[Cite as State v. Williams,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-19-70

v.

ALONZO L. WILLIAMS, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2019 0004

Judgment Affirmed

Date of Decision: February 1, 2021

APPEARANCES:

F. Stephen Chamberlain for Appellant

Jana E. Emerick for Appellee Case No. 1-19-70

ZIMMERMAN, J.

{¶1} Defendant-appellant, Alonzo L. Williams, Jr. (“Williams”), appeals his

conviction and sentence of the Allen County Court of Common Pleas. For the

reasons that follow, we affirm.

{¶2} This matter stems from a series of drug-related charges involving

Williams that took place in Allen County, Ohio at three separate locations and on

three separate dates: October 4, 2018, October 29, 2018, and December 28, 2018.

{¶3} On February 14, 2019, the Allen County Grand Jury indicted Williams

on ten criminal charges including: Count One, failure to comply with an order or

signal of a police officer in violation of R.C. 2921.331(B), (C)(5)(a)(ii), a third-

degree felony; Count Two, possession of heroin in violation of R.C. 2925.11(A),

(C)(6)(d), a second-degree felony; Count Three, aggravated possession of drugs in

violation of R.C. 2925.11(A), (C)(1)(b), a third-degree felony; Counts Four and

Five, aggravated possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a),

each fifth-degree felonies; Count Six, trafficking in heroin in violation of R.C.

2925.03(A)(1), (C)(6)(c), a fourth-degree felony; Count Seven, aggravated

trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1)(a), a fourth-degree

felony; Count Eight, tampering with evidence in violation of R.C. 2921.12(A)(1),

(B), a third-degree felony; Count Nine, having weapons while under disability in

violation of R.C. 2923.13(A)(3), (B), a third-degree felony; and Count Ten, carrying

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a concealed weapon in violation of R.C. 2923.12(A)(2), (F)(1), a fourth-degree

felony.1 (Doc. No. 5). The indictment included forfeiture specifications as to

Counts Two, Three, Four, and Five. (Id.). On February 20, 2019, Williams

appeared for arraignment and entered pleas of not guilty. (Doc. No. 11).

{¶4} On October 4, 2019, the State filed its notice of intent to use “other-

acts” evidence at trial under Evid.R. 404(B) and R.C. 2945.59. (Doc. No. 98). On

October 10, 2019, Williams filed his memorandum in opposition to the State’s

notice. (Doc. No. 112). The trial court addressed the State’s “other acts” motion

and the defense’s objection at a pretrial hearing and granted the State’s request.

(Oct. 15, 2019 Tr., Vol. I, at 4-20).

{¶5} Williams’s case proceeded to a jury trial on October 15, 16 and 17, 2019

wherein he was found guilty of all counts and specifications. (Doc. Nos. 121, 122,

123, 124, 125, 126, 127, 128, 129, 130, 133); (Oct. 17, 2019 Tr., Vol. III, at 825-

836, 847-848).

{¶6} On October 17, 2019, the trial court sentenced Williams to an aggregate

of 17 years in prison.2 (Doc. No. 134); (Oct. 17, 2019 Tr., Vol. III, at 853-857).

1 Counts One, Two, Three, Four, and Five occurred on or about October 4, 2018; Counts Six and Seven occurred on or about October 29, 2018; and Counts Eight, Nine, and Ten occurred on or about December 28, 2018. (Doc. No. 5). 2 The trial court ordered a mandatory-minimum-drug fine in the amount of $7,500 with a specific distribution as to Count Two and forfeited $5,288 as to Counts Two, Three, Four, and Five. (Doc. No. 134); (Oct. 17, 2019 Tr., Vol. III, at 854-855). Williams was given 179 days’ jail-time credit. (Id.); (Id. at 859). After sentencing, and on October 18, 2019, Williams’s trial counsel filed an affidavit of indigency and financial disclosure form. (Id.); (Id.)

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The judgment entries of conviction and sentencing were journalized on October 21,

2019. (Doc. Nos. 133, 134). Williams filed his notice of appeal on November 7,

2019, and Williams raises the following four assignments of error for our review.

(Doc. No. 139).

Assignment of Error No. I

The Trial Court Committed Error Prejudicial To The Defendant By Improperly Excluding Two African-American Jurors For Cause Over The Objections Of The Defendant.

Assignment of Error No. II

The Trial Court Committed Error Prejudicial To The Defendant By Overruling The Defendant’s Motion To Exclude Other Acts Evidence Under Evid.R. 403 And 404.

Assignment of Error No. III

The Trial Court Committed Error Prejudicial To The Defendant By Allowing And [sic] Out Of Court Identification Of The Defendant It Was Based Upon A Tainted An [sic] Illegal Photo Lineup.

Assignment of Error No. IV

The Trial Counsel For The Defendant Was Ineffective And Therefore Violated The Defendant’s Right To Effective Assistance Of Counsel Pursuant To The Sixth And Fourteenth Amendments Of The United States Constitution And Article One Section Ten Of The Ohio Constitution.

{¶7} For ease of our discussion, we will discuss Williams’s assignments of

error out of order.

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Assignment of Error No. II

The Trial Court Committed Error Prejudicial To The Defendant By Overruling The Defendant’s Motion To Exclude Other Acts Evidence Under Evid.R. 403 And 404.

{¶8} In his second assignment of error, Williams asserts that the trial court

permitted “other acts” into evidence, which constituted impermissible propensity

evidence under Evid.R. 404, that was irrelevant and unfairly prejudicial under

Evid.R. 401, 402, and 403.

Standard of Review

{¶9} “Generally, ‘[a] trial court is given broad discretion in admitting and

excluding evidence, including “other bad acts” evidence.’” State v. Wendel, 3d Dist.

Union No. 14-16-08,

, quoting State v. Williams, 7th Dist.

Jefferson No. 11 JE 7,

, citing State v. Maurer,

(1984). However, “[t]he admissibility of other-acts evidence pursuant to

Evid.R. 404(B) is a question of law.” State v. Hartman, ___ Ohio St.3d ___, 2020-

Ohio-4440, ¶ 22.

{¶10} Thus, this court reviews de novo whether a trial court admitted

improper character evidence and applies an abuse-of-discretion standard to

evidentiary decisions regarding the admission of other-acts evidence for permissible

purposes. See

citing Leonard, The New Wigmore: Evidence of Other

Misconduct and Similar Events, Section 4.10 (2d Ed. 2019) (because “[d]etermining

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whether the evidence is offered for an impermissible purpose does not involve the

exercise of discretion * * *, an appellate court should scrutinize the [trial court’s]

finding under a de novo standard” of review) and State v. Williams,

,

(the trial court is precluded by Evid.R. 404(B) from

admitting improper character evidence, but it has discretion whether to allow other-

acts evidence that is admissible for a permissible purpose). See also State v. Glenn-

Coulverson, 10th Dist. Franklin No. 16AP-265,

(“Thus, a

reviewing court will not reverse a trial court’s evidentiary ruling absent an abuse of

discretion that materially prejudices the affected party.”), citing State v. Issa,

(2001).

{¶11} “De novo review is independent, without deference to the lower

court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38,

, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio,

(1992). An abuse of discretion implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. State v. Adams,

(1980).

Analysis

{¶12} Initially, we must determine whether Williams preserved this issue on

appeal. Williams’s arguments revolve around the testimonies of Detective Matt

Boss’s (“Det. Boss”), Deputy Justin Kirk’s (“Dep. Kirk”) and Patrolman Kaitlyn

Weiderman’s (“Ptlm. Weiderman”) regarding Williams’s three previous traffic

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stops. (See Oct. 15, 2019 Tr., Vol. I, 7-20, 299-321). The record reveals that

Williams objected to the admission of his two prior traffic stops involving Dep. Kirk

and Ptlm. Weiderman by pretrial motion and prior to the commencement of voir

dire. (Doc. Nos. 98, 148); (Oct. 15, 2019 Tr., Vol. I, 7-20, 299-321). Further, the

record reveals that Williams objected to the statements made in open court of Det.

Boss and Dep. Kirk contemporaneously with their testimonies. (Oct. 15, 2019 Tr.,

Vol. I, 299-321). Accordingly, Williams has preserved this issue for our review, on

appeal.

{¶13} “‘Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show action

in conformity therewith.”’” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-

1787, ¶ 56, quoting State v. May, 3d Dist. Logan No. 8-11-19,

, quoting Evid.R. 404(B). See also Wendel at ¶ 21. “‘However, there are

exceptions to the general rule: “[i]t may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.”’” Bagley at ¶ 56, quoting May at ¶ 69, quoting

Evid.R. 404(B). See also R.C. 2945.59. “‘The list of acceptable reasons for

admitting testimony of prior bad acts into evidence is non-exhaustive.’” Bagley at

¶ 56, quoting State v. Persohn, 7th Dist. Columbiana No.

, 2012-Ohio-

6091, ¶ 23, citing State v. Melton, 11th Dist. Lake No. 2009-L-078, 2010-Ohio-

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1278, ¶ 78, and citing State v. Faye, 3d Dist. Wyandot Nos. 16-99-08 and 16-99-09,

, *4 (May 4, 2000). Here, the other-acts evidence was principally

offered by the State to prove Williams’s identity. (Oct. 15, 2019 Tr., Vol. I, at 11).

{¶14} “Other acts can be evidence of identity in two types of situations. First

are those situations where other acts ‘form part of the immediate background of the

alleged act which forms the foundation of the crime charged in the indictment,’ and

which are ‘inextricably related to the alleged criminal act.’” State v. Lowe,

, 531 (1994), quoting State v. Curry,

(1975).

{¶15} “Other acts may also prove identity by establishing a modus operandi

applicable to the crime with which a defendant is charged.”

“‘Modus operandi’

literally means method of working.” Hartman at ¶ 37, citing People v. Barbour,

,

,

(1982). “‘“Other acts”

may be introduced to establish the identity of a perpetrator by showing that he has

committed similar crimes and that a distinct, identifiable scheme, plan, or system

was used in the commission of the charged offense.’”

, quoting State v.

Smith,

(1990). “Evidence of modus operandi is relevant to

prove identity: ‘Evidence that the defendant had committed uncharged crimes with

the same peculiar modus tends to identify the defendant as the perpetrator of the

charged crime.’” Hartman at ¶ 37, quoting 1 Imwinkelried, Giannelli, Gilligan,

Lederer & Richter, Courtroom Criminal Evidence, Section 907 (6th Ed. 2016). See

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also

(“A certain modus operandi, is admissible not because it labels a

defendant as a criminal, but because it provides a behavioral fingerprint which,

when compared to the behavioral fingerprints associated with the crime in question,

can be used to identify the defendant as the perpetrator.”). “To be admissible to

prove identity through a certain modus operandi, other-acts evidence must be

related to and share common features with the crime in question.” (Emphasis sic.)

. See also Hartman at ¶ 37.

{¶16} The Supreme Court of Ohio has set forth a three-step analysis for trial

courts to conduct in determining whether “other acts” evidence is admissible under

Evid.R. 404(B). State v. Williams,

,

.

“The first step is to consider whether 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.” Id. at ¶ 20, citing Evid.R. 401.

See also Hartman at ¶ 24, 28. “The next step is to consider whether evidence of the

other crimes, wrongs, or acts 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).”

Williams at ¶ 20. See also Hartman at ¶ 26. “The third step is to consider whether

the probative value of the other acts evidence is substantially outweighed by the

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danger of unfair prejudice.” Williams at ¶ 20, citing Evid.R. 403. See also Hartman

at ¶ 29.

{¶17} Here, to properly address Williams’s “other acts” argument, we must

undertake a review as to the State’s use of such evidence at trial. First, as to the

facts of Williams’s current case, the State called Deputy Scott Danmeyer (“Dep.

Danmeyer”) as its first witness in its case-in-chief. (Oct. 15, 2019 Tr., Vol. I, at

209). Dep. Danmeyer testified that he was attempting to initiate a traffic stop of a

motor vehicle registered to Betty Jo Cotton (“Cotton”)) whom Dep. Danmeyer

believed was under a driver’s-license suspension at the time. (Id. at 210-215). He

further testified he could not see the driver because the vehicle’s windows tint was

too dark. (Id. at 210-214). According to Dep. Danmeyer, after he stopped the

vehicle and as he approached the rear of the vehicle, the vehicle sped off. (Id. at

215). A chase ensued culminating in Dep. Danmeyer witnessing the suspect’s

vehicle pull into a private driveway in a residential area. (Id. at 215-223). Dep.

Danmeyer testified that he witnessed the suspect exit the vehicle, turn and face him

briefly, then turn and run around the side of the residence and through the back yard.

(Id. at 224, 225). Dep. Danmeyer testified that he gave chase, but the suspect eluded

him. (Id. at 224).

{¶18} Next, the State called its first witness as to “other acts” evidence, Det.

Boss. (Id. at 299). Det. Boss testified that he was involved in a traffic stop of a

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vehicle (owned by Cotton) and being driven by Williams in Lima on August 16,

2016. (Id. at 300).

{¶19} Then, the State called Dep. Kirk regarding his traffic stop involving

Williams in Lima on May 10, 2016 as its second witness of “other acts” evidence.

(Id. at 304). Dep. Kirk testified that he was running traffic on North Cole Street in

Lima, Allen County, Ohio when he clocked Williams on radar driving in excess of

the posted speed limit. (Id. at 305). After Dep. Kirk activated his overhead lights,

Williams sped away eventually pulling into a driveway of a private residence and

then exit the vehicle. (Id. at 305-307). According to Dep. Kirk, as Williams rounded

the front of the driver’s side of the vehicle, he witnessed Williams throw something

into the front yard. (Id. at 307-308). After detaining and identifying Williams, Dep.

Kirk retrieved the object discarded by Williams, which was later determined to be

heroin. (Id. 308-310). Dep. Kirk testified that Williams entered a guilty plea to a

possession of heroin charge stemming from this incident. (Id. at 310).

{¶20} Lastly, the State called Ptlm. Weiderman as its third witness of the

“other acts” evidence of Williams. (Id. at 311). Ptlm. Weiderman, Lima Police

officer, testified that she observed Williams (with whom she was familiar and knew

to be currently under a license suspension and having no valid operator’s license)

operating a motor vehicle. (Id. at 312-313). Ptlm. Weiderman activated her lights

to initiate a traffic stop. (Id.). Williams then pulled into a private driveway and

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quickly exited the vehicle. (Id. at 313-314). While out of Ptlm. Weiderman’s sight,

Williams ran to the back of the house, and after a few seconds, returned to the front

of the motor vehicle. (Id. at 314). After Williams was detained in the back of Ptlm.

Weiderman’s cruiser, she searched the area behind the house (where Williams ran)

and located a bag containing an unknown substance on the roof of the residence.

(Id. at 315-316). Thereafter, the substance was determined to be heroin, and

William was ultimately convicted of possession of heroin. (Id. at 316). In the case

before us, the State offered these traffic stops of Williams for the legitimate purpose

of proving the identity of Williams as to the suspect who fled from Dep. Danmeyer.

{¶21} In applying the first step of the Williams analysis, we look to the “other

acts” evidence elicited by the State through the testimonies of Det. Boss, Dep. Kirk,

and Ptlm. Weiderman. See Williams,

,

.

This evidence of William’s history of driving Cotton’s vehicle, his vehicle, and

flight from law enforcement stopping abruptly in a private driveway, and fleeing the

officer on foot where discarded illegal drugs are discovered along his fleeing path,

has a “tendency to make the existence of any fact that is of consequence” (that

Williams was identified as the driver of Cotton’s vehicle by Dep. Danmeyer and

person who fled him along the path where illegal drugs were discovered) “more

probable * * * than it would be without that evidence.” Evid.R. 401. Because this

evidence is relevant to the question of Williams’s identity, and “[a]ll relevant

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evidence is admissible * * *” under Evid.R. 402, we conclude that this evidence was

both relevant and admissible under the first step of the Williams analysis. See

Williams at ¶ 20.

{¶22} As to the second step of our analysis, we conclude that that the

evidence was of Williams’s prior traffic stops was admitted for a permissible

nonpropensity purpose namely, identity, which is material under the facts before us

and not offered as evidence of other crimes, wrongs, or acts. (See Oct. 15, 2019 Tr.,

Vol. I, at 11). See Williams at ¶ 20; Hartman at ¶ 26-27; Evid.R. 404(B). Thus, the

second prong of the Williams analysis is satisfied.

{¶23} We now address the third and final step of the Williams analysis,

which is whether exclusion of the “other acts” evidence (i.e., the three prior traffic

stops) is mandated under Evid.R. 403(A). See Williams at ¶ 20, citing Evid.R. 403;

Hartman at ¶ 29. Williams argues that since other evidence exists in the record (i.e.,

the photo array shown to Dep. Danmeyer and evidence located during Dep.

Danmeyer’s search of Cotton’s vehicle) supporting Williams to be the driver of

Cotton’s vehicle, the State’s “other acts” evidence is cumulative and prejudicial.

(Oct. 15, 2019 Tr., Vol. I, at 13-14, 16-17, 237, 288); (See State’s Exs. 10, 12, 13).

However, we agree with the trial court’s ruling and conclude this argument to be

unpersuasive under the facts presented.3 (Id.); (Id.).

3 Importantly, Williams never stipulated that he was person who fled on foot from Dep. Danmeyer, making the identity of the person involved in the traffic stop of October 4, 2018 material (and genuinely disputed)

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{¶24} Moreover, even if we were to have concluded otherwise, the trial court

provided the jury with a well-tailored limiting instruction as to the purpose of the

“other acts” evidence and mitigated the risk of unfair prejudice.4 See Hartman at ¶

70.

{¶25} Because we concluded that the other-acts evidence introduced in this

case was relevant and admissible for a permissible nonpropensity purpose, which

was a material issue before the trial court and that exclusion of this evidence was

not mandated under Evid.R. 403(A), we cannot say that the trial court abused its

discretion by admitting the “other acts” evidence under Evid.R. 404(B).

{¶26} Accordingly, Williams’s second assignment of error is overruled.

Assignment of Error No. III

The Trial Court Committed Error Prejudicial To The Defendant By Allowing And [sic] Out Of Court Identification Of The Defendant It [sic] Was Based Upon A Tainted An [sic] Illegal Photo Lineup.

{¶27} In his third assignment of error, Williams argues that the trial court

erred in admitting evidence of his out-of-court identification (i.e., a photo lineup) at

trial. Specifically, Williams argues that the out-of-court identification (of Williams

under Counts One, Two, Three, Four, and Five. Consequently, we cannot conclude that exclusion of this evidence was required under Evid.R. 403(A). 4 The limiting instruction in the instant case was specifically tailored to the underlying facts of Williams’s case. (See Oct. 17, 2019 Tr., Vol. III, at 772).

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as the driver of the vehicle) by Dep. Danmeyer was derived from impermissibly

suggestive pretrial-identification procedures, and thus should have been excluded.

Standard of Review

{¶28} “[T]he admission of evidence lies within the broad discretion of the

trial court, and a reviewing court should not disturb evidentiary decisions in the

absence of an abuse of discretion that has created material prejudice.” State v.

Conway,

,

, ¶ 62, citing Issa,

. “[O]ur inquiry is confined to determining whether the trial court acted

unreasonably, arbitrarily, or unconscionably in deciding the evidentiary issues about

which” Williams complains.

citing State v. Barnes,

(2002).

Here, William’s argues that the evidence that was admitted as to Williams’s out-of-

court identification was non-compliant with R.C. 2933.83 and hence, unreliable.

Analysis

{¶29} R.C. 2933.83(B) requires any law-enforcement agency that conducts

live lineups and photo lineups to adopt minimum procedures for conducting the

lineups.5 “Unless impracticable, a blind or blinded administrator shall conduct the

live lineup or photo lineup.” R.C. 2933.83(B)(1). One manner in which to ensure

an administrator is “blind” or “blinded” is to conduct the photo lineup using a

5 R.C. 2933.83(A) contemplates that the “[e]yewitness” and “investigating officer” are two separate individuals. Importantly, under the facts presented, Dep. Danmeyer is both the “[e]yewitness” and the initial “investigating officer” at the crime scene.

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“folder system,” wherein a suspect's photograph, five “filler” photographs, and four

blank photographs are individually placed in separate folders, marked 1 through 10,

and shown in random order to the witness. See R.C. 2933.83(A)(6) and (B)(1).

“When evidence of a failure to comply with any of the provisions of this section *

* * is presented at trial, the jury shall be instructed that it may consider credible

evidence of noncompliance in determining the reliability of any eyewitness

identification resulting from or related to the lineup.” (Emphasis added.) R.C.

2933.83(C)(3).

{¶30} We note that Williams’s trial counsel did not file a motion to suppress

eyewitness identification under R.C. 2933.83(C)(1) or object to testimony regarding

the in-court or out-of-court identifications of Williams at trial. Importantly, a jury

instruction pursuant to R.C. 2933.83(C)(3) was never requested. Thus, because

Williams did not perfect this issue at the trial court level, he has forfeited all but

plain error under Crim.R. 52. See State v. Griffin, 9th Dist. Summit No. 28829,

. Crim.R. 52(B) provides in its pertinent part “[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought

to the attention of the court.”

{¶31} We begin by addressing Williams’s argument that his due-process

rights were violated when the trial court permitted Dep. Danmeyer to testify

regarding his identification of Williams via the photo lineup. Because we discussed

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the majority of Dep. Danmeyer’s testimony in Williams’s second assignment of

error, and for the sake of brevity, we incorporate that testimony by reference and

need only address evidence elicited from Dep. Danmeyer after the suspect evaded

apprehension.6

{¶32} Relative to this assignment of error, Dep. Danmeyer testified (that

after the suspect eluded him) he focused his investigation on the perimeter of the

residence and the suspect’s vehicle. (Id. at 230-239). Dep. Danmeyer testified that

he collected evidence from the suspect’s vehicle to identify the suspect. (Id. at 240).

He testified that Dep. Gresham, who was also present on scene, brought it to his

attention that a cell-phone (found in the vehicle) belonged to Williams. (Id.).

Thereafter, Dep. Danmeyer testified that Patrolman Brittany Wyerick obtained a

photograph of Williams (from the Lima Police Department’s records) and after

viewing the image and information related to the image, he identified Williams as

the person who fled from him. (Id. at 240-241). Moreover, Dep. Danmeyer testified

that he saw Williams’ face-to-face prior to his flight, was able to describe his height

and weight, and that it is his job to be observant. (Id. at 252-254, 257-258, 270);

(State’s Exs. 12, 13).

{¶33} Williams’ argues that the identification process employed by law

enforcement deprived him of due process. We disagree. The record supports that

6 Notably, Dep. Danmeyer identified William’s as the driver of the suspect vehicle in open court. (Id. at 226).

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Dep. Danmeyer was involved in a rapidly unfolding investigation after Williams’s

flight from the scene. Dep. Danmeyer’s investigation led him to a photograph of

Williams by virtue of his personal observations of Williams along with additional

evidence found in the vehicle. The record is void of any evidence that Dep.

Danmeyer’s out-of-court identification of Williams was based on anything other

than his personal observation of Williams at the crime scene. Thus, his argument

as to the out-of-court identification (on January 3, 2019) is without merit.

{¶34} Next, William’s argues that the procedures for Dep. Danmeyer’s photo

lineup were impermissibly suggestive, and thus should have been excluded.

Importantly, the photo array including Williams was never offered into evidence at

trial. Moreover, William’s concedes that “[i]n this case the photo array

administrations are not in the record so there [was] no opportunity for the [trial

c]ourt to review the procedure.” (Appellant’s Brief at 21-22). Consequently, and

because Williams fails to cite any evidence that state actors (in this instance law

enforcement) supplied suggestiveness during the photo lineup, William’s has failed

to establish undue suggestion in the identification process.

{¶35} Accordingly, Williams’s third assignment of error is overruled.

Assignment of Error No. I

The Trial Court Committed Error Prejudicial To The Defendant By Improperly Excluding Two African-American Jurors For Cause Over The Objections Of The Defendant.

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{¶36} In the first assignment of error, Williams argues that the trial court

prejudiced him by excluding two African-American jurors for cause (over

objection), and that the trial court did not permit his trial counsel to rehabilitate the

challenged jurors before they were excused.7 For the following reasons, we

disagree.

Standard of Review

{¶37} “‘[T]he determination of whether a prospective juror should be

disqualified for cause is a discretionary function of the trial court. Such

determination will not be reversed on appeal absent an abuse of discretion.’” State

v. Allsup, 3d Dist. Hardin No. 6-10-09,

(Jan. 31, 2011), quoting

Berk v. Matthews,

(1990). “This is so because a trial court

is in the best position to assess the potential juror’s credibility.”

“Accordingly,

the trial court’s determination will be affirmed absent a showing that the court’s

attitude is arbitrary, unreasonable, or unconscionable.”

citing

.

Analysis

7 Williams’s appellate counsel further argues that that his trial counsel failed to “correctly” frame his objection, which he avers constitutes ineffective assistance of trial counsel. (Appellant’s Brief at 13). Besides this singular sentence, Williams’s appellate counsel advances no argument in support of his contention nor did he cite to any portion of the record. Considering Williams did not take the time to support his argument even in the most basic of terms under App.R. 16(A)(7), we decline to address Williams’s averment as it relates to his ineffective-assistance-of-counsel claim under App.R. 12(A)(2) under this assignment of error. Moreover, he directs us to an argument that is not contained within the four corners of his brief as the issues he raises in his fourth assignment of error are related to trial counsel’s failure to file a pretrial motion to suppress the in-court identification and the timeliness of trial counsel’s oral objection to the trial courts excusal of the two jurors and not the framing of the objection itself.

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{¶38} Juror challenges “for cause” are governed by Crim.R. 24(C) and R.C.

2945.25. State v. Triplett, 5th Dist. Stark No. 2013CA00209,

,

, ¶ 30. In this case, William argues that the trial court abused its

discretion by excusing two African American jurors “for cause”. Here, we must

first determine whether Williams preserved this error for our review. At trial,

Williams did not object to the trial court’s excusal of Thomas “for cause” as a

prospective juror contemporaneous with the trial court’s excusal. (Oct. 15, 2019 Tr.

at 106-107). Williams’s counsel did, however, timely object to the excusal of

Watkins. (Id.). As such, we apply the plain-error rule to our analysis of Williams’s

challenge to the excusal of Thomas and the abuse-of-discretion standard to his

challenge to Watkins.

{¶39} As to Williams’s “for cause” argument of the prospective juror,

Thomas, Crim.R. 24(C)(14) provides: “A person called as a juror may be challenged

for the following causes: That the juror is otherwise unsuitable for any other cause

to serve as a juror.” R.C. 2945.25(O) likewise provides: “That [s]he otherwise is

unsuitable for any other cause to serve as a juror.” Similarly to Crim.R. 24(C) and

R.C. 2945.25, R.C. 2313.17(B)(9) provides: “[t]he following are good causes for

challenge to any person called as a juror: That the person discloses by the person’s

answers that the person cannot be a fair and impartial juror or will not follow the

law as given to the person by the court.” Here, the record reveals that after inquiry

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by the State, the trial court, and Williams’s trial counsel, Thomas expressed

uncertainty as to whether she would be able to fairly and impartially determine the

facts of this case based on her religious beliefs. (Oct. 15, 2019 Tr., Vol. I, at 50-

56). Consequently, the trial court excused her “for cause”, without objection. (Id.

at 56, 106-107). Importantly, race played no role in the trial court’s excusal “for

cause”. Accordingly, we find no plain error under the facts presented as to the trial

court’s excusal of Thomas “for cause”.

{¶40} Next, we turn to Williams’s challenge to the second prospective juror

at issue, Watson. (Id. at 74-76). During voir dire, Watson indicated that he may

have a lack of confidence in law enforcement based on his prior experiences with

law enforcement in Lima. (Id. at 75). Importantly, Watson acknowledged a

generalized bias against the criminal-justice system as a whole, and his

unwillingness to set those experiences aside. (Id. at 76). After voir dire by the

State, Williams’s trial counsel, and the trial court, Watson held firm to his inability

to put aside his prior experiences involving law enforcement in assessing witnesses

in the instant case. (Id. at 82). Consequently, the trial court excused Watson for

cause based upon his answers to questions, not his race. (Id.). See Crim.R.

24(C)(14); R.C. 2945.25(O); R.C. 2313.17(B)(9). Hence, we cannot say that the

trial court’s attitude in excusing Watkins for cause was arbitrary, unreasonable, or

unconscionable, and thus, constituted an abuse of discretion.

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{¶41} Accordingly, Williams’s first assignment of error is overruled.

Assignment of Error No. IV

The Trial Counsel For The Defendant Was Ineffective And Therefore Violated The Defendant’s Right To Effective Assistance Of Counsel Pursuant To The Sixth And Fourteenth Amendments Of The United States Constitution And Article One Section Ten Of The Ohio Constitution.

{¶42} In his fourth assignment of error, Williams argues that his trial counsel

was deficient in his performance by failing to file a pretrial motion to suppress the

in-court identification (of Williams) by Dep. Danmeyer and his trial counsel’s

“untimely” objection resulting in a limitation on this court’s ability to review the

claimed error.

Standard of Review

{¶43} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole,

(2001), citing Strickland v. Washington,

,

(1984). In order to show trial counsel’s conduct was

deficient or unreasonable, the defendant must overcome the presumption that

counsel provided competent representation and must show that counsel’s actions

were not trial strategies prompted by reasonable professional judgment.

. Counsel is entitled to a strong presumption that all decisions fall within the

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wide range of reasonable professional assistance. State v. Sallie,

(1998), citing State v. Thompson,

(1987). Tactical or strategic

trial decisions, even if unsuccessful, do not generally constitute ineffective

assistance. State v. Carter,

(1995). Rather, the errors

complained of must amount to a substantial violation of counsel’s essential duties

to his client. See State v. Bradley,

(1989), quoting State

v. Lytle,

(1976), vacated in part on other grounds, Lytle v.

Ohio,

,

(1978).

{¶44} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04,

, quoting

, citing

. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’”

quoting Bradley at 142

and citing

.

Analysis

{¶45} In our review of Williams’s brief as it pertains to this assignment of

error, we find serious and fatal deficiencies therein. Namely, Williams fails to argue

how his trial counsel was deficient or unreasonable in his performance by failing to

file a motion to suppress Williams’s in-court identification and how Williams was

prejudiced by such a deficiency. Moreover, Williams fails to direct us to any

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citations to the record to support his argument. Accordingly, we decline to address

his fourth assignment of error on the basis he has failed to comply with App.R.

12(A)(2) and App.R. 16(A)(7).

{¶46} Next, Williams argues that his trial counsel’s untimely objection (as

to the “for cause” excusal of the prospective jurors Thomas and Watkins) supports

his claims of ineffective assistance of counsel. Nevertheless, this portion of his

fourth assignment of error is rendered moot in light of our determination of

Williams’s second assignment of error. See App.R. 12(A)(1)(c).

{¶47} Accordingly, and for the reasons set forth above, Williams’s fourth

assignment of error is overruled.

{¶48} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

PRESTON and SHAW, J.J., concur.

/jlr

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