[Cite as State v. Inman,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 12CA16 vs. : DECISION AND WILLIAM A. INMAN, II, : JUDGMENT ENTRY

Defendant-Appellant. : RELEASED 07/23/2013

APPEARANCES:

David J. Winkelmann, Athens, Ohio, for Appellant.

Michael DeWine, Attorney General of Ohio, and Paul Scarsella, Special Hocking County Prosecutor, Columbus, Ohio, for Appellee.

Hoover, J.

{¶ 1} A jury found the appellant, William Inman, II, guilty of two counts of Aggravated

Murder; Kidnapping; Tampering with Evidence; and the Gross Abuse of a Corpse in relation to

the disappearance and murder of his wife, Summer Inman. The Hocking County Common Pleas

Court denied appellant’s subsequent motion for a new trial. In this case, appellant contends that

the trial court erred when it denied his motion for a mistrial based on the State’s purported failure

to disclose a witness statement prior to the start of trial. Next, appellant contends that the trial

court erred in its denial of his motion for a new trial. Specifically, appellant argues that the

State’s failure to disclose a prior felony conviction of one of its witnesses hindered his ability to

impeach the credibility of the witness and violated his rights to a fair trial. Finally, appellant

contends that the cumulative effect of the alleged errors merit reversal of his conviction in the Hocking App. No. 12CA16 2

instant case. For the following reasons, appellant’s three assignments of error are overruled.

The judgment of the trial court is affirmed.

I

STATEMENT OF THE CASE

{¶ 2} Appellant was indicted by a Hocking County Grand Jury with the following counts

in relation to the murder of his wife: two counts of Aggravated Murder in violation of R.C.

2903.01(A) and (B) with specifications under R.C. 2941.14; Murder in violation of R.C.

2903.02(A); Kidnapping in violation of R.C. 2905.01(A)(3); Tampering with Evidence in

violation of R.C. 2921.12(A)(1); and Gross Abuse of a Corpse in violation of R.C. 2927.01.

After a lengthy jury trial in May and June of 2012, appellant was convicted of the two

Aggravated Murder counts; the Kidnapping charge; the Tampering with Evidence charge; and

the Gross Abuse of a Corpse charge. The Murder charge was subsequently dismissed by

judgment entry of the trial court. Appellant was sentenced to life in prison with no possibility of

parole on the Aggravated Murder convictions; the life sentence was ordered to run consecutively

with the sentences for the convictions of Kidnapping, Tampering with Evidence, and Gross

Abuse of a Corpse.

{¶ 3} Following the guilty verdicts, appellant filed a timely motion for a new trial

pursuant to Crim.R. 33(A)(1) and (2), together with an affidavit of counsel alleging that the State

had failed to disclose the prior felony conviction of John Anthony Matheny whose testimony

placed appellant in Logan, Ohio, on the night of the victim’s disappearance. The trial court

denied the motion. This appeal followed.

{¶ 4} Appellant raises three assignments of error for review. Hocking App. No. 12CA16 3

First Assignment of Error:

The Trial Court Erred in Failing to Grant a Mistrial Due to the Surprise Testimony of John Anthony Methany Identifying William Inman II as a Person he Saw in Logan, Ohio on March 22, 201[1]. Second Assignment of Error:

The Trial Court Erred When it Declined to Grant William Inman II a New Trial Based on the Prosecutor’s Misconduct in Failing to Disclose the Prior Felony Conviction of the State’s Sole Identification Witness. Third Assignment of Error: The Trial Court’s Failure to Grant the Defense Motion for Mistrial or to Grant a New Trial Based on the Prosecution’s Failure to Inform Counsel of Matheny’s Identification Testimony and Prior Conviction Constitutes Cumulative Error. II

FACTS

{¶ 5} A review of the record reveals the following facts that are pertinent to this

appeal.1 On the evening of March 22, 2011, Summer Inman was kidnapped from her place of

employment in Logan, Ohio. After a weeklong search, Summer was found dead, stuffed in the

septic system behind the Faith Tabernacle Church in Athens County, Ohio. Industrial zip ties

had been fastened around her wrists and neck. The official cause of death was ligature

strangulation.

{¶ 6} On March 23, 2011, numerous law enforcement officers questioned the appellant.

Appellant indicated to law enforcement that he and his parents had been house hunting in

Cleveland, Ohio, on March 22, 2011. He acknowledged that they had been driving a white

1 The following statement of facts highlights the evidence that is material to the instant appeal. It does not document all the evidence that was offered at trial. Hocking App. No. 12CA16 4

Crown Victoria, which his father had purchased on either March 18 or 19, 2011.2 Appellant also

indicated that the vehicle had broken down along an interstate in the Cleveland area, and that he

and his parents had spent the night in the vehicle.

{¶ 7} At appellant’s trial, several individuals testified to having witnessed either the

kidnapping, or the vehicle, which was allegedly used in the kidnapping and murder.

{¶ 8} Kylee Helman who had been jogging in Logan, Ohio, on the night of March 22,

2011, testified that she heard screams coming from the alley near the bank where the victim had

been working. She immediately ran to the area and saw two men use a taser on an unidentified

female and then she saw the men place the female into a vehicle. She testified that the vehicle

looked like an old, white police cruiser; and that the vehicle had no visible license plates.

{¶ 9} Emily Hedges who had accompanied Helman on the evening jog, also testified at

trial. Hedges testified that she witnessed two men surrounding a female in the alley near the

bank. Hedges said that the men appeared to be wearing ski masks. She could hear a taser, and

she also heard the voice of a woman coming from the driver’s side of the vehicle. Hedges

described the vehicle as a white, undercover police cruiser. Hedges said the vehicle had tinted

windows, a spotlight, and no visible license plates.

{¶ 10} Linda Harris testified that she was driving in the downtown Logan area on the

night of the incident when she heard screams and yelling. As she was driving, she saw a vehicle

and two people arguing near the bank parking lot. She described the car as white, similar in

appearance to an old police vehicle--possibly a Crown Victoria.

2 Evidence presented at trial, including the vehicle’s title, indicate that the vehicle had previously been a police cruiser. Hocking App. No. 12CA16 5

{¶ 11} Richard Leake had been walking in the area of the bank on the night of March 22,

2011. He testified that he heard a woman screaming from the bank alley. Leake walked in the

direction of the screams and saw a white vehicle with a spotlight that looked like a police car.

He also witnessed two men restraining a woman, and also saw the men use a taser on the woman.

As he got closer to the disturbance, he witnessed a middle-aged female driver with blonde hair

inside the vehicle. Leake was pepper-sprayed by one or both of the men, causing him to flee the

scene. Leake believed the men were wearing ski masks.

{¶ 12} Two other witnesses for the appellee testified that they saw a white vehicle,

described as an old police cruiser, parked at the Faith Tabernacle Church in the late evening and

early morning hours of March 22 and March 23, 2011. One of the witnesses, Chrystal Farris,

testified that she saw two men standing to the rear of the vehicle which had both back passenger

doors open. Farris also saw a petite, light-haired woman in the front driver’s seat of the parked

vehicle.

{¶ 13} During the course of the investigation, law enforcement was able to obtain cell

phone records and a GPS unit belonging or connected to the appellant. Robert Moledor of the

Columbus Police Department and a member of the FBI Violent Crimes Task Force analyzed the

cell phone records. Moledor testified that appellant’s cell phone connected to cell phone

antennas located in Logan, Ohio, on the night of March 22, 2011. Moledor was able to track the

phone’s activity from March 22 through March 23, 2011 and determined that the phone traveled

from Mansfield, Ohio, to Logan, Ohio, and then back to northeast Ohio during that time period.

{¶ 14} FBI Special Agent Michael Daugherty testified that he analyzed data taken from

the seized GPS unit. Daugherty was able to map a path that the GPS unit had traveled on March Hocking App. No. 12CA16 6

22 and March 23, 2011. Specifically, Daugherty testified that the GPS unit moved from

Mansfield, Ohio, on March 22, 2011, at approximately 2:20 p.m. and arrived in Logan, Ohio, at

5:43 p.m. At 8:06 p.m. the GPS unit was turned off or lost power at the Wal-Mart store in

Logan. The GPS unit regained power at 11:45 p.m. in Nelsonville, Ohio.3 In the early morning

hours of March 23, 2011, the GPS unit made a return trip to northeast Ohio, making several stops

along the way.

{¶ 15} John Anthony Methany also testified at trial on the state’s behalf. Methany’s

parents are the next-door neighbors of the victim’s parents.4 On March 24, 2011, Matheny gave

a voluntary, signed statement to the police. The statement, which was provided to appellant

during pretrial discovery, indicated that on March 22, 2011, approximately four hours prior to

the kidnapping, Matheny had seen a white Crown Victoria, appearing to be an old police cruiser,

in Logan, Ohio. Matheny’s statement also indicated that a blonde-haired woman was driving the

vehicle, and two male passengers were also inside. The statement did not specifically identify

the appellant as one of the passengers.

{¶ 16} In the weeks leading up to the trial, the appellee met with Matheny for witness

preparation. At that time, Matheny indicated that he could identify the appellant as one of the

male passengers of the white Crown Victoria. At trial, Matheny testified that in the fall of 2010

he had witnessed the victim and appellant engage in a heated discussion at the victim’s parent’s

house. He further testified that one of the men he saw in the vehicle on March 22, 2011, was the

appellant.

3 The Faith Tabernacle Church is located off of U.S. Route 33 near Nelsonville. 4 At the time of her kidnapping and murder, the victim and appellant had been separated for several months; and the victim had been living at her parent’s home in Logan, Ohio. Hocking App. No. 12CA16 7

{¶ 17} Following the direct examination of Methany, defense counsel moved for a

mistrial. The defense argued that the State had committed a Crim.R. 16 violation by failing to

disclose that Methany could identify the defendant.

{¶ 18} In response, the State argued that it had complied with Crim.R. 16 by disclosing

Methany’s police statement. The State acknowledged that they learned that Methany could

identify the appellant during the course of trial preparation; and thus, they were not required to

disclose the identification to the defense.

{¶ 19} The trial court denied the motion for the mistrial, but granted appellant a short

continuance to prepare for cross-examination. On cross-examination, defense counsel

confronted Matheny with the police statement in which he did not identify appellant. Methany

testified that when he saw appellant’s photograph in media reports he was able to identify

appellant as the man he saw in the fall of 2010 and on March 22, 2011. Methany confirmed that

he first informed prosecution that he could identify appellant as the man in the vehicle during

trial preparation in April of 2012.

{¶ 20} At the conclusion of Matheny’s testimony, the appellant renewed his motion for a

mistrial, and argued in the alternative that the testimony should be stricken. The trial court again

denied the motion for mistrial, and also denied the motion to strike Matheny’s testimony.

{¶ 21} Following trial, appellant filed a motion for new trial after he discovered that the

State had failed to disclose Matheny’s prior conviction of Gross Sexual Imposition. Appellant

argued that the felony conviction fell within the ten-year admissibility window under Evid.R.

609(B); and thus, had he been informed, he could have used the conviction to impeach Hocking App. No. 12CA16 8

Methany’s credibility. The State filed a memorandum in opposition; and in July of 2012, the

trial court held a hearing on the motion. The trial court ultimately denied the motion.

III

LAW & ANALYSIS

A. Motion for Mistrial

{¶ 22} In his first assignment of error, appellant contends that the trial court erred when

it denied his motion for mistrial based on the State’s alleged failure to timely provide discovery

under Crim.R. 16 and Brady v. Maryland,

,

,

(1963).

We review a trial court’s ruling on a motion for mistrial for an abuse of discretion. State v.

Kulchar, 4th Dist. No. 10CA6,

. “The term ‘abuse of discretion’ connotes

more than an error of law or of judgment; it implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.” State v. Adams,

,

(1980).

For the following reasons, the trial court did not abuse its discretion when it denied appellant’s

motion.

{¶ 23} Appellant argues that he was completely taken by surprise when Matheny took

the stand at trial and identified appellant. Appellant further contends that the identification was

prejudicial because the defense was prepared to offer an alibi;5 but in light of Matheny’s

testimony, he was forced to abandon the alibi defense. In short, appellant contends that the State

was obligated to disclose to the defense, prior to trial, the identification Methany had made

during trial preparation.

5 Appellant had filed a notice of alibi on May 21, 2012, which indicated that at the time of the offense appellant was not present at the scene. Hocking App. No. 12CA16 9

{¶ 24} Crim.R. 16 governs discovery in a criminal case. Appellant claims he had a right

to be put on notice of Matheny’s identification pursuant to Crim.R. 16(B)(5) or (7). Crim.R.

16(B)(5) requires the state to disclose, upon written demand of discovery by the defendant, any

evidence “favorable to the defendant and material to guilt or punishment * * *.” Crim.R.

16(B)(7) requires the disclosure of “[a]ny written or recorded statements by a witness in the

state’s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal.”

{¶ 25} Under the plain language of Crim.R. 16(B)(5), appellant was not entitled to

disclosure of Matheny’s pretrial identification. Matheny’s identification placed the appellant in

Logan on the night of the victim’s disappearance; and directly contradicted appellant’s

statements to law enforcement that he had been in Cleveland on the night of the incident.

Therefore, the identification was not favorable to the appellant. Moreover, the identification was

not material to the jury’s determination of guilt. See materiality analysis infra.

{¶ 26} Appellant’s Crim.R. 16(B)(7) argument also lacks merit because Matheny’s

identification of appellant during trial preparation was not a written or recorded witness

statement requiring disclosure. A writing or recording is only a statement for purposes of

Crim.R. 16 if the witness prepared, signed, or adopted the statement; or if it is a substantially

verbatim recital of the witness’ statement written in a continuous, narrative form. State v.

Cunningham,

,

,

, ¶ 44; State v. Phillips, 4th

Dist. Nos. 89-CA-32, 89 CA-33,

, *5 (Mar. 5, 1992); State v. Johnson,

,

, paragraph one of the syllabus (6th Dist. 1978); State v. Moore,

,

(10th Dist. 1991). Similarly, notes taken by a

prosecutor, which are not reviewed, adopted or signed by the witness, do not constitute

discoverable statements within the meaning of Crim.R. 16. State v. Henry,

, Hocking App. No. 12CA16 10

, paragraph three of the syllabus (6th Dist. 1987). In fact, the Henry court

concluded that prosecutor notes of witness interviews are work product, not witness statements.

. The General Assembly has expressly declared work product non-discoverable under

Crim.R. 16. See Crim.R. 16(J)(1) (“The following items are not subject to disclosure under this

rule: (1) Materials subject to the work product protection. Work product includes, but is not

limited to, reports, memoranda, or other internal documents made by the prosecuting attorney or

defense counsel, or their agents in connection with the investigation or prosecution or defense of

the case; * * *.”). Moreover, the General Assembly has made clear that a document prepared by

a person other than the witness is not a witness statement unless “explicitly adopted by the

witness.” Crim.R. 16(B)(6).

{¶ 27} In the case sub judice, discussion during Matheny’s trial preparation was not

reduced to written form prepared, adopted, or signed by Matheny. At best, the discussion may

have been documented in the prosecuting attorneys’ notes, but that is not a written statement as

defined in the case law, supra. Rather, an attorneys’ notes made during witness preparation are

work product expressly protected from disclosure. Even more, the trial record indicates that the

State complied with its obligation under Crim.R. 16(I) by disclosing Matheny as a potential

witness, and providing appellant with his name and address.6 It is also undisputed that the State

provided appellant with Matheny’s March 24, 2011 police statement.

{¶ 28} Even if we were to assume, arguendo, that the State’s failure to disclose the

identification is in fact a Crim.R. 16 violation; we would still conclude that the trial court did not

abuse its discretion in denying appellant’s motion for mistrial. Prosecutorial violations of

6 Crim.R. 16(I) requires each party to provide “to opposing counsel a written witness list, including names and addresses of any witness it intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal.” Hocking App. No. 12CA16 11

Crim.R. 16 result in reversible error only when there is a showing that (1) the violation was

willful, (2) disclosure of the information prior to trial would have aided the accused’s defense,

and (3) the accused suffered prejudice. State v. Jackson,

,

,

; State v. Scott, 4th Dist. No. 05CA809,

.

{¶ 29} Here, the trial court determined that the nondisclosure was not a willful violation

of the rules. We find no reason to overturn that determination. Further, disclosure of the

identification prior to trial would not have aided the appellant’s defense. The State provided

appellant with Matheny’s name and contact information well in advance of trial. The defense

could have contacted Matheny and conducted its own pretrial interview. Plus, the trial court

granted appellant a continuance prior to cross-examination of Matheny. Appellant had adequate

time to fully digest the testimony, and in an effort to challenge the reliability of the testimony,

appellant confronted Matheny with the March 24, 2011 police statement in which he did not

specifically identify appellant as one of the passengers. In short, appellant has failed to indicate

how prior knowledge of the identification would have aided his defense.

{¶ 30} We must also determine whether appellant was entitled to pretrial disclosure

under Brady v.

The Brady decision held that, suppression by the prosecution of

evidence that is favorable to the accused and material either to guilt or to punishment is a

violation of due process. Brady,

,

. “Evidence suppressed by the

prosecution is ‘material’ within the meaning of Brady only if there exists a ‘reasonable

probability’ that the result of the trial would have been different had the evidence been disclosed

to the defense.” State v. LaMar,

,

,

,

citing Kyles v. Whitley,

,

,

(1995). “The

question is not whether the defendant would more likely than not have received a different Hocking App. No. 12CA16 12

verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.”

quoting

.

{¶ 31} At trial, the State offered an abundance of evidence in addition to the testimony

of Matheny that would lead a reasonable juror to conclude that appellant was in fact in Logan on

the night of the victim’s disappearance. For instance, the technological evidence places

appellant in Logan on March 22, 2011. Appellant also admitted to law enforcement that he and

his parents were in a vehicle on the night of the incident that matched eyewitness accounts at

both the site of the kidnapping and the site where the victim’s body was located. Moreover,

defense counsel challenged the credibility of Methany’s identification by confronting him with

the police statement in which he did not identify appellant.7 Accordingly, we find that it is not

reasonably probable that the results of the trial would have been different had Matheny’s

identification been disclosed to defense prior to trial. Appellant received a fair trial resulting in a

verdict worthy of confidence.

{¶ 32} In sum, the State did not violate Crim.R. 16 or Brady. Alternatively, even if a

Crim.R. 16 violation did occur, it does not rise to the level of reversible error. Therefore, the

trial court’s decision to deny appellant’s motion for mistrial was not an abuse of discretion, and

appellant’s due process rights were not infringed. Appellant’s first assignment of error is

overruled.

B. Motion for New Trial

7 This court has previously recognized that Brady is not violated when disclosure occurs during trial, even when disclosure surprises the defendant with previously undisclosed evidence, so long as the material is disclosed to the defendant in time for its effective use at trial. Kulchar, 2011- Ohio-5144, at ¶ 42-43. Hocking App. No. 12CA16 13

{¶ 33} In his second assignment of error, appellant contends that the trial court erred

when it denied his motion for new trial based upon the State’s failure to disclose the prior felony

conviction of Matheny. The State does not dispute that Matheny’s prior conviction was not

disclosed in pretrial discovery.

{¶ 34} Crim.R. 33 sets forth the grounds under which a new trial may be granted on the

motion of a defendant. Appellant sought a new trial under grounds (A)(1) and (2), which state:

(A) Grounds. A new trial may be granted on motion of the defendant for any of

the following causes affecting materially his substantial rights:

(1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse

of discretion by the court, because of which the defendant was prevented from

having a fair trial;

(2) Misconduct of the jury, prosecuting attorney, or the witness for the state; * * *

{¶ 35} Here, it is undisputed that the State failed to comply with Crim.R.

16(B)(2) which requires the prosecutor to disclose “the record of prior convictions that

could be admissible under Rule 609 of the Ohio Rules of Evidence of a witness in the

state’s case-in-chief * * *.” The issue becomes then, whether the trial court erred in

determining that the nondisclosure did not warrant a new trial under Crim.R. 33(A)(1) or

(2).

{¶ 36} Generally, a trial court’s denial of a motion for new trial under Crim.R. 33

is reviewed for an abuse of discretion. State v. Adams, 4th Dist. Nos. 04CA2959,

05CA2986,

, ¶ 80. “ ‘However, when the motion for a new trial alleges Hocking App. No. 12CA16 14

prosecutorial misconduct, we undertake a due process analysis to determine whether the

misconduct of the prosecutor deprived the defendant of his due process right to a fair

trial.’ ”

quoting State v. Swartz, 4th Dist. Nos. 479, 495,

, *3 (Apr. 2,

1993), in turn citing State v. Johnston,

,

(1988).

Therefore, we must determine whether the actions of the prosecutor amount to

misconduct so egregious as to deny appellant his fundamental right to a fair trial.

.

{¶ 37} In cases where the defendant claims that the prosecutor suppressed

properly discoverable, exculpatory evidence, the Johnston court notes:

[T]he usual standards for new trial are not controlling because the fact that such

evidence was available to the prosecution and not submitted to the defense places

it in a different category than if it had simply been discovered from a neutral

source after trial. For that reason, the defense does not have to satisfy the severe

burden of demonstrating that newly discovered evidence probably would have

resulted in acquittal, the standard generally used to evaluate motions filed under

Crim.R. 33. (Citations omitted.)

.

{¶ 38} “By withholding evidence favorable to the accused, the prosecution violates the

defendant’s due process right to a fair trial where the evidence is material either to guilt or

punishment, irrespective of the good or bad faith of the prosecutor.” Swartz at *3, citing

.

{¶ 39} As this court has previously stated in Swartz at *3: Hocking App. No. 12CA16 15

[T]he key question is whether the suppressed evidence is “material.” In Johnston,

the Ohio Supreme Court adopted the test for materiality set out in United States v.

Bagley (1984),

[,

,

.] Under Bagley,

suppressed evidence favorable to the accused is material only if there is a

reasonable probability that the result of the proceeding would have been different

if that evidence had been disclosed to the defense. A “reasonable probability” is a

probability sufficient to undermine confidence in the outcome. Johnston,

paragraph 5 of the syllabus. The test, however, is stringent and the mere

possibility that an item of undisclosed information might have helped the defense

or might have affected the trial does not establish materiality. State v. Jackson

(1991),

, [

,] citing U.S. v. Agurs (1976),

, [

,

.]

{¶ 40} As discussed above, overwhelming evidence was presented at trial that placed

appellant in Logan, Ohio, on the night of his wife’s disappearance. The GPS mapping analysis

and the cell phone records analysis placed appellant in Logan. In addition, numerous witnesses

identified the vehicle in which appellant was admittedly traveling in, both at the scene of the

abduction and the scene where the victim’s body was dumped in the septic system. Contrary to

appellant’s argument, Matheny’s testimony was not so critical that without it, the State could not

obtain a guilty verdict. Thus, even if appellant was successful in impeaching the credibility of

Matheny by use of the prior felony conviction, that would not be sufficient to undermine

confidence in the outcome.

{¶ 41} Thus, the prosecutor’s nondisclosure of Matheny’s prior felony conviction was

not material to appellant’s guilt, and the nondisclosure did not violate appellant’s due process Hocking App. No. 12CA16 16

right to a fair trial. Accordingly, we find that the trial court did not err in denying the motion for

new trial under Crim.R. 33(A)(2).

{¶ 42} Appellant also contends that the trial court erred in denying his motion under

Crim.R. 33(A)(1). The decision to grant or deny a motion for new trial filed under Crim.R.

33(A)(1) is committed to the sound discretion of the trial court; and we will not reverse a trial

court’s denial of the motion absent an abuse of that discretion. State v. Miniard, 4th Dist. No.

04CA1,

, ¶ 40; State v. Sibert,

,

(4th Dist. 1994).

{¶ 43} Here, appellant has not shown that the State’s failure to disclose the prior

conviction of Methany resulted in an irregular proceeding such that he was prevented from

having a fair trial. Appellant’s motion for new trial was predicated on the fact that Matheny’s

identification was critical to the State achieving a guilty verdict; and thus, had he had the

opportunity to impeach Matheny’s credibility with the prior felony conviction the outcome could

have been different. A review of the trial record, however, reveals overwhelming evidence of

appellant’s guilt even absent Matheny’s testimony. As we cannot discern any prejudice, we

cannot say that the trial court abused its discretion in denying the motion for new trial on this

ground. Appellant’s second assignment of error is overruled.

C. Cumulative Error

{¶ 44} For his third and final assignment of error, appellant asserts that cumulative

errors deprived him of a fair trial. Under the doctrine of cumulative error, “a conviction will be

reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional

right to a fair trial even though each of [the] numerous instances of trial court error does not Hocking App. No. 12CA16 17

individually constitute cause for reversal.” State v. Garner,

,

(1995).

{¶ 45} “Before we consider whether ‘cumulative errors’ are present, we must first find

that the trial court committed multiple errors.” State v. Harrington, 4th Dist. No. 05CA3038,

, citing State v. Goff,

,

(1998).

Because we have found no errors, the cumulative error principle is inapplicable. Accordingly,

we overrule appellant’s third assignment of error.

IV

CONCLUSION

{¶ 46} Having overruled all three of appellant’s assignments of error for the reasons set

forth above, we affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Hocking App. No. 12CA16 18

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty- five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate as of the date of such dismissal A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

McFarland, P.J., and Abele, J.: Concur in Judgment and Opinion.

For the Court

By: Marie Hoover, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.