Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas No.
T. Deters, Hamilton County Prosecuting Attorney, and Judith
Anton Lapp, Assistant Prosecuting Attorney, for
Farrish Law Firm and Michaela M. Stagnaro, for
Following a jury trial, defendant-appellant Lamont Fernando
Lee was found guilty of aggravated robbery and robbery. The
trial court merged the robbery charge with the
aggravated-robbery charge and sentenced Lee to eight years.
This appeal followed.
Jeremiah Anderson and his wife responded to a Craigslist ad
selling two iPhones. They agreed to meet the seller at an
address on Bluelark Drive in Colerain. Anderson drove with
his family to the address and got out of his truck. His
stepdaughter, T.T., watched from the back seat on the
driver's side. Two young men approached Anderson and one
pulled out a gun. He shoved the gun into Anderson's groin
area and demanded money. Anderson gave them the cash he had
brought for the iPhones, and then the two assailants ran into
a wooded area behind a nearby house. Anderson instructed his
wife to dial 911. He and his family met the police to
complete a police report. Then, Anderson started driving
around the neighborhood slowly, and T.T. saw one of the
robbers wearing different clothing in a nearby park. Anderson
drove by the park again to make sure and called the police.
Anderson met the police at a nearby store.
The police brought two suspects to the store separately.
Anderson stated that the first suspect was not involved. Both
Anderson and T.T. identified the second suspect as one of the
robbers. That suspect was Lamont Lee. Officer Eric Renner
read Lee his Miranda rights and collected two cell
phones in Lee's possession. Officer Renner gave those
phones to Detective David Hubbard.
Detective Hubbard interviewed Lee later that day. After
obtaining a search warrant for the contents, Detective
Hubbard recovered photos of a green iPhone 5C from Lee's
phone. He testified that the scratches on the phone in the
photo on Lee's phone matched the phone depicted in the
Craigslist ad, except for a small mark on the photo that did
not appear on the Craigslist phone. Detective Hubbard also
found a photo of an unidentified man holding a handgun.
Anderson testified that this gun looked similar to the gun
used in the robbery. Additionally, Detective Hubbard located
a note that had been saved approximately two hours before the
robbery. The note appeared to be rap lyrics about robbery and
Lee was indicted in October 2014 for a violation of R.C.
2911.01(A)(1), aggravated robbery, with gun specifications,
and for a violation of R.C. 2911.02(A)(2), robbery. Lee's
case proceeded to a jury trial in October 2015. At the
conclusion of the trial, the jury found Lee guilty of robbery
and aggravated robbery, but found he did not have or use a
firearm in the commission of the aggravated robbery. The
court merged the robbery count with the aggravated-robbery
count and imposed an eight-year prison sentence. Lee now
The Prosecutor's Use of Irrelevant and Prejudicial
In his first assignment of error, Lee argues that the trial
court improperly admitted a photo and a note from Lee's
phone. The photo contained an unidentified individual holding
a gun taken on an unidentified date. The note was typed into
the "Notes" section of the phone about two hours
before Anderson was robbed and included statements about
trying to get money and looking in someone's pockets or
Lee first argues that the photograph and rap lyrics lacked
probative value. He claims that, even though the photograph
was found in his phone, there was no evidence that he had
taken the photograph, the person in the photograph was never
identified, the gun was never identified as the weapon used
in the robbery, and the detective had admitted that the rap
song was not evidence of Lee's guilt in the robbery. Lee
further claims any probative value this evidence carried was
substantially outweighed by the risk of unfair prejudice and
inadmissible "other acts" evidence. See
Evid.R. 403 and 404(B).
"The admission or exclusion of relevant evidence rests
within the sound discretion of the trial judge."
State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,
971 N.E.2d 865, ¶ 108. An appellate court should not
disturb a trial court's decision to admit evidence unless
it has clearly abused its discretion and the defendant has
been materially prejudiced as a result. State v.
Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63
N.E.3d 93, ¶ 61, quoting State v. Issa, 93 Ohio
St.3d 49, 64, 752 N.E.2d 904 (2001). An abuse of discretion
constitutes more than a mere error of law or judgment;
instead, it means that a trial court's decision was
unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
Relevant evidence is "evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." Evid.R. 401.
Here, the assistant prosecuting attorney asked whether the
gun in the photo looked similar to the gun used in the
robbery, and Anderson said it did. Immediately before
entering that photo, the assistant prosecuting attorney
admitted a different photo depicting Lee's accomplice,
Caronta Lackey, holding a gun. Anderson testified that that
photo appeared to have been taken in the same location as the
robbery and included the same gun. The assistant prosecuting
attorney then used that testimony to highlight the fact that
it was Lee, not Lackey, who had actually used the gun during
the robbery. Although the photo of the unidentified man may
have had limited probative value, in conjunction with the
first photo and witness testimony, it tended to lend
credibility to the assistant prosecuting attorney's
theory that Lee had access to a gun and possessed a gun
during the robbery.
Detective Hubbard testified that Lee's phone contained a
note seemingly containing rap lyrics, which he read aloud
during direct examination. The note included several
references to robbery and needing to get money. Detective
Hubbard stated that the note was dated October 25, 2014, at
3:45 p.m. After Detective Hubbard read the note to the jury,
the assistant prosecuting attorney clarified that the note
had been created within two hours before Anderson was robbed.
The subject of the note and its temporal proximity to
Anderson's robbery is sufficient to demonstrate its
Lee next argues that the photo and note were unfairly
prejudicial. Relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury. Evid.R. 403. The trial court is vested with broad
discretion when weighing evidence under Evid.R. 403.
State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215,
954 N.E.2d 596, ¶ 87. "A reviewing court will not
interfere absent a clear abuse of that discretion."
State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853,
854 N.E.2d 150, ¶ 171.
"Logically, all evidence presented by a prosecutor is
prejudicial, but not all evidence unfairly prejudices a
defendant." State v. Wright, 48 Ohio St.3d 5,
8, 548 N.E.2d 923 (1990). Relevant evidence may be excluded
only when the risk of unfair prejudice, confusion of the
issues, or misleading the jury substantially
outweighs its probative value. Evid.R. 403. Lee argues that
the only purpose the photo could have had was to demonstrate
that Lee may have associated with individuals who possessed
guns and to imply that Lee committed this robbery because he
had a photo of someone with a gun on his phone. But at no
point did the assistant prosecuting attorney suggest that
that is what the photo demonstrates. The photo was found on
Lee's personal cellphone, and Anderson stated that the
gun looked similar to the gun Lee had used to rob him. Lee
contends that the note was prejudicial because it used the
word "rob, " which the assistant prosecuting
attorney used to show that Lee wanted to commit a robbery
that day. However, the very nature of the prejudice of which
Lee complains-his potential motive-is the same as its
After reviewing the disputed evidence and the record, we
cannot say that the trial court's decision to admit the
photo and note was arbitrary, unreasonable, or
Lee also asserts that the photo and note constitute improper
"other acts" evidence. See Evid.R. 404(B).
However, he did not object to the note at all and thus did
not object to the photo on that basis. He has therefore
forfeited all but plain error on appeal. See Crim.R.
52(B); State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, ¶ 22-23. Lee does not
explain how this evidence constitutes impermissible
"other acts" evidence. He has therefore failed to
meet his burden to demonstrate error, let alone plain error.
We overrule the first ...