Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
Trial No. B-1700948
Appealed From Is: Affirmed
T. Deters, Hamilton County Prosecuting Attorney, and Philip
R. Cummings, Assistant Prosecuting Attorney, for
R. Calaway, for Defendant-Appellant.
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
Killing of Ceran Lipscomb
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.
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
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.
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.
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.
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."
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
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.
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
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).
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.
"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
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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].
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.
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."
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.
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).
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.
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.
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.
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.
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.
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).
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.
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.
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.
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]."
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."
The text messages took a turn on June 22. Lavender texted
Ayana, telling her "I finna catch a
body." 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.
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]."
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] * * *."
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.
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
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.
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.
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
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!!!
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]."
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.
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).
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.
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.
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.
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).
We overrule Lavender's first assignment of error.
and Weight of Evidence
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).
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.
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.
Assistance of Counsel
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
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.
Lavender claims that counsel was ineffective in 16 separate
areas. We will address each in turn.
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).
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.
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."
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.
Lavender next cites six instances during the opening remarks
and closing arguments of the parties in which counsel was