[Cite as State v. Mims,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100520

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ULANDO D. MIMS

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-572465

BEFORE: Boyle, A.J., Rocco, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: December 4, 2014 ATTORNEY FOR APPELLANT

Russell S. Bensing 1350 Standard Building 1370 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Brian R. Radigan Jennifer L. O’Malley Assistant County Prosecutors Justice Center 1200 Ontario Street Cleveland, Ohio 44113

MARY J. BOYLE, A.J.: {¶1} Defendant-appellant, Ulando Mims, appeals his convictions, raising the following

two assignments of error:

I. The trial court erred and abused its discretion in the admission of irrelevant and highly prejudicial evidence, in violation of defendant’s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution.

II. The defendant was provided ineffective assistance of counsel, in

violation of his right to counsel, as protected by the Sixth Amendment to the

United States Constitution.

{¶2} Finding no merit to the appeal, we affirm.

Procedural History and Facts

{¶3} In March 2013, the Cuyahoga County Grand Jury returned an 18- count

indictment against Mims for sexual offenses committed against three child relatives: T.J. (d.o.b.

July 8, 2003); C.B. (d.o.b. June 10, 1998); and A.J. (d.o.b. February 23, 2007). Specifically,

Mims was charged with nine counts of kidnapping, four counts of rape, four counts of attempted

rape, and one count of gross sexual imposition. All of the counts contained sexual predator

specifications, and the kidnapping counts carried sexual motivation specifications.

{¶4} Mims pleaded not guilty to the charges, elected to have the court try the sexual

predator and sexual motivation specifications, and the remaining charges proceeded to a jury

trial. Prior to the start of the jury trial, a hearing was held to determine whether A.J., who was

then six years old, was competent to testify. The court determined that she was competent to

testify.

I. Trial

{¶5} The state called 13 witnesses, including the alleged victims, and presented the following evidence at trial.

{¶6} In November 1999, Mims married Felicia, who is the mother of T.J., the sister of

C.B., and the aunt of A.J. Mims and Felicia also have a nine-month- old child together.

Felicia’s siblings and mother have known Mims for years, even before he married Felicia.

According to Felicia’s mother, Brenda Bryce, she has known Mims since he was a child and

loved him like a son-in-law. By the witnesses’ accounts, Felicia’s siblings and mother had a

“good relationship” with Mims.

{¶7} Prior to the allegations of the sexual offenses arising, Felicia’s family socialized

often at the Mimses’ home. Felicia’s sister, Carey V., testified that she would regularly take her

daughter A.J. over to T.J.’s house to play, letting her spend the night there “maybe every other

weekend.” C.B., Felicia’s youngest sister, also regularly visited the Mimses’ home, hanging out

with T.J.

A. T.J. Reports Sexual Offenses and Receives Medical Treatment

{¶8} In March 2013, allegations of Mims committing sexual offenses against T.J.

surfaced. According to Felicia, T.J. told her that “my dad’s been touchin’ me in a nasty way.”

Felicia confronted Mims, who denied the allegations, and then Felicia called her mother, Brenda,

and her sister, Tina Davis. They immediately came over to Felicia’s house, and Brenda

ultimately took T.J. home with her to stay overnight.

{¶9} Tina took T.J., who was then nine years old, to the hospital the next day to be

examined. Nadine Thomas, a sexual assault nurse examiner (“SANE”), who examined T.J. on

March 7, 2013, read her narrative of the medical examination at trial, which indicated that Mims

had engaged in vaginal and anal intercourse with T.J. and possibly digital penetration.

Thomas’s narrative further indicated an incident of oral sex. Thomas also testified that T.J. stated her stepfather bought a condom prior to the last incident of abuse, which was “the only

time he used a condom.” Thomas indicated that T.J. stated that the abuse began as a game of

hide and seek — T.J. would hide and if Mims found her, he would sexually abuse her. Thomas

testified that she did not find any physical trauma during the exam, but that is not uncommon.

{¶10} Based on a referral from Cuyahoga County Department of Children and Family

Services (“CCDCFS”), Dr. Mark Feingold examined T.J. on April 9, 2013. He read his

narrative of the Alpha Clinic examination, which corroborated the narrative provided to nurse

Thomas. T.J. reported the twisted game of hide and seek that was the genesis of the sexual

abuse. T.J. also described incidents of digital and vaginal penetration, anal intercourse, and oral

sex. T.J. also stated to Dr. Feingold that Mims purchased and used a condom during the last

incident, and that “white stuff” came out. T.J. further provided a detailed description of Mims’s

penis, including the fact that it would get “hard when he did it” and “would get short after a little

when he didn’t do it.” T.J. further informed Dr. Feingold that her aunt, C.B., had witnessed at

least one incident.

{¶11} According to Dr. Feingold’s narrative, T.J. had experienced some urinary

discomfort after the sexual abuse arose. While Dr. Feingold admitted that urinary discomfort

has other causes, he opined that it is unlikely a girl of T.J.’s age would know that it could follow

sexual activity.

B. A.J. Discloses Sexual Abuse and Receives Treatment

{¶12} Carey testified that, in March 2013, her sister Tina called to notify her of the

allegations that T.J. reported against Mims, warning her to speak with her daughter, A.J., who

regularly spent a lot of time at the Mimses’ house. Carey immediately asked A.J. “if anyone was

touching her inappropriately.” A.J. responded, “Uncle UU,” which is how A.J. referred to Mims. Carey testified that she was “shocked” and telephoned the police, who ultimately drove

them to Fairview Hospital for A.J. to be examined.

{¶13} Carey further testified that, at the time of speaking with A.J., she only knew of the

allegations relating to T.J.; she was unaware of any allegations involving her younger sister, C.B.

{¶14} At Fairview Hospital, SANE Patrica McKee examined A.J. and testified that A.J.

told her that she was sleeping at the Mimses’ house when her uncle told her to go into the

bedroom. A.J. told McKee her clothes were still on, but her uncle was naked, got on top of her,

and put “his penis down here.” McKee testified that A.J. was pointing to the genital area

between her legs. McKee further testified that she saw no signs of physical trauma, but that

would be consistent with what A.J. told her.

C. A.J.’s Testimony

{¶15} At trial, A.J., who was then six years old, testified that Mims has touched her in

places “that people aren’t supposed to touch.” She explained that it happened at his house

while her cousin, T.J., was there. A.J. testified that, while T.J. was asleep on the couch, she was

watching TV when Mims told her to come into the bedroom. According to A.J., Mims pulled

down his pants and tried to stick his penis into her mouth. He also tried to touch her private

with his private but her underwear remained on during the incident. A.J. testified that she told

Mims to stop and that he eventually stopped. According to A.J., Mims also told her to keep the

incident a secret, but she did not. A.J. admitted, however, that she was too scared to tell her

mom while it was happening.

D. C.B. Discloses Sexual Abuse

{¶16} Brenda testified that her daughter, C.B., used to go over to Felicia’s house every

weekend and would sometimes go over there during the week. Brenda testified that, in January 2013, she started noticing a change in the interaction between T.J. and C.B. According to

Brenda, “both started becoming very withdrawn, and then C.B. started not wanting to go to

Felicia’s.”

{¶17} In March 2013, after Felicia, Brenda, and Tina became aware of T.J.’s allegations

against Mims, Tina questioned C.B., who started crying. Brenda testified that Tina took C.B.

and T.J. to the hospital the next day while Felicia was at work. C.B., A.J., and T.J. were all

interviewed by Shannon Sneed, a social worker with CCDCFS. Sneed testified that all three

children provided details of the incidents. Sneed referred all three girls to the Guidestone

Abuse Program for counseling, and referred A.J. and T.J. to the Alpha Clinic to be examined and

interviewed again.

E. C.B.’s Testimony

{¶18} At trial, C.B., who was then 15 years old, testified that she has a good relationship

with her siblings and that she is friends with her niece, T.J. According to C.B., she used to see

T.J. almost every day but not as often now.

{¶19} C.B. testified that on one occasion while hanging out with T.J. in February 2012,

she saw Mims unbuckle his pants and put his penis in T.J.’s mouth for “like 30 seconds.” C.B.

further testified that afterwards Mims told her not to say anything. Additionally, C.B. testified

that during a later incident, Mims pinned her body down with his knees and rubbed his body

against hers. She testified that she could not get off the bed because he was on top of her.

C.B. further testified that on other occasions Mims would try to grab her buttocks and try to rub

her thigh, but she would move his hand, and that nothing else happened.

{¶20} C.B. further testified that her sisters Felicia and Bobbie Jo Bennett told her to say

none of the incidents happened. C.B. also indicated that she did not tell T.J. to make this story up about Mims. C.B. testified that she had a “pretty good relationship” with Mims.

F. T.J. Recants Allegations at Trial

{¶21} One week prior to the commencement of Mims’s trial, Felicia notified Mims’s

defense counsel and informed him that T.J. had changed her story.

{¶22} At trial, T.J., who was then 10 years old, testified that she and C.B. made up the

story about Mims. According to T.J., C.B. did not like Mims and the two of them fabricated the

story to get Mims out of the house. T.J. testified that she did not remember speaking with a

social worker or hospital workers regarding the last incident of abuse. T.J. indicated that she

did not know what a condom was and did not remember saying that Mims purchased a condom

or used a condom during the last incident.

{¶23} According to T.J., C.B. was the mastermind behind the entire plan, and C.B. told her what to say. T.J. stated that, although she never saw Mims’s penis, she was able to tell her mom about it. T.J. testified that C.B. “watch, like, porno and stuff, and that’s how, like, she found all this stuff out.” Although T.J. was unsure whether C.B. had ever seen Mims’s penis before, she testified that C.B. told her how to describe it.

{¶24} T.J. further testified that she and C.B. were the only parties to the plan of

fabricating the allegations.

{¶25} T.J. also testified that she is not that close to C.B. because “she’s too grown for me

— ‘cause she talks about boys, she puts me on Instagram and FB, and puts on makeup.”

G. Felicia’s Testimony and Tape-Recorded Jailhouse Calls

{¶26} The state called Felicia as a court’s witness, who acknowledged that the state had

to issue an arrest warrant for her to appear in court.

{¶27} Felicia testified that she did not call the police upon hearing T.J.’s allegations

because she was “confused” and believed that T.J. needed to be examined by a doctor first.

Felicia confirmed that she told Mims to leave the house upon hearing the allegations but later allowed him to return that same night. Felicia testified that, following Mims’s arrest, she

received possibly threatening messages on her Facebook page and some of Mims’s relatives

visited her at work. Although Felicia admitted that she filed a police report against them, she

testified that she did so only upon her mother’s insistence.

{¶28} Felicia further admitted to telling Mims the specific details of T.J.’s allegations

after he was arrested but indicated that it was not right away.

{¶29} The state offered recorded jailhouse phone calls between Felicia and Mims that

took place shortly after Mims was arrested. In the recording, Felicia is heard telling Mims what

T.J. reported and stating that there are “too many details.” Mims asked Felicia to get them to

say they were lying and repeatedly urged Felicia to talk to her daughter, emphasizing that he

could not come home unless she changed her story. During the call, Felicia indicated that she

had talked to T.J. and that T.J. was not changing her story. Felicia later stated in the recording

that she informed T.J. how much time Mims could get but she was still insisting that this

happened. At one point, Mims told Felicia to talk to T.J. when no one was around — “without

no one listening.” Mims further directed Felicia to tell T.J. that “I’m sorry.”

{¶30} Felicia testified that she never told T.J. to change her story. According to Felicia,

T.J.’s story only changed after she had a falling out with C.B.

{¶31} Upon questioning from defense counsel, Felicia testified that Mims was

responsible for prohibiting C.B. from coming over to their house, which upset C.B. Felicia also

testified that she did not like T.J. hanging out with C.B. because of their age difference and

because C.B. was “more into boys.”

H. Evidence of Mims Using “K2” and Testimony Describing “K2” as a Narcotic {¶32} At trial, the state also elicited testimony from some of the witnesses as to Mims

using “K2” — a synthetic marijuana. Specifically, the state first asked C.B. on redirect if

anything different had happened at the time that the sexual abuse arose. C.B. responded that

Mims’s attitude had changed and attributed his smoking K2 as causing the change in his attitude.

{¶33} During Felicia’s testimony, the state played another recorded jailhouse call wherein

Felicia mentions K2 and states that she told a detective that her husband did not do anything until

after he started smoking K2, which should warrant a drug treatment program instead of jail time.

Felicia further testified at trial that she too smoked K2 in the house with Mims and that “K2

gives you the same feeling that you get with marijuana.” Felicia described K2 as “legalized

weed.” The state asked Brenda about Mims smoking K2, and she testified that he was

“forgetful and goofy.” The state also asked Bobbie Jo on cross-examination as to her

knowledge of Mims smoking K2, which she indicated that he had, along with herself and her

husband.

{¶34} Over defense counsel’s objection, the state further offered Captain Brian Heffernan

of the Cleveland Police Department’s narcotics unit to testify as to his knowledge of K2.

Specifically, Captain Heffernan testified that in 2010, the Cleveland narcotics unit became aware

of K2 — a brand name for a synthetic cannabinoid that was first identified in the mid-to-late 90s.

Captain Heffernan testified that he was aware of two complaints concerning K2: (1) the

substance was being sold to underage kids, and (2) people were hospitalized with psychiatric

episodes after using it. Captain Heffernan further testified that until October 2011, the drug was

legal and sold in packages labeled “not for human consumption.”

{¶35} Upon resting its case, the state voluntarily dismissed one count of rape, one count

of attempted rape, and six counts of kidnapping. II. Defense Witnesses

{¶36} Mims offered three witnesses on his behalf: Bobbie Jo Bennett, Felicia’s sister;

Charles Bennett (“Chuck”), Felicia’s brother-in-law (married to Bobbie Jo); and E.D., Felicia’s

15-year-old nephew. These witnesses testified as to spending considerable amount of time at

the Mimses’ house and never observing Mims touching T.J. inappropriately.

{¶37} According to Bobbie Jo, she and her two young children and husband spent

everyday at Mims’s house from 2011-2012, and often spent the night. Bobbie Jo testified that

“[C.B.] was hardly there,” and A.J. was never there during her visits. According to Chuck, he

and his family were at the Mimses’ house “like everyday” in 2011 and 2012. He testified that

A.J. never spent the night but C.B. occasionally did. Similarly, E.D. testified that he stayed at

the Mimses’ house six days a week in 2012, sleeping on the couch. According to E.D., C.B.

stayed one night on the weekends. E.D. further testified that he slept over at the house with

Mims, Felicia, and T.J., indicating that those were the only people sleeping there.

III. Verdict and Sentence

{¶38} The jury found Mims guilty on all the remaining counts of the indictment. The

court found Mims guilty of the sexual motivation specifications but not guilty of the sexually

violent predator specifications. The trial court subsequently sentenced Mims to a total term of

life imprisonment with parole eligibility after 35 years.

Admission of “K2” Evidence

{¶39} In his first assignment of error, Mims argues that the state improperly introduced

other acts evidence throughout the trial that he smoked K2, which was erroneously admitted into

evidence to show his propensity to commit crime, in violation of Evid.R. 404(B). Mims

contends that his use of K2 was the focal point of the trial to support the state’s theory that his “use of K2 was the reason he began molesting his stepdaughter and other children.” According

to Mims, the evidence of his K2 use was irrelevant and highly prejudicial.

{¶40} Evid.R. 404(B) provides that “evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” The list of

acceptable reasons for admitting testimony of prior bad acts into evidence, however, is

non-exhaustive. State v. Bagley, 3d Dist. Allen No. 1-13-31,

.

{¶41} In determining whether to permit other-acts evidence to be admitted, trial courts

should conduct the three-step analysis set forth in State v. Williams,

,

,

: (1) determine if the other-acts evidence “is relevant to

making any fact that is of consequence to the determination of the action more or less probable

than it would be without the evidence” under Evid.R. 401; (2) determine if the other-acts

evidence “is presented to prove the character of the accused in order to show activity in

conformity therewith or whether the other-acts evidence is presented for a legitimate purpose,

such as those stated in Evid.R. 404(B)”; and (3) consider “whether the probative value of the

other-acts evidence is substantially outweighed by the danger of unfair prejudice.” Id. at ¶ 20.

{¶42} With the exception of Captain Heffernan’s testimony, the defense did not object to

the K2 testimony that Mims challenges now on appeal. Mims therefore has waived all but plain

error.

{¶43} “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.

Long,

,

(1978), paragraph three of the syllabus. Crim.R. 52(B) places the following three limitations on a reviewing court’s decision to correct an error despite

the absence of a timely objection at trial: (1) there must be error; (2) the error must be an

“obvious” defect in the trial proceedings; and (3) the error must have affected “substantial

rights.” State v. Barnes,

,

,

. The Ohio

Supreme Court has interpreted the third limitation of the rule “to mean that the trial court’s error

must have affected the outcome of the trial.”

In other words, plain error requires that “but

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

,

(1997).

{¶44} According to the state, evidence of Mims smoking K2 was not impermissible

other-acts evidence, but relevant background information. Specifically, the state argues that

“[t]he evidence of [Mims’s] drug use corresponds to his demeanor before and during the times

the criminal acts occurred as well as his plan to avoid prosecution as a whole.”

{¶45} The record reveals that the first mention of Mims’s use of K2 came up during the

state’s redirect of C.B., following defense counsel’s questioning of C.B.’s recollection of the

timing of Mims first committing any sexual offenses. Specifically, the prosecutor asked C.B. the

following during redirect:

Q. [Prosecutor]: [C.B.], [defense counsel] spent a lot of time asking you if anything happened before this day in February of 2012. Right?

A. [C.B.]: Mm-hmm.

Q. [Prosecutor]: And, you said no, right?

A. [C.B.]: Mm-hmm.

Q. [Prosecutor:] Was there anything different that had happened prior to 2012 when this started and then what happened after 2012 after this first time?

A. [C.B.:] What do you mean? Like — Q. [Prosecutor:] Did anything change with Mr. Mims?

A. [C.B.:] Like, yeah, like his attitude and stuff, like — mm-hmm. Q. [Prosecutor:] Okay. Did you know whether or not he was doing anything that changed that attitude?

A. [C.B.] Yeah, he was smokin’.

Q. [Prosecutor:] What was he smoking?

A. [C.B.] K2.

{¶46} Immediately following C.B.’s answer, defense counsel objected but then withdrew

the objection following a sidebar conference.

{¶47} Contrary to Mims’s assertion, we do not find that the state offered this testimony to

show that Mims had a propensity for committing a crime in violation of Evid.R. 404(B).

Although we do not find the state’s asserted grounds on appeal for supporting the introduction of

this evidence to be compelling, we nonetheless find that the evidence was properly admitted.

{¶48} Our reading of the transcript reveals that the defense opened the door to C.B.’s

testimony after the defense extensively questioned her credibility as to the timing of when she

first observed Mims committing the sexual offenses. C.B.’s testimony reveals her association

with Mims first engaging in this inappropriate conduct around the same time that he started

smoking K2. This testimony therefore is relevant to the circumstances surrounding the abuse in

C.B.’s mind and her credibility as to specifically remembering when it arose.

{¶49} Further, once the evidence was properly admitted through C.B.’s testimony, we

find no abuse of discretion in the trial court allowing other witnesses to testify as to their

knowledge of Mims smoking K2 because such testimony served only to corroborate C.B.’s

testimony and bolster her credibility. See generally State v. Culp, 9th Dist. Summit No. 26188,

(recognizing that evidence corroborating victim’s testimony is relevant to

the victim’s credibility).

{¶50} This evidence therefore satisfies the first two prongs of the Williams test as being

both relevant and offered for an acceptable reason other than showing that Mims acted in

conformity with his prior bad act.

{¶51} We likewise find no basis to conclude that the probative value of this evidence is

substantially outweighed by the danger of unfair prejudice. Having found that this evidence

was relevant, we find no merit to Mims’s claim that the evidence had no probative value and

therefore presumably prejudicial. Moreover, we do not find Mims’s prior use of K2 — a

substance that was legal up until 2011 — to be so inflammatory to bias the jury to conclude that

Mims’s drug use proved an inclination to commit sexual offenses. This is a leap that no

reasonable juror would take.

{¶52} But regardless, even if we agreed that the admission of the evidence was error, we

find no plain error in this case. We find that the outcome of the case would have been the same

even in the absence of repeated testimony concerning Mims’s use of K2.

{¶53} Here, the three victims separately disclosed Mims committing sexual offenses

against them. While Mims tries to argue that C.B. plotted to fabricate the allegations, this

theory is belied by T.J.’s admission that A.J. was never a part of the plan. Despite not being

aware of the “plan,” A.J. unequivocally and consistently identified “Uncle UU” as touching her

inappropriately. Further, the evidence revealed that A.J. had no motive to lie.

{¶54} Although T.J. recanted at trial, her testimony was rife with inconsistencies and

contradictions. For example, T.J. described Mims’s penis in detail to Dr. Feingold, but at the

trial she stated that she had never seen Mims’s penis. While initially unresponsive to the prosecutor’s question as to how she was able to describe previously Mims’s penis, T.J. ultimately

stated that C.B. told her how to describe it, but acknowledged that she did not know if C.B. had

seen it. Further, both Dr. Feingold and the SANE Thomas testified that T.J. volunteered that

Mims had purchased and used a condom during the last incident of sexual abuse. T.J.,

however, testified at trial that she did not know what a condom was nor did she have any

recollection of stating anything about a condom.

{¶55} Further, the state presented circumstantial evidence that T.J. was pressured to

change her story at trial. Specifically, the tape-recorded jailhouse calls revealed that Mims was

pressuring Felicia to talk to her daughter so that he could come home. Notably, during the calls,

Mims repeatedly pressures Felicia to talk to T.J. in order to get the charges dropped. Based on

the timing of T.J. recanting — one week prior to trial — and the evidence of Mims pressuring

Felicia to get T.J. to say none of it happened, the jury reasonably disregarded T.J.’s testimony at

trial.

{¶56} Conversely, T.J.’s statements prior to trial consistently identified Mims as the

perpetrator and consistently reported with detail the sexual offenses. As noted by Dr. Feingold,

T.J., who was only nine years old at the time of reporting the offenses, testified as to urinary

discomfort after the sexual abuse arose — a fact that a girl of T.J.’s age would not likely know.

Notably, even Felicia noted in her conversation to Mims that T.J. was insisting that this

happened.

{¶57} Finally, the statements of the three victims, coupled with the recorded jailhouse

calls, convinces us that the jury would have undoubtedly convicted Mims. In the calls, Mims

consistently urges Felicia to get T.J. to change her story so that he can come home. He goes as far to tell Felicia to get T.J. alone to talk to her with “no one listening.” Notably, Mims even

implicates himself by directing Felicia to tell T.J. that he is sorry.

{¶58} Accordingly, based on this evidence, we find that the outcome of the trial would

have been the same even if the evidence of Mims’s K2 use had not been admitted.

{¶59} As for Captain Heffernan’s testimony — the sole evidence that Mims objected to

— we find no basis to conclude that his testimony violated Evid.R. 404(B). Captain Heffernan

testified as to his general knowledge of K2 and offered no testimony specific to any bad acts

committed by Mims. Indeed, the trial court specifically limited Heffernan’s testimony to not

include any opinion pertaining to Mims. Thus, Captain Heffernan’s testimony does not

constitute improper “other acts” testimony contemplated and prohibited under Evid.R. 404(B).

See State v. Persohn, 7th Dist. Columbiana No.

,

(recognizing that the

detective’s general testimony regarding confidential informant did not constitute other acts

testimony prohibited under Evid.R. 404(B) because defendant’s alleged bad acts were not even

discussed during detective’s testimony).

{¶60} To the extent that Mims challenges the general admissibility of Captain

Heffernan’s testimony under Evid.R. 401 or 403, we find that if the trial court committed any

error, such error was harmless. An error is harmless if it does not affect a substantial right of an

accused. Crim.R. 52(A). Disregarding Captain Heffernan’s testimony, we find that the record

contains overwhelming evidence to support the convictions. See State v. Davis,

,

(8th Dist. 1974) (harmless error if after reading the entire

record and disregarding the objectionable evidence, overwhelming evidence of defendant’s guilt

remains). We simply do not agree that Captain Heffernan’s testimony improperly contributed to his conviction. Accordingly, we find that the error complained of was harmless beyond a

reasonable doubt and did not deprive Mims of his constitutional right to a fair trial.

{¶61} The first assignment of error is overruled.

Ineffective Assistance of Counsel

{¶62} In his second assignment of error, Mims argues that he was provided ineffective

assistance of counsel, in violation of his Sixth Amendment right to counsel. He claims that his

trial counsel was deficient by failing to object to the repeated submission of the evidence of

Mims’s K2 drug use and that such failure prejudiced him. We disagree.

{¶63} To establish ineffective assistance of counsel, a defendant must show (1) deficient

performance by counsel, i.e., performance falling below an objective standard of reasonable

representation, and (2) prejudice, i.e., a reasonable probability that but for counsel’s errors, the

proceeding’s result would have been different. Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989), paragraphs two and three of the syllabus.

{¶64} Even if we agreed that defense counsel should have objected to any reference of

Mims’s K2 use, and assuming that the trial court should have prohibited any mention of K2, we

nonetheless find no prejudice in this case. Contrary to Mims’s assertion, his convictions do not

arise from the evidence of him having smoked K2; the convictions are a result of the victims’

testimony of the abuse and his own statements recorded in the jailhouse calls. We find no

reasonable probability that but for counsel’s errors, the proceeding’s result would have been

different.

{¶65} The second assignment of error is overruled.

{¶66} Judgment affirmed. It is ordered that appellee recover from appellant 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 common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for execution of

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

KENNETH A. ROCCO, J., and EILEEN A. GALLAGHER, J., CONCUR