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State v. Lavender

Court of Appeals of Ohio, First District, Hamilton

December 27, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ANDREW LAVENDER, Defendant-Appellant.

          Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-1700948

         Judgment Appealed From Is: Affirmed

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Wendy R. Calaway, for Defendant-Appellant.

          OPINION

          Mock, Presiding Judge

         {¶1} In eight assignments of error, defendant-appellant Andrew Lavender claims that he was improperly convicted of aggravated murder and sentenced to life in prison without the possibility of parole. For the reasons set forth below, we disagree with those assertions and affirm the judgment of the trial court.

         The Killing of Ceran Lipscomb

         {¶2} During the evening of August 1, 2014, Ceran Lipscomb was shot and killed by an individual using a .22-caliber weapon. A man named Ramon Davis was using a portable restroom in the area when the shots were fired. He fled from the restroom and called 911. He told the operator that he had seen someone running from the body. He described the man as between 40 and 50 years old, five feet eight inches tall, and slender. He said that the man had on purple jogging pants, a black top, and a cap, and had a mustache or goatee. Another individual, 15-year-old Dennis Coulter was outside his apartment with his cousin when the incident occurred. He told police that he saw the shooter run away from the body and down an alley behind the apartment buildings. He said he saw the man two different times: once as he was running from the body, and again as he was running in the alley behind the apartments. Coulter told police that he had seen the man before in the neighborhood but did not know him or know his name.

         {¶3} A few days after the shooting, Coulter worked with a sketch artist to generate an image of the shooter's face. Police had little more to go on until Domingo Johnson was arrested on a number of drug-related charges. He contacted the investigating detectives and informed them that he had information on the Lipscomb killing. He told police that shortly before the killing, he was in an apartment when he overheard a young man he knew as "Shooter" bragging about how he was taking a hit on "Little Charlie's Brother." The name "Little Charlie" was a name associated with Lipscomb's brother. He also said that Shooter had a small caliber revolver. Using social media, detectives were able to connect the name "Shooter" with defendant-appellant Andrew Lavender. Johnson identified Lavender as the person he overheard talking about the hit. The police requested a photo array from the Hamilton County Juvenile Court, since Lavender was 16 years old at the time, and presented the photo array to Coulter. Coulter was shown the images one at a time. As Coulter was going through each image, he initially said that another man pictured looked like the shooter. As he continued though the rest, however, he then reached Lavender's picture and positively identified him.

         {¶4} Lavender was arrested and police gained access to his cellular phone data. Of significance, police retrieved thousands of text messages from his phone going back months before the shooting. The vast majority of these text messages were introduced at trial by the state, for the purpose of attempting to show Lavender's growing desperation with regard to money, which lead Lavender to agree to kill Lipscomb for hire. After conducting a hearing on the matter, the trial court admitted the vast majority of these text messages for the limited purpose of allowing the state to show Lavender's motivation for the killings in his growing desperation with regard to money during the months before Lipscomb's death.

         {¶5} Because Lavender was 16 when he committed the offense, his case was first brought in Hamilton County Juvenile Court, in the case numbered 14-7191. The state filed a motion to have Lavender bound over to the adult common pleas docket. After determining probable cause, the juvenile court judge failed to conduct an amenability hearing, believing that the bindover to the adult court was mandatory. Lavender was then indicted in the case numbered B-1405471, and charged with one count of aggravated murder, in violation of R.C. 2903.01(B), and one count of aggravated murder, in violation of R.C. 2903.02(B). Both counts included firearm specifications. The case proceeded for some time, including the briefing, arguing, and a decision on a motion to suppress the results of the photo array. The case remained pending for three years before the problem with the bindover was discovered. The state then dismissed the case and refiled in the juvenile court. The juvenile court conducted new hearings, this time conducting an amenability hearing. At the conclusion of those hearings, the case was again transferred to the general division of the common pleas court. Lavender was again indicted for two counts of aggravated murder. The case proceeded to a two-week jury trial, after which Lavender was found guilty on both counts and all specifications. On the first count, Lavender was sentenced to life in prison without the possibility of parole, with an additional three years for the gun specification. The second count was merged with the first. In eight assignments of error, Lavender now appeals.

         Admission of Evidence

         {¶6} In his first assignment of error, Lavender claims that the trial court erred when it admitted certain evidence. In particular, he claims that the admission of a photograph from Facebook showing him posing with weapons was improper. He also claims that the admission of his text messages was improper. And he finally claims that it was improper for the court to allow an officer to testify about how contract killings are conducted.

         The Photograph

         {¶7} In the photograph Lavender challenges, he is seen pointing one gun at the camera while holding another gun at his side. Neither side has argued that the gun Lavender is pointing at the camera is related to the case. But the state argues that the gun in his other hand appears to be a small-caliber revolver. Lipscomb was killed by a .22-caliber weapon, and the state theorized that the weapon was a revolver because no casings were found at the crime scene A revolver would retain its bullet casings in its cylinder, while a semi-automatic pistol would eject the casing after firing each round. The state's expert could not confirm that the shots were fired from a revolver but did say that the physical evidence would be consistent with that. He said that it was "very common to find .22 caliber ammunition chambered in revolvers." When shown the photograph, he said that "based on what I can see it certainly appears to be most consistent in physical shape with a revolver simply because of the width versus the length, and it looks like basically a small-sized handgun." He further said that "it looks like a very small revolver and you will find a lot of .22 caliber handguns in a small sized frame handgun."

         {¶8} Prior to the testimony from the expert about the weapon, the trial court conducted a hearing. Initially, there were three photographs proposed for admission by the state. The other photographs included different weapons. Citing State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, Lavender argued that the photographs that showed Lavender with another weapon and another person holding a revolver with Lavender present were unduly prejudicial. After hearing the argument, the trial court allowed only the photograph of Lavender with the revolver in his hand concluding, "assuming a proper foundation is laid and relying on the prosecutor to establish the fact that Mr. Lattyak would testify that it was a revolver and that it was a .22, and if he's shown the photograph of 16(A), which includes the revolver in the hand of what purports to be the defendant, that that [sic] would be admissible." During the testimony, clarifying rulings were made. First, the trial court allowed the state to continue questioning about the photograph "if the foundation was laid or if it was at least established that the revolver could have been the type consistent with .22 bullet that was recovered [sic]." The trial court also ruled that when the witness seemed hesitant to identify the type of handgun in the photograph, the state could lay "additional foundation * * * such that if the expert would say that the revolver would be consistent with the type of gun used for the bullet recovered."

         {¶9} The admission of evidence is within the sound discretion of the trial court. See State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 61. We will not disturb a trial court's ruling on evidentiary issues on appeal absent an abuse of discretion and proof of material prejudice. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 181; State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 116.

         {¶10} The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Body Power, Inc. v. Mansour, 1st Dist. Hamilton No. C-130479, 2014-Ohio-1264, ¶ 28, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 291, 450 N.E.2d 1140 (1983). Most cases will fall within the "unreasonable" prong of discretionary decisions, as few judges issue decisions that are unconscionable or arbitrary. AAAA Ent., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). A decision is unreasonable if

there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.

Id. "An abuse of discretion implies that a decision is both without a reasonable basis and is clearly wrong." Aetna Better Health, Inc. v. Colbert, 10th Dist. Franklin No. 12AP-720, 2012-Ohio-6206, ¶ 21, citing Hartzog v. Ohio State Univ., 27 Ohio App.3d 214, 500 N.E.2d 362 (10th Dist.1985).

         {¶11} The state's theory, based on the lack of casing at the scene, was that the .22-caliber bullet that killed Lipscomb came from a revolver. Further, Coulter testified that he had seen the shooter wrap the small handgun in his shirt as he ran away, indicating that a rifle was not involved. The expert witness testified that the photograph was consistent with a .22-caliber handgun, and Johnson testified that he had seen Lavender with a small revolver prior to the shooting.

         {¶12} "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). Courts have said that the admission of a photograph of a defendant with a weapon is appropriate when it is similar to one seen used in a crime. See, e.g., State v. Lee, 1st Dist. Hamilton No. C-160294, 2017-Ohio-7377, ¶ 12. Similarly, the trial court here allowed the admission of the photograph of a handgun that was similar to the type of weapon that law enforcement believed was used in the case and had been tied to Lavender through Johnson. Lavender was able to then attack whether that asserted connection was credible, which he did through counsel's effective cross-examination and closing argument.

         {¶13} In this case, we cannot conclude that the decision of the trial court was "without a reasonable basis" or "clearly wrong." We conclude that the trial court had a reasonable basis to determine that the photograph was relevant, admissible, and that the probative value of the photograph was not substantially outweighed by undue prejudice.

         Text Messages

         {¶14} Lavender makes several intertwined arguments related to the text messages that were admitted at trial. He claims that the admission of the entire record of the text conversations covering the period of several months prior to the killing was improper as "hundreds of the texts were completely irrelevant." He then argues that some of the text messages violated Evid.R. 403, and others violated Evid.R. 404. In order to analyze this portion of his argument, however, we must give a detailed account of how the text messages were handled during the course of the trial.

         {¶15} Detective Gregory Gehring was the state's witness through whom the text messages were admitted. He was the officer who worked with employees of Cincinnati Bell to obtain the records, though the records custodian from Cincinnati Bell testified for authentication purposes. It is clear that both sides understood that the admission and use of these text messages was going to be a significant issue in the case from an evidentiary perspective. So much so that the trial court held a hearing before Gehring testified to try and determine as many of the legal issues as possible prior to the time the exhibits would be admitted.

         {¶16} The text messages were admitted in various forms. First, there was an overall set of two large binders which contained every text message from or to Lavender from April 26 to August 21, 2014 (hereinafter "the comprehensive set"). In addition to the comprehensive set, the state also had a smaller binder of messages that law enforcement was able to retrieve from the cell phone's memory (hereinafter "the memory set"). All of these messages were also contained in the comprehensive set. And in addition to that, the state had a series of specific exhibits (hereinafter "the 15 series") that it had pulled from the comprehensive set for purposes of specific presentation to the jury during the trial.

         {¶17} As the hearing began, the trial court pressed the state on the need to admit the comprehensive set to the jury if it was planning on focusing on a small fraction of the total. The state responded that "we were going to do that because it's the records, and then from that book we were going to tell the jury we have those records, which are pages out of that book on different dates indicating different conversations." The state later said that "the problem, too, with these records, Judge, is he's making conversations with different people that have different information about him. When he's talking - - and so if you don't take this stuff as a whole, it's easier to put out of context what the defendant is saying and the import of it." The state also was concerned that if it only offered the individual messages without the context, Lavender could argue that things had been left out and argue what the absent messages might have held.

         {¶18} Lavender began the hearing arguing generally that the comprehensive set was objectionable because many of the messages were from several months before the murder, and that they lacked relevance for that reason. He then argued that, for some of the messages, the probative value was substantially outweighed by the prejudicial effect they would have on the jury. Further, Lavender highlighted the danger that, as these text messages related to illegal activity and other things that cast him in a negative light, there was a danger that he would be convicted not on the evidence, but because the jury simply reached the conclusion that he was a bad person who did bad things.

         {¶19} The state assured the trial court that the evidence, largely, was not being offered as direct evidence of Lavender's guilt. But rather the evidence was being offered to demonstrate Lavender's motive to take a murder-for-hire contract-the fact that he was increasingly desperate for money. The state argued:

We're showing it so that the jury has in their minds what's going on in the defendant's life, what he's talking about that's going on in his life that's a motivation for him to do what he's got to do.
And you can kind of see with all of them together how he moves from, you know, he needs money so bad he's going to rob people. He needs money so bad he's going to rob people. [sic] That's not panning out for him. He goes to his dad. His dad's not going to give him money.
He finally gets to the point where he's going to take somebody's life. And that goes to prior calculation and design. He starts thinking about it.
You can see in these texts where he's talking about that and he's talking about the people that are trying to talk him out of it. He's not worried about it. He's got grown men afraid of him. He's done it before, he'll do it again.
So all of this is important, extremely important, for the State in being able to properly put into perspective the defendant's intent and motive and some of the other things that are set forth in 404(B).
It certainly lays the groundwork for the jury to understand the situation the defendant found himself in and what his motivation was for doing this.

         {¶20} In response, Lavender began by arguing that much of what was being presented violated Evid.R. 403.

There is no question that much of this what they talked about is far more prejudicial than it is probative. A lot of it dates back four or five months prior to. A lot of it is talking about things that is [sic] inconsistent with their theory. And it's far more prejudicial than it is probative. It's talking about different acts, shooting into cars, and so forth. Again, that's extremely prejudicial; far more prejudicial than it is to show that he had a gun and he uses a gun.
That's their reason for some of this coming in. So, Judge, again, the rule is what it is; although relevant, when it's substantially outweighed - - and that's what we're dealing with here; a cumulative exhibit that is far more prejudicial than it is probative.

         {¶21} The problem with excising portions of the comprehensive exhibit became clear as the hearing continued. After discussing a series of messages in which Lavender claimed that people were trying to kill him (some before the shooting, some after), the parties and the court turned to a text message in which Lavender had claimed to have shot into a car with people in it. The trial court expressed concern with that message, as it did not fit neatly into the state's theory of showing Lavender's increasing desperation for money. The state responded that it would not strongly object if the court did not admit that text. At that point, counsel for Lavender interjected:

Well, Judge, what I'm concerned about is - - and this is why I think the whole exhibit is a problem. If we pull out the shooting in the car, which I brought to the Court's attention, that may be the thing that he did why [sic] people want to kill him.
And that's why the text messaging and it's trying to speculate on what they're talking about is a problem, because that's exactly what you begin to do. And, again, I believe from looking at it and reading it that that could very well be it.

         This conversation was resumed when that particular text message came up during the court's review of the individual text messages in the 15 series. When it came up during the review, the state suggested it was going to withdraw it based on the previous discussion. At that point, counsel for Lavender interjected, saying

Well, Judge, at this point, if the Court - - because at this point I don't think the Court has decided to exclude anything, if the Court is going to allow all of the rest of it in we just ask that this be included too because, again, it's our belief that this may be what he's talking about people may want to kill him for [sic].

         {¶22} Although never directly stated, it appears that the trial court determined that the safer approach was to allow the comprehensive exhibit in and allow the jury to use it to determine the context of the messages from the 15 series, if needed. As the court said, "That's to be argued in front of the jury where they decide the quality of it." The court advised counsel to review the comprehensive exhibit that evening so that any problematic messages could be addressed and, if need be, redacted.

         {¶23} Having decided the general issue of the comprehensive exhibit, the trial court then went on to individually consider the messages that would be published to the jury during trial in the 15 series. After discussing the texts generally, the state gave an overview of the 15 series, which were the texts to which the state would be directing the jury's attention during the trial. The state summarized that the texts, beginning in April, show that Lavender needed money. Initially, Lavender is complaining about not having money, asking people for money, and asking if people know of anyone he can rob. The state then said that "at some point it switches. In about June it switches from trying to rob people to becoming a hitman."

         {¶24} One message at a time, the trial court heard argument from counsel on each message from 15a through 15qq. Many of the messages were admitted for the limited purpose of showing motive or intent. Some of the messages, closer in time to the shooting and purporting to speak directly about the shooting, were allowed for all purposes. But there were also several messages that the court decided fell outside the Evid.R. 404(B) exception. The one message regarding shooting the car would have been excluded, had Lavender not withdrawn his objection to it. Another text message that just made a reference to guns without any reference to money or being in need was excluded. Another message about having adults who were afraid of him was excluded.

         {¶25} The first question for this court to consider is the admission of the comprehensive set. In his argument to this court, Lavender has argued generally that the admission of the comprehensive set was error because hundreds of texts were irrelevant, and many were prejudicial. But Lavender has not pointed to any text messages in the comprehensive set that were problematic other than messages that were also in the 15 series. Considering the comprehensive exhibit as a whole, Lavender has failed to argue how its admission prejudiced him-distinct from the prejudice he claims to have suffered from the messages in the 15 series. Without a showing of prejudice, we will not conclude that claimed error in the admission of evidence requires reversal. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 74; see also City of Toledo v. Gorney, 6th Dist. Lucas No. L-94-152, 1995 WL 136495, *1 (Mar. 31, 1995) (no reversal when part of testimony was relevant and part was irrelevant but not prejudicial).

         {¶26} Other than what Lavender argues in the 15 series, and what our independent review of the exhibit has confirmed, there was nothing overtly prejudicial in the text messages in the exhibit. There were several messages that were not relevant, as one would expect by taking the entirety of the text message history from a teenager for a period of six months. But the trial court considered this issue and discussed the matter with the parties. The state's concern with not giving the jury the comprehensive exhibit was that it would be accused of cherry-picking certain texts, taking them out of context, and ignoring other information. Without the context of the whole exhibit it would be a difficult assertion to rebut. Even Lavender's counsel became concerned when the trial court began to suggest that certain messages be excised, as it would not allow Lavender to argue from that same context. Given this situation, and the manner in which the exhibits were presented, we cannot say that the trial court did not have a reasonable basis for allowing the exhibit in, nor can we say that the trial court was clearly wrong. Coupling this fact with the previous conclusion that the extraneous texts were at worst simply irrelevant, we conclude that the trial court did not abuse its discretion when it allowed the admission of the comprehensive exhibit.

         {¶27} We now address the specific concerns regarding the messages cited by Lavender in his brief. The Ohio Supreme Court has directed courts to conduct a three-step test to consider whether other-acts evidence is admissible. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 19. "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. The second 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 [it] is presented for a legitimate purpose, such as those stated in Evid.R. 404(B)." Id. "The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice." Id.

         {¶28} We begin first with the relevance of the 15 series messages. Evid.R. 401 provides:" 'Relevant evidence' means 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." At issue in this case was Lavender's motive to kill Lipscomb, which the state theorized was an increasingly desperate need for money. As the trial court summarized its understanding:

I believe their argument is they're not trying to argue to say he's acting in propensity or character - - has that propensity that's what he's doing. They said they're specifically offering it for other purpose, including motive or intent, to go along the lines of prior calculation or design and it wasn't an accident.
That's under 404(B) and that's specifically one of the - - that's expressly stated as an exception. So I believe their argument is to say there's a man that's willing to - - who's desperate and looking to make money any way he can make money and he's trying to find a way - -except for getting a job. And the way he's willing to do things is he's willing to either rob, do whatever else, and it's escalating to the point where he's willing to kill somebody.

         Motive is generally relevant in all criminal cases since it is assumed that human behavior is prompted by a desire to achieve specific results. State v. Curry, 43 Ohio St.2d 66, 70-71, 330 N.E.2d 720 (1975). In order to show that progression, we cannot say that text messages were irrelevant to establishing motive.

         {¶29} The next argument that Lavender makes is that the text messages were evidence of his character, and that the state was trying to demonstrate that his character was such that he was likely to have killed someone for money. Evid.R. 404(A) states that "evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." "A hallmark of the American criminal justice system is the principle that proof that the accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused's propensity or inclination to commit crime." Id. at 68.

         {¶30} Proving an individual's motivation is seldom a direct process. And while it is not an element of either of the crimes for which Lavender was charged, it was crucial to the state's case. As the Ohio Supreme Court noted, in a murder case where the identity of the killer is shown only by circumstantial evidence, motive becomes an important issue. State v. Franklin, 62 Ohio St.3d 118, 128, 580 N.E.2d 1 (1991), citing State v. Lancaster, 167 Ohio St. 391, 149 N.E.2d 157 (1958).

         {¶31} Often times, this circumstantial evidence of a need for money comes from sources that could otherwise paint a defendant unfavorably. For example, the Ohio Supreme Court has held that a defendant's drug addiction is admissible to prove the defendant's need for money, providing a motive to rob and kill. State v. Henness, 79 Ohio St.3d 53, 61, 679 N.E.2d 686 (1997). The Second Appellate District held that evidence of a civil judgment against the defendant physician was admissible in a prosecution for trafficking in drugs to prove the motive of a need for money. State v. Nucklos, 171 Ohio App.3d 38, 2007-Ohio-1025, 869 N.E.2d 674, ¶ 70 (2d Dist.). And this court has held that evidence of a defendant's gambling habits was admissible to show the defendant's need for money in a case involving theft in office, bribery, and attempted bribery. State v. Ridley, 1st Dist. Hamilton No. C-100301, 2011-Ohio-2477, ¶ 65.

         {¶32} We have reviewed the 15 series of exhibits and have determined that they generally demonstrate the pattern of how desperate Lavender was to make money, and how that need grew over time. In early April of 2014, Lavender texted an individual asking if he knew of someone he could rob. Later that month, he texted his sister asking her if she had any money. In another message, he tells someone that he has no other support and that he's been on his own since he was 11. He relayed that he had been providing for his own needs without being able to rely on his parents. In a text to his father, Lavender berated him for never supporting him, saying that he was tired of holding things in, having to sell heroin and marijuana to get money to support himself, and that his father "ain gtta worry bou me [sic]." May shows that his condition had not improved. On May 9, he asked someone if they knew about someone he could rob. On the 14th, he texted three different individuals asking for money.

         {¶33} In June, Lavender appeared to have had something lined up. On the 15th, he texted someone called Ayana, telling her that he was going to do "sum shit [sic]." When she asked what he had planned, he replied "This dude [sic]." When Ayana presses for details, he says he's "[Fixing to] get [somebody] together [sic]," but then tells her that he probably wasn't going to do it that night, but was just preparing for it.

         {¶34} The following day, Lavender texted her complaining about life on the streets. Ayana tried to encourage him, but he said that he wanted to give up and that so many people wanted him dead. He said he was afraid that he was not going to amount to anything and that, while he was trying "[not] to feed into it," he was starting to believe it. After more attempts to encourage him, Lavender replied that his own father had abandoned him and he had taken a life before and had tried to kill others. He also related a story about how people he had trusted had "set me up n left me fa dead [sic]." When Ayana told him to take a break from all that, he said that "I [be] trying it's hard I [don't] have a mama to call [when] I'm broke I [gotta] do [what] I [gotta] do to put money [in] my pocket [sic]." Ayana tried to tell him that maybe he should try doing something different, but Lavender responded that he had tried "hella times." Ayana suggested that maybe Lavender could apply for a job, but Lavender shoots that idea down "Bay [for real] I'm ok [sic]." After telling Ayana he just doesn't care about life anymore, he concluded by telling her "I'm ok [at least] I [got] my gun:-) [sic]."

         {¶35} That same day, Lavender was texting with another number trying to find someone to rob. The person he was texting had a person in mind, but Lavender wanted to make sure that the target had some money because he didn't "wanna rob him [if] he broke [sic]." The next day, he texted Ayana that he had just found out he had a child, who was two years old. On the 19th and 20th, there was a series of messages between Lavender and another person in which Lavender was trying to get money to "flip."

         {¶36} The text messages took a turn on June 22. Lavender texted Ayana, telling her "I finna catch a body."[1] Testimony by Gehring established that this meant that he was about to kill someone. Ayana desperately tried to talk Lavender out of it, saying that he must not care about his son or nephew, and that he needed to think about what he's about to do. Lavender simply responded that he refused.

         {¶37} The next message in the 15 series was a series of texts from Lavender to someone named Kiara My Queen on July 20-less than two weeks before the murder. He told her that his life had been hard and that he had been providing for himself since he was 12 years old. He recalled an incident when he had been grazed by a bullet and said that "when I was 14 I took two [people's lives]" and that he had shot "hella [motherfuckers] * * * [and] robbed hella [people]." He said he regretted it all. He told her that he remembered going without food and staying outside for days, and that he sometimes didn't want to live anymore and that there was no one to support him. He told the story about how he got kidnapped at age 14 because he had robbed "a dope boy," but that he was let go because his captors feared his older brother. Because he had no one he could count on, he said he had to "do what[ever] it takes to keep money [in] my pocket[, ] shit to wear[, ] and food [in] my stomach [sic]."[2]

         {¶38} Later that day, he told Kiara that he had not eaten since the day before. She told him to get something to eat and go home, but he told her he did not have a home. Then he told her "in a couple weeks or even sooner [than that] I [am going to be playing] with a check [and you're] go[nna] have everything baby * * *." Gehring testified that "getting a check" meant coming into a sum of money. Lavender told her that "we can get a car I'm really [going to] spoil [you] * * *."

         {¶39} On July 21, Lavender sent a text message in which he told Kiara about the time that two girls tricked him into getting into a car by asking for marijuana. Lavender said that some people then tried to pull him into the car, so he pulled out his gun and fired nine times. He said that, while this had happened a month ago, they were now calling him to find out where he was.[3]

         {¶40} The day before the shooting, Lavender sent a message to Kiara saying that he hoped to die and that his life was over. He also told her his phone was about to be turned off for not paying the bill. When Kiara told him to pay the bill, Lavender responded that he could not. He told her that every time he turned around, someone was asking him for money. He said that he had given his mother $230, had given his sister $60, and given the mother of his child $100. He later texted to another person that everything in his life was going wrong.

         {¶41} On the morning of the murder, Lavender received a message that his text messaging had been suspended for nonpayment. The day after the murder, Lavender received a message from Kiara saying "that's why we need a car." He responded that he was going to save up for one, and that he only needed $2500 for a black Cadillac.[4]

         {¶42} A week after the murder, a person named Tauda texted and offered to give Lavender some money on the first of the follwing month. And the texter then asked why Lavender was jeopardizing his family and risking spending his life in jail over "bs." She said that his big brother was already gone and she did not want him to go too. Lavender responded that he had a son to take care of and that he needed some "shit" and he needed "everything" and that he would not settle for less. Tauda responded that he will make things worse if he does something that he will regret later, and that he risked getting locked up.

         {¶43} On August 14, there was another exchange between Lavender and another number. Lavender told the person that his time was running out. He said that people wanted him dead and that they were trying to find him through social media. He said that karma was a "mfer" and that he had this coming because he chose this life and that there was nothing he can do but "fight back and let it happen." After a few more exchanges, Lavender said that he was going to die soon and that he didn't want anyone crying for him. He said he was trying his best to keep calm. He concluded by saying that, every night, he "regret it i wish it never happened. [sic]"[5]

         {¶44} Another series of messages from that day between Lavender and someone named Duke were shown to the jury. In that exchange, Lavender wished the man good luck in his boxing career and said that he wasn't going to be around much longer, because people wanted him dead. He said that a friend told him that people were looking for him through Facebook, but the friend didn't know them and couldn't tell who they were because "they blocked him or they deleted [their] [Facebook accounts]." Duke offered to stand with Lavender, even if it meant violence. Lavender told him that he was no longer willing to hide or run. Lavender concluded, "Thats wa Im sayin Im goin out like scarface Word!!! ???? [sic]"

         {¶45} The final series of messages, between Lavender and someone named Zyon, were being sent at about the same time as the messages between Lavender and Duke. Lavender began by also telling Zyon that people wanted him dead. He then told Zyon that someone had told him people were trying to find out where he was and trying to find out what "Shooter's" real name was. Zyon promised that, if anyone came after Lavender, they would all "get they head token off [sic]."[6]

         {¶46} Having reviewed these messages, we cannot say that the trial court abused its discretion in allowing the admission of the text messages to show that Lavender was becoming increasingly desperate for money. While alternate arguments can be made as to why a teen would text in the manner that Lavender did, the state's theory of what the text messages represent is not wholly unsupported by the exhibits. The trial court considered this issue at length. It first considered the issue generally in a pretrial motion in limine relating to the texts. It then conducted a hearing on the issue the day before Detective Gehring was to testify about the exhibits. The trial court considered each of the messages in the 15 series and considered their progression. The trial court excluded some messages that had nothing to do with Lavender's need for money or feeling of despair. The trial court concluded that the state's theory could be supported by the messages presented, and that it would be up to the jury to determine whether such an explanation was credible. And as a final gate-keeping measure, the trial court considered the exhibits a third time as each one was addressed by Gehring and admitted into evidence, sometimes holding sidebar conferences to discuss some of the exhibits.

         {¶47} Having determined that the trial court did not abuse its discretion when it determined that the text messages were properly admitted for the purposes set forth in Evid.R. 404(B), we must now determine whether the trial court abused its discretion when it determined that the probative value of the exhibits was not substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury in violation of Evid.R. 403(A).

         {¶48} When the texts were first discussed at trial, the trial court told the jury:

The evidence that is now being introduced is received into the record for a limited purpose to show motive and intent. When you consider this evidence in your deliberations, you are not to use it for any other purpose, including to prove the character of an accused in order to show that the accused acted in conformity with that character.

         {¶49} An instruction regarding the proper use of the text message evidence was given 20 times at various points during the course of the presentation of the messages to the jury.

         {¶50} We conclude that the trial court, after having considered the problems presented with the content of the text messages, fashioned a procedure to minimize the danger that the jury would consider the evidence for improper purposes such that the decision that the admission of the messages did not violate Evid.R. 403(A) was not an abuse of discretion.

         Testimony about Hitmen

         {¶51} In this argument, Lavender claims that the trial court erred when it allowed Detective Gehring to testify as an expert witness on "how contract killings occur." For the reasons set forth more fully in our analysis of Lavender's third assignment of error relating to "expert" testimony of police officers, we conclude that this testimony was properly admitted lay option testimony pursuant to Evid.R. 701. See, e.g., State v. Johnson, 7th Dist. Jefferson No. 13JE5, 2014-Ohio-1226, ¶ 57 (detective's testimony as to gang activity was permissible under Evid.R. 701 based on detective's personal knowledge and experience in the field).

         {¶52} We overrule Lavender's first assignment of error.

         Sufficiency and Weight of Evidence

         {¶53} In his second assignment of error, Lavender claims that his conviction for aggravated murder was based upon insufficient evidence and was contrary to the manifest weight of the evidence. A challenge to the sufficiency of the evidence asks whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all the elements of the crime proven beyond a reasonable doubt. State v. Millikin, 1st Dist. Hamilton Nos. C-030825 and C-030826, 2004-Ohio-4507, ¶ 15. Review of a weight-of-the-evidence challenge, however, requires examining the entire record, weighing all the evidence and reasonable inferences, and considering the credibility of the witnesses to determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way, resulting in a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

         {¶54} The state presented testimony from Coulter that he saw Lavender fleeing from the scene immediately after the shooting. While Lavender was running away, Coulter saw him wrap what appeared to be a small handgun in his shirt. Coulter testified that he knew Lavender from the neighborhood. A composite sketch created from Coulter's account bore a striking resemblance to Lavender, and Coulter was able to pick Lavender's picture out from a photo array. Additionally, Johnson testified that he overheard a conversation in which Lavender claimed he was going to kill Lipscomb for money as part of a contract killing. Johnson also told police that he had seen Lavender with a small revolver. The fact that the police suspected that the weapon had been a small revolver was not public information, and Johnson had not been told this prior to his interview with detectives. Additionally, Lavender's history of text messages demonstrated that he was becoming both increasingly desperate for money and increasingly despondent in general. And then he told someone that he was about to pick up a body, and that soon his money troubles would be over. Within days of the shooting, Lavender's text conversations turned to thinking about purchasing a car.

         {¶55} Admittedly, this was not a "slam-dunk" conviction. But, on this record, there was sufficient evidence to support the jury's verdict, and we cannot say that the jury lost its way when it convicted Lavender of aggravated murder or that his conviction was a manifest miscarriage of justice. We overrule Lavender's second assignment of error.

         Ineffective Assistance of Counsel

         {¶56} In his third assignment of error, Lavender claims that his trial counsel was ineffective for several different reasons and that, as a result, he was denied a fair trial. We disagree.

         {¶57} To prevail on an ineffective-assistance-of-counsel claim, Lavender must demonstrate that counsel's performance fell below an objective standard of reasonableness, and he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel's performance will only be deemed deficient if it fell below an objective standard of reasonableness. Strickland at 688; Bradley at 142. With regard to deficient performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland at 689. In other words, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. A reviewing court must indulge a presumption that counsel's behavior fell within the acceptable range of reasonable professional assistance. Strickland at 689; Bradley at 142. With regard to the second required finding, a defendant is only prejudiced by counsel's performance if there is a reasonable probability that the outcome of the proceedings would have been different but for the complained-of conduct. Strickland at 694; Bradley at 142.

         {¶58} Lavender claims that counsel was ineffective in 16 separate areas. We will address each in turn.

         Voir Dire

         {¶59} Lavender first claims that trial counsel was ineffective for failing to pursue his challenge to the state's preemptory strike of a juror pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He claims that trial counsel erred when he withdrew the challenge "based on the fact that it was the first preemptory challenge." As this court has noted, "the existence of a pattern of discriminatory strikes is not a prerequisite to a prima facie case or to a finding of actual discrimination by the trial court." State v. Walker, 139 Ohio App.3d 52, 56, 742 N.E.2d 1173 (1st Dist.2000); see State v. White, 85 Ohio St.3d 433, 436, 709 N.E.2d 140 (1999).

         {¶60} However, this case is distinguishable from Walker. In Walker, the only argument that the state raised relating to its decision to strike the African-American juror was that since he was the first African-American juror struck and since the state had struck a white juror before that, there had been no pattern established. Walker at 57. In this case, however, the state had valid race-neutral reasons for using one of its preemptory challenges. The prospective juror had indicated that she would have a difficult time following the law and weighing circumstantial evidence. The prospective juror also said that she would not be a good juror.

         {¶61} In a case from the Second Appellate District, the court faced a claim that trial counsel had been ineffective for failing to timely issue Batson challenges to various witnesses. State v. Robertson, 90 Ohio App.3d 715, 720, 630 N.E.2d 422 (2d Dist.1993). In that case, trial counsel had waited until after the jury had been sworn before raising the issue. The court first determined that a prima facie case had been met as the jurors struck by the state were African-American. The court then went on to state that "[t]he only remaining question is whether a timely Batson challenge would have succeeded, i.e., was the Batson challenge meritorious."

         {¶62} Engaging in the same analysis, we conclude that the challenge, while it would have been facially appropriate, would not have succeeded. The record demonstrates that the state had race-neutral reasons for striking the juror. Counsel, while incorrect in his understanding of how a Batson challenge is triggered, was not ineffective for failing to pursue it.

         Opening and Closing

         {¶63} Lavender next cites six instances during the opening remarks and closing arguments of the parties in which counsel was ...


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