[Cite as State v. Klein,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-12-09

v.

TAMMY M. KLEIN, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 11-CR-0163

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: June 10, 2013

APPEARANCES:

Alison Boggs for Appellant

Terry L. Hord for Appellee Case No. 14-12-09

ROGERS, J.

{¶1} Defendant-Appellant, Tammy Klein, appeals the judgment of the

Union County Court of Common Pleas finding her guilty of complicity to commit

aggravated robbery, complicity to commit theft, complicity to commit kidnapping,

possession of a controlled substance, tampering with evidence, and sentencing her

to an aggregate prison term of 18 years. On appeal, Klein contends that the

following errors occurred throughout the course of the matter: (1) she received

ineffective assistance of counsel; (2) the verdicts on Counts One through Four

were against the manifest weight of the evidence; (3) the State committed

prosecutorial misconduct during closing argument; (4) the trial court erred when it

did not grant her Crim.R. 29 motion for acquittal at the end of the State’s case-in-

chief; and (5) the trial court erred when it imposed consecutive sentences. Based

on the following, we affirm in part and reverse in part the trial court’s judgment.

{¶2} On March 17, 2010, Dave’s Pharmacy, located at 411 West Fifth

Street in Marysville, was robbed by an armed assailant. The assailant, later

identified as Amanda Freed, stole numerous pills containing oxycodone. Freed

was later arrested for an unrelated offense. While in custody for the unrelated

offense, Freed voluntarily confessed that she robbed Dave’s Pharmacy, and that

Klein, her aunt, was involved in the robbery.

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{¶3} In October 2011, the Union County Grand Jury returned a five count

indictment against Klein, charging her as follows: Count One, complicity to

commit aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the

first degree, with a firearm specification under R.C. 2941.145(A) and a forfeiture

specification under R.C. 2941.1417(A); Count Two, complicity to commit theft of

a dangerous drug in violation of R.C. 2913.02(A)(4), (B)(6), a felony of the fourth

degree, with a firearm specification under R.C. 2941.145(A) and a forfeiture

specification under R.C. 2941.1417(A); Count Three, complicity to commit

kidnapping in violation of R.C. 2905.01(A)(2), a felony of the first degree, with a

firearm specification under R.C. 2941.145(A); Count Four, drug possession in

violation of R.C. 2925.11(A), a felony of the second degree, with a forfeiture

specification under R.C. 2941.1417(A); and Count Five, tampering with evidence

in violation of R.C. 2921.12(A)(1), a felony of the third degree, with a forfeiture

specification under R.C. 2941.1417(A).

{¶4} A jury trial was held in this matter on January 11 and 12, 2012. The

following relevant evidence was adduced during the State’s case-in-chief.

{¶5} According to Freed, she and Klein were together at Klein’s residence

on the morning of March 17, 2010. During that time, she and Klein discussed a

mutual debt they owed to her then-boyfriend, Roscoe, for cocaine that he had

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advanced to them. Freed testified that Klein suggested that they rob Dave’s

Pharmacy and use the proceeds to settle their debt with Roscoe.

{¶6} Freed explained that in preparation for the robbery, Klein showed her

an aerial view of Dave’s Pharmacy and described what the pharmacy looked like

inside. Klein also provided her with clothing and a gun to use during the robbery.

However, Freed recalled that she and Klein agreed to “show [the gun] to scare

somebody, but never to use it.” Trial Tr., Vol. I, p. 97. Freed also testified that

she did not have access to a phone on the day of the robbery.

{¶7} On direct examination, Freed testified that she and Klein were the

only individuals involved in the robbery, and that she and Klein left Klein’s

residence to commit the robbery at approximately 5:00 p.m. During cross-

examination, however, Freed testified that Roscoe was also involved in the

robbery.

{¶8} Freed testified that before she and Klein left Klein’s residence to

commit the robbery, she and Klein both did heroin. When asked whether the

heroin impairs her memory, Freed responded that “[s]ome things but not

something this big. Not - - maybe some little details, but I remember most of what

happened that day.” Trial Tr., Vol. I, p. 112. Freed indicated that Klein drove a

maroon Dodge pickup truck during the robbery. Freed recalled that she and Klein

drove to a residential area located behind the pharmacy. With the assistance of an

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aerial photograph of the area surrounding Dave’s Pharmacy, Freed indicated that

Klein parked the truck in front of a residence located at 426 West Sixth Street. On

direct examination, Freed explained that Klein stayed in the truck, which remained

running, while she proceeded from the truck through an alley and across several

yards to Dave’s Pharmacy. On cross-examination, however, Freed testified that

Roscoe was also in the truck and stayed there during the robbery.

{¶9} Karen Smith, who resides at 426 West Sixth Street in Marysville,

testified that on March 17, 2010, she arrived home sometime between 5:00 p.m.

and 6:00 p.m. Smith explained that upon her arrival she noticed a maroon pickup

truck parked along the street in front of her residence. Smith testified that she had

never seen that truck parked in front of her residence before and thought the

circumstances were unusual. Smith recalled that the truck was running and that

there was one individual sitting in the truck’s driver seat. Smith further recalled

that the individual had a small build and that the individual’s hair was tied up in a

barrette. Given her observations, Smith testified that she believed the individual in

the truck was a female. Though Smith conceded that she did not continually

observe the truck, she indicated that the truck was parked in front of her residence

for approximately 10 minutes, and that she never witnessed anyone climb out of or

into the truck.

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{¶10} Turning back to the robbery, Freed testified that upon entering the

pharmacy she feigned interest in some foot cream. Freed explained that she

requested assistance from one of the pharmacy’s employee’s, Crystal Reisinger.

During her interaction with Reisinger, Freed pulled up her shirt to reveal a gun

tucked in her waistband. Upon displaying the gun, Freed demanded that Reisinger

give her all of the pharmacy’s OxyContin. Reisinger complied with her request

and gave her four bottles containing OxyContin. Immediately thereafter, Freed

fled back to the truck, following the same route she took to the pharmacy.

{¶11} Freed testified that as soon as she left the pharmacy she heard sirens.

Freed climbed into Klein’s truck through the back door and got down on the floor

as Klein drove her to Johnstown, Ohio. Freed explained that during the ride Klein

instructed her to dump the pills into a plastic bag. Also during the ride, they

stopped at a gas station where she discarded the clothes used during the robbery,

the gun, and the empty pill bottles into a dumpster. Freed testified that she and

Klein gave most of the OxyContin to Roscoe, and divided the remainder between

themselves.

{¶12} Reisinger’s recollection of the robbery was very similar to Freed’s

description of what occurred. According to Reisinger, the robbery occurred at

approximately 5:30 p.m. Reisinger recalled that Freed was initially interested in

purchasing foot cream. However, during their conversation, Freed pulled her shirt

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up to reveal a gun tucked in her waistband. Reisinger testified that she was scared

and asked Freed what she wanted. Freed responded that she wanted OxyContin.

Accordingly, Reisinger gathered four bottles containing OxyContin and gave them

to Freed.

{¶13} Several hours after the robbery, David Burke, a pharmacist and the

owner of Dave’s Pharmacy, arrived at the pharmacy. Burke testified that by law

he is required to maintain records of all controlled substances in his pharmacy’s

possession. Burke explained that his pharmacy continually updates the record of

all controlled substances, including oxycodone, which he identified as a schedule

two controlled substance. Burke testified that shortly after arriving at the

pharmacy, he took an inventory of the stolen items. Burke indicated that 130 pills

of 10 milligram OxyContin were stolen, and that the bulk amount of 10 milligram

OxyContin equates to 45 pills.1 Next, Burke indicated that 25 pills of 20

milligram OxyContin were stolen, and that the bulk amount of 20 milligram

OxyContin equates to 23 pills. Finally, Burke indicated that 30 pills of 40

milligram OxyContin were stolen, and that the bulk amount of 40 milligram

OxyContin equates to 12 pills.

{¶14} During the Defendant’s case-in-chief, the following relevant

evidence was adduced.

1 This court has observed that “OxyContin is the trade name for Oxycodone Hydrochloride controlled- release pills, an opioid analgesic drug.” State v. Ward, 3d Dist. No. 13-11-17,

.

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{¶15} Throughout her testimony, Klein denied any involvement in the

robbery of Dave’s Pharmacy. Klein testified that she routinely filled her

prescriptions at Dave’s Pharmacy, and that Freed was aware of this fact.

According to Klein, she was being prescribed OxyContin at the time of the

robbery. Klein also admitted that she had done heroin with Freed several times,

but denied doing heroin with Freed on March 17, 2010.

{¶16} Klein, her husband, Timothy Klein (“Timothy Sr.”), and her son,

Timothy Klein II (“Timothy Jr.”), each testified that Freed was not at their

residence on March 17, 2010. Instead, each testified that Klein was at home that

day when she received a phone call in the afternoon from Freed. Klein explained

that Freed asked for a ride from the residence of Roscoe’s sister, which, Freed said

was located on West Sixth Street. Klein testified that Freed was not outside when

she arrived at what Freed purported to be the residence of Roscoe’s sister, so she

parked her maroon Dodge pickup truck along West Sixth Street and waited for

Freed to arrive.

{¶17} Klein testified that she waited in her truck for approximately 15

minutes before Freed arrived. Klein explained that Freed jumped in the back seat

of her truck and got down on the floor. According to Klein, Freed indicated that

she was lying on the floor because she had too much to drink. Klein testified that

immediately after Freed climbed into her truck she heard sirens coming from

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behind her vehicle and that she observed several police vehicles driving down

West Sixth Street towards her truck. As a result, Klein did not immediately drive

off after Freed climbed into her truck, but waited for the police vehicles to pass.

According to Klein, the police vehicles never passed her truck, but instead

proceeded to turn off of West Sixth Street. Upon seeing this, Klein drove off

down West Sixth Street.

{¶18} Klein testified that Freed asked to go to a McDonald’s east of

Columbus, Ohio. Shortly after they left Marysville, Freed asked to stop so she

could dump everything she just used to rob Dave’s Pharmacy. According to

Klein, this was the first time she learned of the robbery. Before they pulled over,

Klein witnessed Freed dump the pills into a plastic bag. Then, Klein pulled over

at a gas station off State Route 33, just south of Marysville, where she witnessed

Freed discard several pill bottles, some clothing, and an airsoft gun into a

dumpster. Thereafter, Klein drove Freed to her requested destination, where

Roscoe had been waiting.

{¶19} When Klein was asked why she did not report Freed to authorities,

the following exchange occurred:

Q: After Miss Freed told you what she had done, why didn’t you just kick her out of your car?

A: Because [State Route] 33 is a lonely place. And she’s got two - - well, at the time, [a] two and a half year old son * * * .

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Q: Speak up a little bit.

A: I didn’t want to see her go to jail and my - - her son get left without a mother.

***

Q: Why didn’t you call the police?

A: [Bec]ause she’s my niece.

Q: Didn’t want to see her get in trouble?

A: No. Trial Tr., Vol. II, p. 67-8.

{¶20} In addition to Klein’s testimony about the events surrounding the

robbery, she and her husband also testified about their airsoft guns. Timothy Sr.

testified that they owned several airsoft guns at the time the robbery occurred, and

that the airsoft guns look nearly identical to a real gun. Klein testified that she

initially assumed Freed took one of the airsoft guns from her residence, but

indicated that none of their airsoft guns were missing.

{¶21} After deliberations, the jury found Klein guilty of all five counts and

their attendant specifications.

{¶22} The matter proceeded to sentencing in February 2012. During

sentencing the trial court determined, based on the parties’ agreement, that Counts

One, Two, and Three were allied offenses of similar import and merged Counts

Two and Three into Count One per the State’s request. The trial court then

proceeded to sentence Klein to an eight-year prison term on Count One, a

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mandatory three-year prison term on the firearm specification, a mandatory five-

year prison term on Count Four, and a 24-month prison term on Count Five. The

trial court further ordered each prison term to be served consecutively to one

another for an aggregate prison term of 18 years. In addition, the trial court

ordered Klein to pay Dave’s Pharmacy $480.00 in restitution, as well as all court

costs, costs of prosecution, and a mandatory fine of $7,500.00.2

{¶23} It is from this judgment Klein filed this timely appeal, presenting the

following assignments of error for our review.

Assignment of Error No. I

DEFENDANT-APPELLANT RECEIVED PREJUDICIALLY INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HER SIXTH AND FOURTEENTH AMENDMENT RIGHTS, AS WELL AS HER RIGHTS UNDER SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION.

Assignment of Error No. II

THE JURY’S VERDICTS ON COUNTS ONE THROUGH FOUR ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.

Assignment of Error No. III

APPELLEE COMMITED (sic) PROSECUTORIAL MISCONDUCT IN ITS CLOSING ARGUMENTS WHEN IT ARGUED ABOUT PERSONAL KNOWLEDGE AND NOT THE FACTS OF THIS CASE.

2 Despite the jury’s determination that the truck was used in the commission of all five offenses, the State elected not to pursue forfeiture and the trial court did not order the truck to be forfeited.

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Assignment of Error No. IV

THE TRAIL (sic) COURT ERRED IN NOT GRANTING APPELLANT’S CRIMINAL RULE 29 MOTION FOR ACQUITAL AT THE END OF THE STATE’S CASE BECAUSE THE CONVICTIONS WERE BASED ON THE UNRELIABLE, UNCORROBORATED TESTIMONY OF THE ACCOMPLICE WITH NO INDEPENDENT EVIDENCE.

Assignment of Error No. V

THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES.

{¶24} Due to the nature of Klein’s assignments of error, we elect to address

her assignments out of order.

Assignment of Error No. IV

{¶25} In her fourth assignment of error, Klein contends that the trial court

erred when it did not grant her motion for acquittal. Specifically, Klein argues that

there was “too much contradictory testimony to main points in the case that the

matter should have never gone to the jury.” Appellant’s Br., p. 18. We find

Klein’s argument’s unavailing.

{¶26} Crim.R. 29(A) provides that a court must order the entry of a

judgment of acquittal of a charged offense “if the evidence is insufficient to

sustain a conviction of such offense[.]” However, “a court shall not order an entry

of judgment of acquittal if the evidence is such that reasonable minds can reach

different conclusions as to whether each material element of a crime has been

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proved beyond a reasonable doubt.” State v. Bridgeman,

(1978), syllabus. Thus, a motion for acquittal tests the sufficiency of the evidence.

State v. Tatum, 3d Dist. No. 13-10-18,

, citing State v. Miley,

(4th Dist. 1996).

{¶27} When an appellate court reviews a record for sufficiency, the

relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. State v. Monroe,

,

, ¶ 47, citing State v. Jenks,

(1991),

superseded by state constitutional amendment on other grounds as stated in State

v. Smith,

(1997). Sufficiency is a test of adequacy, State v.

Thompkins,

(1997), and the question of whether evidence

is sufficient to sustain a verdict is one of law. State v. Robinson,

(1955), superseded by state constitutional amendment on other grounds as stated

in Smith.

{¶28} In order to preserve the issue of sufficiency on appeal, this court has

held that “[w]hen a defendant moves for acquittal at the close of the state’s

evidence and that motion is denied, the defendant ‘waives any error which might

have occurred in overruling the motion by proceeding to introduce evidence in his

or her defense.’ [State v. Brown,

(11th Dist. 1993)]. In

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order to preserve a sufficiency of the evidence challenge on appeal once a

defendant elects to present evidence on his behalf, the defendant must renew his

Crim.R. 29 motion at the close of all the evidence.” State v. Edwards, 3d Dist.

No. 9-03-63,

.

{¶29} The record reveals that Klein made her Crim.R. 29 motion at the

close of the State’s case-in-chief, and that the trial court denied her motion for

acquittal. Thereafter, Klein proceeded to present evidence in her defense. Klein,

however, did not renew her Crim.R. 29 motion at close of her case-in-chief or at

the conclusion of the all the evidence. Thus, according to this court’s precedent,

Klein has waived all but plain error. State v. Flory, 3d Dist. No. 15-04-18, 2005-

Ohio-2251, citing Edwards.

{¶30} However, “[w]hether a sufficiency of the evidence argument is

reviewed under a prejudicial error standard or under a plain error standard is

academic.” Perrysburg v. Miller,

,

(6th Dist.), quoting State v. Brown, 2d Dist. No. 17891 (July 14, 2000).

Regardless of the standard used, “‘a conviction based on legally insufficient

evidence constitutes a denial of due process,’” and constitutes a manifest injustice.

Thompkins,

, citing Tibbs v. Florida,

,

(1982), and Jackson v. Virginia,

,

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(1979). Accordingly, we will proceed to determine whether the State presented

sufficient evidence to support Klein’s convictions.

{¶31} For ease of discussion, we will address the offenses associated with

Counts One, Two, and Three together, as they were found to be allied offenses of

similar import, and then discuss the offenses associated with Counts Four and Five

independently of each other.3

Counts One, Two, & Three

{¶32} With respect to Counts One, Two, and Three, Klein was charged

with complicity to commit aggravated robbery in violation of R.C. 2911.01(A)(1),

complicity to commit theft in violation of R.C. 2913.02(A)(4), and complicity to

commit kidnapping in violation of R.C. 2905.01(A)(2). R.C. 2923.03, Ohio’s

complicity statute, provides, in relevant part:

(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

***

(2) Aid or abet another in committing the offense[.]

Division (A)(1) of R.C. 2911.01, Ohio’s aggravated robbery statute, provides:

(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing 3 As previously mentioned, each count included a forfeiture specification, seeking forfeiture of the vehicle Klein allegedly used during the commission of the charged offenses. While the jury found that the vehicle was used in the commission of each charged offense, the State elected not to pursue forfeiture of the vehicle and the trial court did not order forfeiture. Since the vehicle was not ordered to be forfeited, there is no need for this court to determine whether the State presented sufficient evidence to support the jury’s finding that the vehicle was used in the commission of each charged offense.

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immediately after the attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender’s person or under the offender’s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]

Division (A)(4) and (B)(6) of R.C. 2913.02, Ohio’s theft statute, provides:

(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:

***

(4) By threat[.]

***

(B)(6) If the property stolen is any dangerous drug, a violation of this section is theft of drugs, a felony of the fourth degree, or, if the offender previously has been convicted of a felony drug abuse offense, a felony of the third degree.4

And, finally, division (A)(2) of R.C. 2905.01, Ohio’s kidnapping statute, provides:

(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:

(2) To facilitate the commission of any felony or flight thereafter[.]

Bearing this statutory language in mind, we turn our attention to the evidence

presented at trial.

4 “Dangerous drug,” as used in R.C. 2913.02(B)(6), is defined under R.C. 4729.01(F).

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{¶33} The record reveals that the State presented sufficient evidence to

overcome Klein’s motion for acquittal with respect to Counts One, Two, and

Three. Freed testified that she and Klein planned to rob Dave’s Pharmacy, and

that Klein aided the robbery by providing her with information concerning the

pharmacy’s layout, materials to facilitate the robbery, and transportation to and

from Dave’s Pharmacy. Freed testified that during the robbery she displayed the

butt of a gun tucked in her waistband to a pharmacy employee and demanded

OxyContin, which, as previously mentioned, contains oxycodone. Similarly,

Reisinger testified that the assailant showed her what appeared to be a gun tucked

in her waistband and demanded OxyContin. Reisinger testified that she retrieved

four bottles containing OxyContin and gave them to the assailant, who absconded

with the same. Freed testified that upon receiving the bottles of OxyContin she

fled the pharmacy, located on Fifth Street, and ran to West Sixth Street, where

Klein was waiting in a maroon Dodge pickup truck. Smith, who resided on West

Sixth Street on the day of the robbery, testified that she observed a maroon pickup

truck parked in front of her residence around the time the robbery would have

occurred. Smith testified that the truck was idling and that she observed one

person in the truck, who appeared to be a woman of small stature with her hair tied

up with a barrette. Construing this evidence in a light most favorable to the

prosecution, we find that there was sufficient evidence for a trier of fact to find,

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beyond a reasonable doubt, that the State proved the essential elements of

complicity to commit aggravated robbery, complicity to commit theft, and

complicity to commit kidnapping.

Firearm Specifications for Counts One, Two, & Three

{¶34} With respect to Counts One, Two, and Three, Klein was also charged

with a firearm specification in violation of R.C. 2941.145(A), which provides, in

relevant part:

Imposition of a three-year mandatory prison term upon an offender under division (B)(1)(a) of section 2929.14 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging the offense specifies that the offender had a firearm on or about the offender’s person or under the offender’s control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense.

{¶35} For this specification to apply, the State must present sufficient

evidence that the offender possessed a firearm, which is defined as follows:

“Firearm” means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. “Firearm” includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable. R.C. 2923.11(B)(1).

“When determining whether a firearm is capable of expelling or propelling one or

more projectiles by the action of an explosive or combustible propellant, the trier

of fact may rely upon circumstantial evidence, including, but not limited to, the

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representations and actions of the individual exercising control over the firearm.”

R.C. 2923.11(B)(2).

{¶36} The record reveals that the State presented sufficient evidence to

overcome Klein’s motion for acquittal with respect to the firearm specifications.

Freed repeatedly testified that she used a “gun” during the robbery. E.g., Trial Tr.,

Vol. I, p. 90, 96, 98. While Freed never identified what type of gun it was, she did

testify that she and Klein agreed to “show [the gun] to scare somebody, but never

to use it.” Id. at p. 97. This testimony can reasonably be interpreted to suggest

two things. First, use of the “gun” to scare someone suggests that an individual

would recognize the object as a gun capable of inflicting bodily harm or death.

Indeed, Reisinger testified that she was scared when Freed displayed the gun.

When the State sought to clarify what Reisinger observed in Freed’s waistband,

the following exchange occurred:

Q: When you say she had a gun, what do you mean by a gun?

A: A pistol.

Q: Something that would - - could shoot you?

A: Yes. Id. at p. 134.

Second, the agreement never to use the “gun” can reasonably be interpreted to

suggest operability, as well as a desire to not hurt anyone during the robbery.

Construing this evidence in a light most favorable to the prosecution, we find that

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there was sufficient evidence for a trier of fact to find, beyond a reasonable doubt,

that the State proved that Freed used a firearm while committing the offenses

associated with Counts One, Two, and Three.

{¶37} In so finding, we recognize that there is some dispute as to whether

Freed’s use of the term “gun” throughout her testimony indicates that she

possessed a firearm, pursuant to R.C. 2923.11(B)(1), or whether it was an airsoft

gun.5 Since this dispute involves a weighing of the evidence, we will address this

issue under Klein’s second assignment of error, which asserts that the verdicts on

Counts One through Four were against the manifest weight of the evidence.

Count Four

{¶38} With respect to Count Four, Klein was charged with drug possession

in violation of R.C. 2925.11(A). Specifically, the language of the indictment6

reveals that Klein was charged with violating R.C. 2925.11(A), (C)(1)(c), which

provides:

(A) No person shall knowingly obtain, possess, or use a controlled substance.

***

5 We note that during closing argument the State arguably concedes that Freed used an airsoft gun during the robbery. Trial Tr., Vol. II, p. 109-10. However, this argument is not evidence, and therefore we are precluded from considering it when addressing Klein’s sufficiency and manifest weight assignments of error. State v. Frazier,

(1995). 6 With respect to Count Four, the indictment charged Klein as follows: “[On or about March 17, 2010, Tammy M. Klein,] did knowingly obtain, possess, or use a controlled substance and the drug involved in the violation is a compound, mixture, preparation, or substance included in Schedule I or II, to wit: oxycodone, a Schedule II drug, and the amount of the drug involved equals or exceeds five times the bulk amount but is less than fifty times the bulk amount.” (Docket No. 1, p. 3).

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(C) Whoever violates division (A) of this section is guilty of one of the following:

(1) If the drug involved in the violation is a compound, mixture, preparation, or substance included in schedule I or II, with the exception of marihuana, cocaine, L.S.D., heroin, and hashish, whoever violates division (A) of this section is guilty of aggravated possession of drugs. The penalty for the offense shall be determined as follows:

***

(c) If the amount of the drug involved equals or exceeds five times the bulk amount but is less than fifty times the bulk amount, aggravated possession of drugs is a felony of the second degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree.7

Bearing this statutory language in mind, we turn our attention to the evidence

presented at trial.

{¶39} The record reveals that the State presented sufficient evidence to

overcome Klein’s motion for acquittal with respect to Count Four. Freed testified

that she demanded OxyContin from a pharmacy employee and received four

bottles purportedly containing OxyContin. Similarly, Reisinger testified that she

gave the assailant four bottles of OxyContin.

{¶40} Burke, a pharmacist who owns and operates Dave’s Pharmacy,

testified that the pharmacy is required, by law, to maintain a record of all

controlled substances in its possession, and that record is updated whenever a pill

7 This was the statutory language in effect at the time the offense occurred.

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containing a control substance leaves the pharmacy’s control. Burke testified that

he took an inventory of the pills taken during the robbery on the same day the

robbery occurred. Burke testified that 130 pills of 10 milligram OxyContin, which

contains oxycodone, were stolen during the robbery. Burke testified that the bulk

amount of 10 milligram OxyContin equates to 45 pills of the same. Next, Burke

testified that 25 pills of 20 milligram OxyContin, which contains oxycodone, were

stolen during the robbery. Burke testified that the bulk amount of 20 milligram

OxyContin equates to 23 pills of the same. Finally, Burke testified that 30 pills of

40 milligram OxyContin, which contains oxycodone, were stolen during the

robbery. Burke testified that the bulk amount of 40 milligram OxyContin equates

to 12 pills of the same. Added together, an amount of oxycodone exceeding five

times the bulk amount was stolen during the robbery.

{¶41} In addition, Freed testified that she fled the pharmacy and got into a

truck driven by Klein. Freed testified that Klein instructed her to dump the

OxyContin into a plastic bag. Freed further testified that she gave most of the pills

to Roscoe, but that she and Klein divided the remaining pills among themselves.

Construing this evidence in a light most favorable to the prosecution, we find that

there was sufficient evidence for a trier of fact to find, beyond a reasonable doubt,

that the State proved the essential elements of drug possession.

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Count Five

{¶42} With respect to Count Five, Klein was charged with tampering with

evidence in violation of R.C. 2921.12(A)(1), which provides:

(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:

(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.]

Bearing this statutory language in mind, we turn our attention to the evidence

presented at trial.

{¶43} The record reveals that the State presented sufficient evidence to

overcome Klein’s motion for acquittal with respect to Count Five. Freed testified

that she and Klein discarded the clothes and gun used during the robbery, as well

as the pill bottles, into a gas station dumpster. Though Klein denied taking part in

discarding the items described by Freed, she did testify that she observed Freed

discard clothes, an airsoft gun, and pill bottles into a gas station dumpster. Despite

Klein’s testimony to the contrary, and construing this evidence in a light most

favorable to the prosecution, we find that there was sufficient evidence for a trier

of fact to find, beyond a reasonable doubt, that the State proved the essential

elements of tampering with evidence.

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{¶44} In sum, we find that the State presented sufficient evidence for a trier

of fact to find, beyond a reasonable doubt, that it proved the essential elements of

all the charged offenses and specifications.

{¶45} Accordingly, we overrule Klein’s fourth assignment of error.

Assignment of Error No. II

{¶46} In her second assignment of error, Klein contends that the verdicts on

Counts One through Four were against the manifest weight of the evidence.

Specifically, Klein maintains that Freed’s testimony was replete with

contradictions. In light of these contradictions, Klein asserts that the jury lost its

way when it found Freed’s version of events to be more credible, and

consequently lost its way in finding her guilty on Counts One through Four

because Freed’s testimony was essential in proving the State’s case. In addition,

Klein argues that her finding of guilt with respect to complicity to commit

aggravated robbery was against the manifest weight because the evidence weighed

against a finding that the gun Freed used was a deadly weapon. We find Klein’s

argument’s unavailing.

{¶47} When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder clearly

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lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. Thompkins,

,

superseded by constitutional amendment on other grounds as stated by Smith,

, quoting State v. Martin,

(1st Dist. 1983).

Only in exceptional cases, where the evidence “weighs heavily against the

conviction,” should an appellate court overturn the trial court’s judgment.

{¶48} We agree that Freed’s testimony was essential in establishing Klein’s

guilt. Aside from Freed’s testimony, much of the evidence heard by the jury

corroborated both Klein’s and Freed’s version of events. As such, the State’s case,

in large part, hinged upon Freed’s credibility.

{¶49} In challenging the jury’s determination concerning Freed’s

credibility, Klein focuses on two instances where Freed allegedly offered

contradictory testimony. The first instance occurred with respect to who was

involved in the robbery. On direct examination, Freed testified that only she and

Klein were involved in the robbery. On cross-examination, however, Freed

testified that Roscoe was also present during the robbery, and was waiting in the

truck with Klein. The second instance occurred with respect to who was supposed

to commit the robbery. Klein notes that throughout her testimony Freed

maintained that she and Klein had planned the robbery together. When asked why

she was selected to rob the pharmacy, Freed responded that she had to fill in for

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“somebody else” because “they hurt themselves.” Trial Tr., Vol. I, p. 112. When

questioned further about who was hurt, Freed responded that it was Klein. Klein

maintains that Freed’s failure to initially identify Klein as the hurt individual

contradicts her testimony that the she and Klein had planned the robbery. Klein

reasons that had the robbery been planned Freed would have initially identified

Klein as the hurt individual, and not “somebody else.”

{¶50} Although Freed did, at times, offer contradictory testimony, we

cannot conclude that the jury lost its way when it found Freed to be more credible.

First, we are not convinced that the contradictions highlighted by Klein render

Freed’s testimony incredible. While Freed did offer contradictory testimony

concerning who was involved in the robbery, she always maintained that the Klein

was involved. As for Klein’s assertion that Freed contradicted her testimony that

the robbery was planned, we are not convinced that Freed contradicted herself. At

trial, the following exchange occurred:

Q: Were you ever given a reason why you should be the one to do the robbery, i.e., go into Dave’s Pharmacy?

A: Yes. It was supposed to be somebody else, but they hurt themselves.

Q: So you filled in for somebody else?

A: Yes.

Q: When did it become necessary that you fill in for someone else?

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A: Pretty much at the last minute.

Q: At the last minute, who was it that got hurt?

A: Tammy.

Q: Tammy Klein, your aunt?

A: Yes. Trial Tr., Vol. I, p. 112.

Considering the following exchange, we fail to see how Freed’s responses

contradict her testimony that she planned the robbery with Klein. While we can

speculate, as Klein has done, why Freed did not initially identify Klein, the first

question did not require Freed to identify the hurt individual. When Freed was

finally asked to identify the hurt individual, she responded that it was Klein.

Given the foregoing exchange and the context in which it occurred, we find that

Freed did not offer testimony that contradicted her repeated assertions that she and

Klein planned the robbery.

{¶51} Aside from the portions of Freed’s testimony identified by Klein as

contradictory, much of Freed’s testimony was consistent. Furthermore, as

previously mentioned, large portions of Freed’s testimony were corroborated by

other witnesses, thus bolstering her credibility. Since the jury was in the best

position to weigh witness credibility, State v. Dickinson, 3d Dist. No. 11-08-08,

, citing Seasons Coal Co. v. Cleveland,

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(1984), we cannot conclude that the jury lost its way when it found Freed’s

testimony to be more credible than Klein’s testimony.

{¶52} Further, we cannot conclude that the jury’s finding concerning

Freed’s use of a deadly weapon was against the manifest weight of the evidence.

Klein maintains that the evidence overwhelmingly demonstrates that the gun Freed

used during the robbery was an airsoft gun, and that the same is not a deadly

weapon pursuant to R.C. 2923.11(A). We, however, are not convinced.

{¶53} The only evidence that Freed used an airsoft gun during the robbery

occurred during Klein’s testimony, wherein she testified that immediately

following the robbery she observed Freed discard an airsoft gun into a dumpster.

This is not overwhelming evidence that Freed used an airsoft gun as opposed to a

gun capable of causing death. Instead, the greater weight of the evidence supports

the jury’s finding that the gun Freed used during the robbery was a deadly

weapon. As previously mentioned, Freed consistently referred to the object

tucked in her waistband as a gun, never an airsoft gun. Although Freed did not

describe the gun, her testimony, particularly her agreement with Klein to never use

the gun, can reasonably be viewed to infer that the gun was both operable and

capable of inflicting bodily harm, if not death. Additionally, Reisinger testified

that she became fearful when she observed the gun tucked in Freed’s waistband.

When asked to describe what the gun looked like Reisinger testified that it looked

-28- Case No. 14-12-09

like a “pistol” that could shoot her. Trial Tr., Vol. I, p. 134. When Freed’s and

Reisinger’s testimony is viewed together, it is reasonable to infer that Freed

possessed a gun, or firearm, capable of inflicting death. Consequently, we cannot

conclude that the jury lost its way when it found that Freed used a deadly weapon

during the robbery.

{¶54} Given the foregoing, we find that the jury did not lose its way when

it convicted Klein on Counts One through Four. Freed’s testimony, which the jury

found to be more credible, accounted for much of the evidence necessary to

convict Klein on Count’s One through Four. In particular, Freed’s testimony,

along with Smith’s, Reisinger’s, and Burke’s testimony established that Freed

committed aggravated robbery, theft, kidnapping, and drug possession, and that

Klein was either complicit in or directly committed these offenses. In spite of the

evidence presented in support of Klein’s defense, we are not convinced that the

evidence weighs heavily against Klein’s convictions on Counts One through Four.

Accordingly, we find that the jury’s verdicts on Counts One through Four were not

against the manifest weight of the evidence.

{¶55} Accordingly, we overrule Klein’s second assignment of error.

Assignment of Error No. III

{¶56} In her third assignment of error, Klein contends that prosecutorial

misconduct occurred during the State’s closing argument. Specifically, Klein

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argues that the prosecutor improperly relied on his personal knowledge to suggest

that Klein’s explanation concerning her route from Dave’s Pharmacy to Columbus

was incredible. We find Klein’s argument unavailing.

{¶57} Initially, we note that Klein did not object to the statements she now

alleges to constitute prosecutorial misconduct. Consequently, Klein has waived all

but plain error. State v. White,

(1998), citing State v. Slagle,

(1992).

{¶58} In order to have plain error under Crim.R. 52(B), there must be an

error, the error must be an “obvious” defect in the trial proceedings, and the error

must have affected “substantial rights.” State v. Barnes,

(2002). Plain error is to be used “with the utmost caution, under exceptional

circumstances, and only to prevent a manifest miscarriage of justice.”

Accordingly, plain error exists only in the event that it can be said that “but for the

error, the outcome of the trial would clearly have been otherwise.” State v. Biros,

(1997).

{¶59} In closing arguments, prosecutors are entitled to some latitude

regarding what the evidence has shown and the inferences that can be drawn.

State v. Ballew,

(1996). “‘It is improper for an attorney to

express his or her personal belief or opinion as to the credibility of a witness or as

to the guilt of the accused.’” State v. Van Meter,

(3d

-30- Case No. 14-12-09

Dist. 1998), quoting State v. Williams,

(1997). However, “[a]

prosecutor may state his opinion if it is based on the evidence presented at trial.”

State v. Watson,

(1997) abrogated on other grounds by State v.

McGuire,

(1997).

{¶60} The test for prosecutorial misconduct during closing argument is

whether the remarks made by the prosecutor were improper and, if so, whether

they prejudicially affected a substantial right of the accused. State v. Siefer, 3d

Dist. No. 5-09-24,

, citing White,

. We

evaluate the allegedly improper statements in the context of the entire trial. State

v. Treesh,

(2001), citing State v. Keenan,

(1993). An improper comment does not affect a substantial right of the

accused if it is clear beyond a reasonable doubt that the jury would have found the

defendant guilty even without the improper comments.

citing State v. Smith,

, (1984).

{¶61} During its closing argument, the prosecutor addressed Klein’s route

out of Marysville, stating the following:

And then what did she do? And this is her testimony, Tammy M. Klein. She went to the end of Sixth to Grove Street. She turned right and she went out onto Fifth. Now, I can tell you, you know. You live in this town. It’s going towards Krogers, but you can turn right and come back on Fifth, angle off onto Fourth, and then back on Maple which is quicker when you’re going where? You’re going east. You’re going to Columbus. We didn’t go that way. We went further west. What did we do? We drove further away from the area

-31- Case No. 14-12-09

that the crime was committed in. Fleeing the area. You will have an instruction on that. In your jury instructions, it talks about conduct of leaving the scene, leaving the area. She was the driver. Okay. I think the excuse I got was it was rush hour traffic. Excuse me. I’ve lived in the city. I know what rush hour traffic is. Don’t give me - - you know what goes on in this town. Is it going to slow you down that much? And realistically, I go down Maple every day. Come out, jump onto what I consider to be 31, and I go home. I know how long it takes me to go that way. If it was better for me, what? I would go clear out past Krogers? It isn’t going to happen cause I’m going north. But north is further east than going west to where she went. So think about the conduct of this defendant under those circumstances. Trial Tr., Vol. II, p. 117-18.

{¶62} Klein argues that the prosecutor’s statement concerning his

knowledge of rush hour traffic in Marysville was improper. We agree. The record

contains no evidence which would permit the prosecutor to comment on his

personal knowledge of rush hour traffic in Marysville. Despite the impropriety of

the prosecutor’s statement, we “must consider the effect of the conduct on the jury

in the context of the entire trial and determine if the remarks actually prejudiced

the substantial rights of the defendant.” State v. Rollison, 3d Dist. No. 9-09-51,

; White,

.

{¶63} The improper statement concerning rush hour traffic in Marysville

was not the only means by which the prosecutor attempted to challenge the

veracity of Klein’s explanation concerning her route from Dave’s Pharmacy to

Columbus. Before improperly discussing rush hour traffic in Marysville, the

prosecutor addressed the details of Klein’s route away from Dave’s Pharmacy.

-32- Case No. 14-12-09

This segment of the prosecutor’s closing argument was based on evidence

presented at trial, particularly Klein’s own testimony. When viewing this segment

in its entirety, we find that it, like the prosecutor’s improper statement concerning

rush hour traffic, challenges the veracity of Klein’s explanation concerning her

route from Dave’s Pharmacy to Columbus. In particular, it highlights Klein’s

choice to proceed west from Dave’s Pharmacy, when her intended destination,

Columbus, required her to drive southeast. Hence, the prosecutor did

appropriately challenge the veracity of Klein’s explanation concerning her route

from Dave’s Pharmacy to Columbus.

{¶64} In light of the foregoing, and the cursory nature of the improper

statement, we find, beyond a reasonable doubt, that the jury would have found

Klein guilty even without the improper statement.

{¶65} Accordingly, we overrule Klein’s third assignment of error.

Assignment of Error No. I

{¶66} In her first assignment of error, Klein contends that she received

ineffective assistance of counsel. Specifically, Klein argues that trial counsel was

ineffective in two respects. First, trial counsel was ineffective because he did not

attempt to suppress or otherwise object to the introduction of her interview with

law enforcement. Second, trial counsel was ineffective because he did not take

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reasonable measures to secure her or Freed’s phone records from the day of the

robbery. We find Klein’s argument’s unavailing.

{¶67} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley,

(1989), paragraph two of syllabus. To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.

at paragraph three of syllabus. “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial. State v. Waddy,

(1992), superseded by

constitutional amendment on other grounds as recognized by Smith,

.

{¶68} Furthermore, the court must look to the totality of the circumstances

and not isolated instances of an allegedly deficient performance. State v. Malone,

2d Dist. No. 10564 (Dec. 13, 1989). “Ineffective assistance does not exist merely

because counsel failed ‘to recognize the factual or legal basis for a claim, or failed

to raise the claim despite recognizing it.’”

quoting Smith v. Murray,

,

(1986).

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Klein’s Videotaped Interview with Law Enforcement

{¶69} First, Klein contends that trial counsel was ineffective because he

made no attempt to prohibit the introduction of her videotaped interview with

Detective McGlenn, or redact those portions of the video which were prejudicial

to her case. Klein asserts that the video was rife with prejudicial information.

Specifically, Klein cites to those portions of the video where she discussed her

prior drug use, where Detective McGlenn stated that she has been under

surveillance in the past, and where Detective McGlenn offered his opinion that she

knew about the robbery before it occurred. Though we agree with certain aspects

of Klein’s argument, we ultimately find her claim of ineffective assistance

unavailing.

{¶70} During the defense’s case-in-chief, Klein testified that she was

interviewed by Detective McGlenn in September 2011, and that her testimony was

consistent with the information she provided Detective McGlenn during the

interview. On cross-examination, the State introduced the video of Klein’s

interview with Detective McGlenn. The State represented that it sought to

introduce the video to demonstrate what it perceived to be inconsistencies between

the information Klein provided Detective McGlenn and her testimony at trial.

Klein’s trial counsel stated that he had no objection to the video, and the same was

played for the jury.

-35- Case No. 14-12-09

{¶71} The interview lasted approximately 30 minutes. Much of the

interview focused on the robbery, the events surrounding the robbery, and Klein’s

version of events. However, interspersed throughout the interview were several

cursory discussions about Klein’s prior drug abuse. Also, as Klein indicates, there

was one instance where Detective McGlenn stated that Klein had been under

surveillance in the past, and one instance where Detective McGlenn offered his

opinion that Klein knew about the robbery before it occurred.

{¶72} After the video was played for the jury, the trial court immediately

administered the following limiting instruction to the jury.

Ladies and gentlemen, before we go any further, the Court has a commentary that I need you to observe with regard - - an instruction that I need you to observe with regard to the videotape that you just watched. The videotape that you just watched included the defendant’s admission and Detective McGlenn’s discussion in addition to the admission of other acts committed by the defendant. Other acts, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action and conformity therewith. So you can’t use these other acts that she’s talked about. And you can’t consider those other acts when you’re determining whether or not she’s guilty or not guilty of the crimes that she’s charged with when you go into your deliberations. This is called - - what this is called that I’m giving you is a limiting instruction so that you’ve got this in your mind. The other acts may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. But they’re not admissible to prove the character of the defendant in this case in order to show action and conformity therewith. In other words, you can’t say because she was using heroin or because she said that she sold pills in the past, that therefore she did the acts there (sic) are in question. Everybody understand that? So you can’t consider the other acts that were

-36- Case No. 14-12-09

talked about for that purpose. You have to - - you have to look at the evidence that was brought before the Court in this case alone as to whether - - and decide whether or not she’s guilty or not guilty of the acts that were committed, or that acts there (sic) are alleged, I’m sorry, that she committed. So these other acts things, highly prejudicial in terms of being in your mind. Well, she used heroin so she must have done this. You can’t make that conclusion. You can’t make that jump. Do you all understand that? Thank you. Trial Tr., Vol. II, p. 74-76.

{¶73} Generally, a claim for ineffective assistance of counsel will not

succeed if the evidence at issue is admissible. See State v. May, 3d Dist. No. 8-11-

19,

, (finding no ineffective assistance of counsel where the

trial counsel did not object to admissible evidence); see also State v. Dubose, 7th

Dist. No. 00-C.A.-60,

, ¶ 12-13 (same). Here, a majority of the

video was admissible, since it contained information relevant to the charged

offenses, and demonstrated, as the State represented, inconsistencies between the

information Klein provided Detective McGlenn and her testimony at trial.

Accordingly, we find that trial counsel was not ineffective when he failed to object

to the entire video being admitted into evidence.

{¶74} Trial counsel’s performance presents a closer call with respect to

Klein’s argument that he should have made some effort to redact those portions of

the video which she claims were prejudicial. Contrary to Klein’s assertions on

appeal, we find that trial counsel’s performance did not fall below objective

standards of reasonable representation when he failed to object to those portions of

-37- Case No. 14-12-09

the video wherein Klein discussed her prior drug abuse and Detective McGlenn

stated his opinion that she knew about the robbery before it occurred. As for

Klein’s discussion of her prior drug abuse, evidence of the same was introduced

during Freed’s and Klein’s testimony. As such, we cannot conclude that trial

counsel was ineffective when he made no attempt to redact those portions of the

video in which Klein discussed her prior drug abuse. Similarly, we cannot

conclude that trial counsel was ineffective when he made no attempt to redact

Detective McGlenn’s opinion. Though it may have been prudent to redact that

portion of the video, Detective McGlenn clearly stated that the opinion was his

alone and that he could be wrong. Given these qualifying remarks and the overall

context of the interview, we are not convinced that trial counsel’s failure to redact

that portion fell below objective standards of reasonable representation.

{¶75} As for Detective McGlenn’s statement that Klein had been under

surveillance in the past, we agree that trial counsel should have attempted to redact

that portion and that failure to do so fell below objective standards of reasonable

representation. Detective McGlenn’s statement concerning his surveillance of

Klein had no relevance to the charged offenses and was prejudicial, as it suggested

that Klein has long had a propensity to commit crimes or associate with others

who commit crimes.

-38- Case No. 14-12-09

{¶76} Despite the foregoing, and considering the totality of the

circumstances, we are not convinced that, but for trial counsel’s error, the outcome

at trial would have been different. The trial court gave a detailed limiting

instruction immediately after the video was played, which we must presume the

jury followed. Pang v. Minch,

(1990). We find that the

limiting instruction sufficiently mitigated any probability that Klein was

prejudiced by the playing and subsequent introduction of the entire video of her

interview with Detective McGlenn.

{¶77} Klein cites to State v. Main, 5th Dist. No. 9562 (Aug. 22, 1994), in

support of her contention that trial counsel was ineffective when he did not

attempt to suppress or otherwise object to the introduction of her interview with

Detective McGlenn. However, a review of Main reveals that it is inapposite to

this matter. In Main, the defendant challenged the admission of his tape recorded

interview with law enforcement. The reviewing court described the interview as

follows:

The tape is not a statement by Appellant per se, but rather is a dialogue between officers and Appellant in which the officers accuse Appellant of lying to them, of striking Kimberly George, and otherwise advance various investigative theories of their own. The tape also contains a certain amount of discussion regarding whether or not Appellant will take a polygraph test to convince the officers of his innocence. (Emphasis sic.)

-39- Case No. 14-12-09

Upon comparison, we find that the tape recorded interview in Main and Klein’s

interview are manifestly different. Unlike the interview in Main, much of Klein’s

interview focused on her version of events surrounding the robbery. At no point

during Klein’s interview did it appear that Detective McGlenn was employing the

brash and manipulative tactics that appeared to be pervasive throughout the

interview in Main. Given these manifest differences, we decline to follow Main in

this case.

{¶78} Klein also relies on State v. Bankston, 2d Dist. No. 24192, 2011-

Ohio-6486. However, a review of Bankston reveals that it too is inapposite to this

matter. In Bankston, the defendant, who was charged with domestic violence,

challenged the admission of two conversations that were recorded while he was in

jail awaiting trial. The reviewing court determined that it was error for both

recorded conversations to be played in their entirety during trial. In so finding, the

court stated that only a brief portion of each conversation was necessary to

demonstrate the inconsistencies the state alleged to exist, and that the remaining

content was either irrelevant or prejudicial. The court also noted that more of the

conversations could have been played for the jury if it was needed for “context or

completeness,” but concluded that such a need was not present under the

circumstances of the matter. Bankston at ¶ 13. Unlike the conversations in

Bankston, much of Klein’s interview was not filled with prejudicial or irrelevant

-40- Case No. 14-12-09

information, but rather information that was otherwise admissible. While playing

Klein’s interview in its entirety was in some respects cumulative, it was acceptable

since it gave context to Klein’s inconsistent statements which were scattered

throughout the video. Given these manifest differences, we decline to follow

Bankston in this case.

{¶79} In sum, we find that trial counsel was not ineffective when he did not

attempt to suppress or otherwise object to the introduction of her interview with

Detective McGlenn.

Phone Records

{¶80} Next, Klein contends that trial counsel was ineffective when he failed

to obtain either her or Freed’s phone records from the day of the robbery. Klein

argues that the phone records were essential to proving her case, as they would

have corroborated her version of events and impeached Freed’s testimony that she

did not have a phone on her person at the time of the robbery. We find Klein’s

argument unavailing.

{¶81} During trial, Detective McGlenn was questioned about the phone

records, resulting in the following exchange:

Q: After you interviewed Miss Klein and she indicated that she had received this phone call, did you happen to look at her phone records or Miss Freed’s phone records to see if that actually occurred?

-41- Case No. 14-12-09

A: This - - this information came about 18 months after the fact and when we attempted to get the phone records, there was an issue with the time of being able to get those records.

Q: So you weren’t able to look - -

A: I was not able to obtain those records. Trial Tr., Vol. II, p. 20.

Similarly, Timothy Sr. testified that, at the behest of trial counsel, he attempted to

secure the phone records a couple of weeks before trial, but explained that “[he]

couldn’t.” Id. at p. 56.

{¶82} As the record stands, we cannot conclude that trial counsel was

ineffective. According to Detective McGlenn, he attempted, but was unable, to

obtain the phone records during his investigation in September 2011. Likewise,

Timothy Sr. was unable to obtain the phone records. In light of this evidence, we

can only conclude that the phone records were unavailable, and consequently any

effort by trial counsel to obtain the phone records would have been unsuccessful.

Accordingly, we cannot conclude that trial counsel was ineffective when he failed

to obtain the phone records from the day of the robbery.

{¶83} In sum, we find that trial counsel was not ineffective when he failed

to challenge the introduction of the video depicting Klein’s interview with

Detective McGlenn, or when he failed to obtain Klein’s or Freed’s phone records

from the day of the robbery.

{¶84} Accordingly, we overrule Klein’s first assignment of error.

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Assignment of Error No. V

{¶85} In her fifth assignment of error, Klein contends that the trial court

erred when it sentenced her to consecutive sentences. We find Klein’s argument

unavailing.

{¶86} A reviewing court must conduct a meaningful review of the trial

court’s imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

Ohio-5774, ¶ 8. Such review allows the court to “modify or vacate the sentence

and remand the matter to the trial court for re-sentencing if the court clearly and

convincingly finds that the record does not support the sentence or that the

sentence is otherwise contrary to law.” Id. Clear and convincing evidence is that

“which will produce in the mind of the trier of facts a firm belief or conviction as

to the facts sought to be established.” Cross v. Ledford,

(1954),

paragraph three of the syllabus. An appellate court should not, however, substitute

its judgment for that of the trial court because the trial court is “‘clearly in the

better position to judge the defendant’s likelihood of recidivism and to ascertain

the effect of the crimes on the victims.’” State v. Watkins, 3d Dist. No. 2-04-08,

.

{¶87} Where consecutive sentences are not mandated by statute, the trial

court must consider R.C. 2929.14(C)(4) before it can order sentences to be served

consecutively. R.C. 2929.14(C)(4) provides:

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(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

While the trial court is required to make specific findings before imposing

consecutive sentences pursuant to R.C. 2929.14(C)(4), State v. Hites, 3d Dist. No.

6-11-07,

, it is not required to give its reasons for imposing

consecutive sentences. State v. McKenzie, 3d Dist. No. 15-12-07, 2012-Ohio-

6117, ¶ 10, citing State v. Frasca, 11th Dist. No. 2011-T-0108,

, ¶

57.

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{¶88} Upon review, we find that the trial court made the requisite findings

under R.C. 2929.14(C)(4). At the sentencing hearing, the trial court stated that it

considered, among other things, “the record, the oral statements, [and] the

presentence investigation * * * [.]” Sentencing Hearing Tr., p. 21. Thereafter, the

court stated the following regarding the imposition of consecutive sentences.

The Court further finds that consecutive sentences are necessary to protect the public from future crime and to punish the defendant. And further, that consecutive sentences are not just disproportionate to the seriousness of the defendant’s conduct and to the danger that the defendant poses to the public. The Court further finds at least two of the multiple offenses that were committed, were committed as part of one or more causes - - courses of conduct. And that the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of your conduct.

The same findings were included in the trial court’s judgment entry of sentencing.

Given the trial court’s consideration of the record, oral statements, presentence

investigation, its findings under R.C. 2929.14(C)(4), and our independent review

of the record, we find that the trial court’s imposition of consecutive sentences was

not clearly and convincing unsupported by the record or contrary to law.

{¶89} Accordingly, we overrule Klein’s fifth assignment of error.

{¶90} In addition to Klein’s assignments of error, we, sua sponte, address

plain error with respect to the verdict form for Count Two, complicity to commit

theft. Since Klein did not object to the verdict form for Count Two, she has

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forfeited all but plain error. State v. Eafford,

, 2012-Ohio-

2224, ¶ 11.

{¶91} R.C. 2945.75 provides, in relevant part:

(A) When the presence of one or more additional elements makes an offense one of more serious degree:

***

(2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.

{¶92} In its first decision addressing the effect of not complying with R.C.

2945.75(A)(2), the Ohio Supreme Court held that “that pursuant to the clear

language of R.C. 2945.75, a verdict form signed by a jury must include either the

degree of the offense of which the defendant is convicted or a statement that an

aggravating element has been found to justify convicting a defendant of a greater

degree of a criminal offense.” State v. Pelfrey,

, 2007-Ohio-

256, ¶ 14. The court reasoned that “[t]he express requirement of [R.C. 2945.75]

cannot be fulfilled by demonstrating additional circumstances, such as that the

verdict incorporates the language of the indictment, or by presenting evidence to

show the presence of the aggravated element at trial or the incorporation of the

indictment into the verdict form, or by showing that the defendant failed to raise

the issue of the inadequacy of the verdict form.”

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{¶93} In a more recent decision, the court, faced with a similar issue,

appeared to change its position on the effect of not complying with R.C.

2945.75(A)(2). Eafford,

,

. Applying a plain

error standard of review, the majority, looking at the totality of the record, in

particular the indictment, the evidence presented at trial, and the jury instructions

determined that the failure to include either the degree of the offense or a finding

concerning the aggravating element in the verdict form did not constitute plain

error. Id. at ¶ 18. The majority reasoned that even if the trial court complied with

R.C. 2945.75(A)(2) the outcome of the trial would not have been different. Id.

{¶94} Although the court’s decisions in Pelfrey and Eafford apparently

contradict each other, the Eafford Court did not expressly overrule Pelfrey. As

such, this court has recently determined that “in light of Eafford’s silence and our

strict interpretation of R.C. 2945.75(A)(2) as required by R.C. 2901.04(A) and

Pelfrey, we find that Pelfrey controls” in cases where the verdict form is

insufficient under R.C. 2945.75(A)(2). State v. Gregory, 3d Dist. No. 16-12-02,

.

{¶95} As previously mentioned, Klein was charged with complicity to

commit theft of a dangerous drug in violation of R.C. 2913.02(A)(4), (B)(6), a

felony of the fourth degree. For a theft offense to constitute a fourth degree felony

under R.C. 2913.02(B)(6), the jury must make an additional finding that “the

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property stolen is any dangerous drug[.]” Without this finding, the defendant’s

theft offense constitutes a first degree misdemeanor.8 R.C. 2913.02(B)(2).

{¶96} While the trial court properly instructed the jury that it had to find

that the stolen property was a dangerous drug in order to convict Klein of a fourth

degree felony theft offense, this fact, under Pelfrey, does not excuse the failure to

comply with R.C. 2945.75(A)(2). Pelfrey,

,

,

at ¶ 14. The verdict form here reads:

We, the jury, being duly impaneled and sworn, find the Defendant, Tammy M. Klein guilty of the charge of Theft in violation of Ohio Revised Code Section 2913.02(A)(4). (Docket No. 47).

Clearly, the verdict form does not include either the degree of the offense (i.e., a

fourth degree felony) or the aggravating element (i.e., that the property stolen was

a dangerous drug), as required by R.C. 2945.75(A)(2). Under Pelfrey, the verdict

form is insufficient to convict Klein of a fourth degree felony, and we

consequently find the failure to comply with R.C. 2945.75(A)(2) results in plain

error. See Gregory,

(finding plain error where verdict form

did not contain degree of offense or a finding concerning the aggravating

element).

{¶97} Having found no error prejudicial to Klein, in the particulars

assigned and argued, but having found plain error with respect to the verdict form

8 Based on the evidence at trial, the value of the stolen OxyContin was $480.00. Accordingly, at the time the offense occurred, Klein would have been guilty of petty theft, a misdemeanor of the first degree. R.C. 2913.02(B)(2).

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for Count Two, we affirm in part, and reverse in part, and remand the matter for

the trial court to enter a judgment convicting Klein of complicity to commit theft

as a first degree misdemeanor, pursuant to R.C. 2913.02(A)(4), (B)(2).

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr

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