[Cite as State v. Jenkins , 2018-Ohio-5153.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

__________________________________ JOURNAL ENTRY AND OPINION No. 105881

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. TREVONTE JENKINS

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-16-610627-A Application for Reopening Motion No. 520971

RELEASE DATE: December 19, 2018

FOR APPELLANTTrevonte Jenkins, pro se Inmate No. 694869 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, Ohio 44430-0901

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor By: Mary M. Frey Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

MARY J. BOYLE, J.: {¶1} Trevonte Jenkins has filed a timely application for re opening pursuant to App.R. 26(B). Jenkins is attempting to reope n the appellate judg ment, rendered in State v. Jenkins , 8th Dist. Cuyahoga No. 105881, 2018-Ohio-2397, that affi rmed his convictions and sentence of

incarceration for two counts of attempted murder in viol ation of R.C. 2903.02 and 2923.02, two

counts of felonious assault in violation R.C. 2903.11(A)(2), two c ounts of discharging a firearm on or near prohibited premises in violation of R.C. 2923.162(A )(3), two counts of improperly handling firearms in a motor vehicle in viol ation of R.C. 2923.16(A) a nd (B), one count of having weapons while under disability in viola tion of R.C. 2923.13(A)(2), one count of criminal damaging or endangering in vi olation of R.C. 2909.06(A)(1), and one count of domestic violence

in violation of R.C. 2919.25(A). We decline to reopen Jenkins’s original appeal. I. Standard of Review Applicable to App.R. 26(B) Applic ation for Reopening{¶2} In order to establish a claim of ineffective assistance of appellate counsel, Jenkins is required to establish that the performance of his appellate counsel was deficient and the deficiency resulted in prejudice. Strickland v. Washington , 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied , 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990). {¶3} In Strickland , the United States Supreme Court he ld that a court’s scrutiny of an attorney’s work must be highly deferential. The court further stated that it is all too tempting for a defendant to second-guess hi s attorney after conviction and that it would be too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Thus, a court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable profe ssional assistance; that is, the defendant must overcome the presumption that , under the circumstances, the challenged action might be considered sound trial strategy. Strickland

. II. Prosecutorial Misconduct {¶4} Jenkins has raised four propos ed assignments of error in support of his application for reopening. Having a common basis in law and f act, we shall simultaneously consider the first and third proposed assign ments of error. {¶5} Jenkins’s first proposed assignment of error is that: Appellate counsel fa iled to argue that appellant was prejudiced by the state’s misconduct in vouching for th e state’s key witness. {¶6} Jenkins’s third proposed assi gnment of error is that: Appellate counsel failed to argue that the prosecutor committed misconduct when the jury was misled by improper statements regarding the standard of evidence and the law.{¶7} Jenkins, through his first and third proposed assignments of error, argues that appellate counsel fa iled to argue on appeal the issue of prosecutorial misconduct. Specifically, Jenkins argues that prosecutorial misconduct resulted from: 1) prosecutor vouching for the credibility of a state’s witness during closing argument; 2) prosecutor instructing jury that a

lesser standard than reasonabl e doubt could be employed to convict Jenkins during closing argument; and 3) prosecutor misleading the jury regarding the evidence presented at trial during closing argument. {¶8} A prosecuting attorney possesses wide latitude to summarize the evidence and zealously advocate the state’s pos ition during closing argument. State v. Richey , 64 Ohio St.3d 353, 362, 595 N.E.2d 915 (1992). The individual sp ecific remarks by a prosecutor, made during closing argument, cannot be judged in isol ation, but must be examined in light of the

tenor and context of the entire closing argument. State v. Slagle , 65 Ohio St.3d 597, 607, 605 N.E.2d 916 (1992). Improper remarks made by a prosecuting attorney during closing argument are grounds for reversal only when the remarks serve to deny the de fendant a fair trial. State v.

Maurer , 15 Ohio St.3d 239, 266, 15 Ohio B. 379, 473 N.E.2d 768 (1984). {¶9} When the closing arguments made by the prosecuting attorney and defense counsel are viewed in their entirety, we find that Jenkins was not denied a fair tr ial: 1) both the prosecutor and defense counsel simply argued that the jury was charged with determin ing the credibility of each witness, and the prosecutor did not vouch for the credibility of any witness; 2) the prosecutor did not instruct the jury as to a lesse r standard of proof; and 3) the prosecutor did not mislead the jury with regard to the evidence presented during the course of trial. The remarks of the prosecutor during closing argument did not deny Jenkins a fair trial. Thus, Jenkins hasfailed to establish that he was prejudiced thr ough his first and third proposed assignments of

error. III. Defective Arrest Warrant and Indictment {¶10} Jenkins’s second proposed assi gnment of error is that: Appellant’s counsel was ineffective for fa iling to argue ineffective assistance of trial counsel rela ted to appellant’s indic tment and arrest warrant. {¶11} Jenkins, through his second proposed assignme nt of error, argues that appellate counsel failed to argue on appeal the issue of ineffective assistan ce of trial counsel. Specifically, Jenkins argues that the warrant for his arrest and the indic tment were defective. {¶12} Probable cause to obtain and execute an arrest warrant exists where the facts and

circumstances within the arrestin g officer’s knowledge are sufficien t to warrant a prudent man in believing that an offense was committed. Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142,(1964). Probable cause has been define d as “a fair probability that contraband or

evidence of a crime will be found.” Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). {¶13} Herein, the record demonstrates that sufficient probable cause existed for the Lakewood Police Dept. to obtain and execute an arrest warrant for Jenkins. Lakewood Police detective McLaughlin tes tified that: 1) there was a shooting at a bar located in Lakewood, Ohio, tr. 903; 2) the suspect motor vehicle involved in the shooting was identified through a city of Lakewood surveillance video, tr. 903; 3) the surve illance video revealed th at the suspected motor vehicle was a white Hyundai Accent, tr. 903; 4) the license plate number for the white Hyundai Accent was identified through the surveillance video, tr. 903; 5) the white Hyundai Accent was rented by Jenkins from Enterprise Rent-A-Car, tr . 903; and 6) an arrest warrant was obtained forthe arrest of Jenkins based upon the facts gath ered by the Lakewood police, tr. 908. We find that there existed probable cause to issue and execute an arrest warrant for Jenkins. {¶14} Any argument with regard to defective grand jury proceedings and an invalid

indictment cannot be a ddressed through an App.R. 26(B) app lication for reopening. The record

before this court does not indicate the type of testimony that was presented before the grand jury. It is well settled that matters outside the record do not provide a basis for reopening. State v. Madrigal , 87 Ohio St.3d 378, 721 N.E.2d 52 (2000); State v. Hicks , 8th Dist. Cuyahoga No. 83981, 2005-Ohio-1842. Allegations of ineffectiveness based on facts not appearing in the trial record must be reviewed through postconvicti on remedies and cannot be raised through an App.R. 26(B) application for reopening. State v. Coleman , 85 Ohio St.3d 129, 1999-Ohio-258, 707 N.E.2d 476; State v. Carmon , 8th Dist. Cuyahoga No. 75377, 1999 Ohio App. LEXIS 5458 (Nov. 18, 1999), reopening disallowed , 2005-Ohio-5463. Jenkins has fa iled to establish that he was prejudiced through his second proposed assignment of error.

IV. In-court identi fication of Jenkins {¶15} Jenkins’s fourth proposed assi gnment of error is that: Appellate counsel fa iled to effectively argue th e issue of the impermissible first-time in-court identification of appellant. {¶16} Jenkins, through his fourth proposed assign ment of error, argues that appellate counsel failed to effectively cha llenge on appeal the in-court identif ication of Jenkins by a state’s witness. In addition, Jenkins argues that appella te counsel should have ch allenged the failure of the trial court to provide limiting instructions to the jury with regard to in-court identification. {¶17} The issues raised by Jenkins through his fourth proposed assignments of error have already been addressed on direct appeal. This court held that:In his first assignment of error, Jenkins argues that the court erred when it denied his motion in limine, overruled his objection during trial, and allowed Eanes to identify Jenkins as the shooter during tria l. Specifically, Jenkins argues that Eanes’s in-court iden tification of him as the shooter was impermissibly suggestive and that Eanes’s “limited ab ility to view the shooter,” lack of attention, and description shows that his id entification is unreliable.

* * * Here, while Eanes did not identify Jenkins as the shooter before trial, the record reflects that his in-court identification wa s reliable. Like the witness in Nelson, Eanes testified that he was only a few feet away from the fight between Jenkins and Super. He testified that he got a good look at Jenkins on a number of different occasions that night: when Jenkins walked into Phantasy with Super; later, during the fight with Super; when Jenkins drove away after the fight in a white vehicle; and finally, when Jenkins picked up Super and drove by Phantasy and fired a gun. While Jenkins argues that the time of day made Eanes’s identification of him less reliable, Eanes also testified that the area outside of Phantasy is well lit and that he would “never forget” the shoot er’s face. Further, as to Jenkins’s argument that Eanes had a limited ability to view the shoot er because of Jones’s SUV parked in front of Phantasy, Eanes te stified that he walked back and forth while working security that night, and right before th e shooting occurred, he was standing at the rear of the SUV. Eanes testified that, as a result, he was able to see the driver of the white vehicle as well as the gun that the driver was pointing out of his window toward Phantasy. Finally, like Nelson, Eanes’s testimony was under oath and subject to cross-examination. Based on the foregoing analysis, we find that Eanes had a reliable and independent basis for identifying Jenkins as the shooter. We do not find that Eanes’s in-court identification denied Jenkins his right to a fair trial or that the trial court abused its discretion in admitting that evidence. Accordingly, we overrule Jenkins’s first assignment of error. In his second assignment of error, Jenkins argues that the trial court abused its discretion when it denied his request for the eyewitness identification instruction set forth in Telfaire , 469 F.2d 552 (D.C.Cir.1972).

* * * As a result, we concluded that the court’s instruction “adequately informed the jury of its duty to carefully consid er the credibility of and surrounding circumstances affecting the witness’s identification.” Id . at ¶ 26. Here, the trial court denied Jenkins’s request for a Telfaire instruction. Like the trial court in Witherspoon , however, the trial court in this case gave a general instruction regarding eyewitn ess identification, stating:Concerning eyewitness testimony. Some things you may consider in weighing that testimony are: The capacity of the witness, that is, the age, intelligence, defective se nses, if any, and the opportunity of the witness to observe; the witness’[s] degree of attention at the time he observed the offender; the accuracy of the witness’[s] prior description or identification, if any; whether the witness had occasion to observe the defendant in the past; the interval of time between the event and the iden tification, and all surrounding circumstances under which the witn ess had identifie d the defendant including deficiencies, if any, in lineup, photo display, or one on one. Therefore, despite denying Jenkins’s request for the Telfaire instruction, the court “adequately informed the jury of its duty to carefully consider opportunity of the witness to observe the defendant, the r easonableness of identification, and the credibility of the witness.” Witherspoon , 8th Dist. Cuyahoga No. 94475, 2011-Ohio-704, at ¶ 26. Accordingly, we fi nd that the trial court did not abuse its discretion, and we ove rrule Jenkins’s second assignment of error. Jenkins, supra , ¶ 35-45. {¶18} The doctrine of res judicata bars Jenkins from once again raising the issues of improper in-court identification and limiting instructions to the jury with regard to in-court identification, because the issues were previously adjudicated before this court on direct appeal. O’Nesti v. DeBartolo Realty Corp ., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803. Jenkins has failed to establish any prejudice thr ough his fourth proposed assignment of error. {¶19} Accordingly, the application for reopening is denied.

MARY J. BOYLE, JUDGE TIM McCORMACK, P.J., and MELODY J. STEWART, J., CONCUR