised hearsay and 

confrontation clause violations regarding the prosecutor asking the detective whether he 

reviewed the content of text messages and whether they were consistent with the 

employee’s testimony. As recited when discussing the first proposed assignment of error, 

there were no objections to the first four brief questions on whether the texts confirmed 

certain parts of the employee’s testimony. (Tr. 289-290). The only objection occurred on 

the fifth content-confirmation question, where the prosecutor asked the detective if the 

content of the texts he reviewed confirmed the employee’s testimony that Appellant was 

referring to a robbery. The prosecutor then generally asked if “the content of the message 

confirmed what the witness was saying?” Without objection, the detective answered in 

the affirmative. (Tr. 290). With this record, appellate counsel could not have simply 

presented the argument in Appellant’s proposed assignment but would have been 
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required to raise plain error or ineffective assistance of trial counsel as to the unobjectedto questions. See, e.g., Evid.R. 103(A)(1) (to raise error on appeal an objection to the 

admission of evidence must be made which states “the specific ground of objection” if 

apparent from the context and a substantial right must be affected). 

{¶19} Notably, the prosecutor did not ask the detective about the content of the 

messages on direct examination. It was defense counsel who elicited that the detective 

reviewed the content of the text messages (not the prosecutor, as alleged in Appellant’s 

reopening application). (Tr. 283). The detective’s contested testimony was only 

presented on redirect examination, after defense counsel suggested the detective was 

suppressing or avoiding the content of the texts, opening the door to the issue. 

Additionally, the employee had already testified, presented her claims as to the nonhearsay communications she received from Appellant, and was subjected to crossexamination by Appellant. See State v. Rose, 7th Dist. Jefferson No. 21 JE 0014, 2022-

Ohio-3529, 202 N.E.3d 1, ¶ 43 (pointing out the witness already testified on the subject 

of her communication with the informant and the evidence was only introduced on redirect 

examination of a detective after the state considered the door opened to introduce the 

messages). 

{¶20} Hence, the case at bar is distinguishable from cases cited by Appellant 

where the text recipient did not testify (and from cases where the content of texts are 

recited or presented as evidence by a detective in direct examination). See State v. 

Shaw, 2013-Ohio-5292, 4 N.E.3d 406 (7th Dist.), citing State v. Hood, 135 Ohio St.3d 

137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 40-42 (detective was not custodian of phone 

records; court could not ensure statements were non-testimonial as records were not 

authenticated as business records, where no recipient testified), citing Evid.R. 803(6) 

(business records hearsay exception). In Shaw, we found a detective’s testimony reciting 

the content of texts he viewed was improper where the texts were not authenticated (such 

as by introducing a photograph of the texts with testimony as to how they were obtained 

or testimony by the text recipient); however, we found any error harmless. Id. at ¶ 35-43. 

Here, the state did not utilize a business record path to admit communications under a 

hearsay exception (and the content of the texts was not obtained from the phone company 

but from an investigative extraction from the phone confiscated from Appellant). Rather, 
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the recipient of the calls and texts testified to her recollection of the communications from 

the party opponent.

{¶21} In summary, the proposed assignments of error do not raise a “genuine

issue as to whether the applicant was deprived of the effective assistance of counsel on 

appeal” as required by App.R. 26(B)(5). A colorable claim is not apparent as to whether 

counsel reasonably selected the arguments to brief on appeal. (Counsel set forth a 

rational selection of arguments and was successful in overturning one of the convictions). 

It was a valid appellate strategy to limit the amount of arguments in order to avoid diluting 

the strength of the favored arguments presumably chosen after review, research, and the 

weighing of the existence or specifics of objections made below. See generally Tenace, 

109 Ohio St.3d 451 at ¶ 7, citing Jones, 463 U.S. at 751 (appellate counsel does not 

render ineffective assistance by “focusing on one central issue if possible, or at most on 

a few key issues, to avoid diluting the force of stronger arguments.”). For the foregoing 

reasons, the application for reopening is denied.

JUDGE CAROL ANN ROBB

JUDGE DAVID A. D’APOLITO

JUDGE MARK A. HANNI

NOTICE TO COUNSEL

This document constitutes a final judgment entry.