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State v. Rosemond

Court of Appeals of Ohio, First District, Hamilton

December 27, 2019

STATE OF OHIO, Plaintiff-Appellee,
ANTHONY ROSEMOND, Defendant-Appellant.

          Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-1507143

         Judgment Appealed From Is: Affirmed in Part, Vacated in Part, and Cause Remanded

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

          Raymond T. Faller, Hamilton County Public Defender, Joshua A. Thompson and Krista M. Gieske, Assistant Public Defenders, for Defendant-Appellant.


          Mock, Presiding Judge.

         {¶1} In eight assignments of error, defendant-appellant Anthony Rosemond claims that he was improperly convicted of murder with specifications, a special felony, three counts of felonious assault with specifications, felonies of the second degree, three counts of having a weapon while under a disability, felonies of the third degree, trafficking in heroin with a specification, a felony of the second degree, and trafficking in cocaine with a specification, a felony of the fourth degree. We affirm the decision of the trial court.

         {¶2} The counts in the indictment issued against Rosemond arise from two separate core incidents. The first nine counts relate to an event that occurred on December 8, 2015. On that date, gunmen attacked four individuals who were sitting inside of a car near the Schwarz Market in Cincinnati. The shooting resulted in the death of one individual and the injury of the other three. As a result of those events, Rosemond was indicted for murder, felony murder, three counts of felonious assault causing serious bodily harm, three counts of felonious assault with a deadly weapon, and one count of having a weapon while under a disability.

         {¶3} The second event occurred five days prior. On that date, police officers initiated a traffic stop of a vehicle at the nearby Fay Apartments in which they later came to believe Rosemond had been a passenger. After finding cocaine in the car, officers then searched a unit in the Fay Apartments to which they believed Rosemond had access. After police found additional drugs and two handguns, Rosemond was indicted for trafficking in and possession of heroin, trafficking in and possession of cocaine, and two counts of having a weapon while under a disability.

         {¶4} Following several pretrial motions, the cause was tried before a jury for six days. Rosemond was found guilty on all counts and related specifications. At sentencing, the trial court merged a number of counts as allied offenses of similar import. Rosemond was then sentenced to an aggregate total of 57 years to life in prison.

         The Traffic Stop and Fay Apartment Search

         {¶5} Early in the morning of December 3, 2015, Cincinnati police officers Robert Wilson and Danny Brockmann were patrolling the Fay Apartments-a large apartment complex on the west side of the city. As they were driving down one of the streets within the complex, they were passed by a vehicle traveling at a high rate of speed. The officers testified that they believed they saw two adults in the front seats of the car as it drove past. The officers turned their cruiser around and attempted to follow the vehicle, but soon lost sight of it.

         {¶6} A few minutes later, the officers came upon the vehicle in a parking lot behind one of the buildings in the complex. By the time officers approached the vehicle, there was one adult in the driver's seat and no front passenger. The driver was a woman named Jourdan Bailey. Officers described her as rude and curt in her interactions with them. Bailey's five-year-old son was in the back seat of the car. Bailey denied living in the complex, but the computer records the officers checked demonstrated otherwise. Bailey told the officers that she was visiting a cousin who lived in the complex, and that she had driven behind the apartment building to let her son urinate there.

         {¶7} The officers searched the vehicle and found a bag of cocaine lodged between the passenger seat and the door. They also found a large, distinctive Pelle Pelle leather jacket with a state-issued identification card belonging to Rosemond in the pocket. The officers retained the identification and returned the jacket to the back seat. Bailey was arrested for cocaine possession. When Bailey was arrested, her son began to cry and told officers that his dad had just jumped out of the car.

         {¶8} The officers noticed that Bailey had a key on her key chain that they recognized as a key for an apartment in the Fay Apartments. The officers went to the apartment in which records indicated Bailey resided. When they determined that the key opened the door, they conducted a protective sweep of the apartment to ensure that Rosemond was not inside. Their intent was to secure the apartment while they obtained a search warrant. After obtaining the search warrant, officers found a digital scale, heroin, cocaine, marijuana, and two pistols.

         The Death of Jonathan Austin

         {¶9} Five days later, Jonathan Austin and three friends arrived at the Schwarz Market, located near the Fay Apartments. Austin had been trying to keep a low profile because he had testified in the trial of a man who had killed Austin's cousin. The four men were at the market to purchase marijuana. Ariontez Nared went into the store to purchase marijuana, while Austin, Deion Willingham, and Dante Williams waited in the car. When Nared returned to the vehicle, two to three gunmen approached the vehicle and began firing. Austin died at the scene from his injuries, and Nared, Willingham, and Williams were all injured.

         {¶10} The shooting was captured by various security cameras in the area. One of the officers who had arrested Bailey viewed the video recordings and recognized the Pelle Pelle jacket from the Fay Apartment stop. At trial, Nared testified and identified Rosemond as the shooter. The jacket, when retrieved by law enforcement, had gunshot residue on the sleeve.


         {¶11} In his first assignment of error, Rosemond claims that the trial court erred when it allowed the counts related to the December 3 traffic stop to be tried along with those related to the December 8 shootings. Before trial, counsel had filed a motion to sever the December 3 counts from the December 8 counts. Citing only Crim.R. 14, he argued that the two sets of counts "occurred separate and apart" from one another, they were different kinds of offenses, and the admission of the evidence concerning one set of offenses would not have been proper in a trial of the second set pursuant to Evid.R. 404(B). Rosemond filed a supplemental motion for severance, again citing only Crim.R. 14, arguing that the two of the weapons-under-disability counts should be tried separately. He later filed a second supplemental motion, again citing only Crim.R.14, asking the trial court to sever a third weapons-under-disability charge. Trial counsel renewed the motion, as supplemented, at the beginning of the case; but he failed to renew it at the close of the state's case or at the close of the evidence. While the dissent indicates that we have confused Crim.R. 14 with Crim.R. 8, Rosemond never made his argument pursuant to Crim.R. 8. This includes the fact that Rosemond's argument on appeal was limited to arguing the failure of the trial court to grant his "motion to sever" filed pursuant to Cri.R 14. Rosemond has not argued-below or to this court-that the joinder of offenses violated Crim.R. 8. We therefore restrict our analysis to the arguments presented below.

         {¶12} Rosemond recognizes that he failed to properly renew his motion below, but argues that the trial court committed plain error when it failed to order severance. While counsel for Rosemond did renew the motion, he renewed it at the beginning of trial. This was insufficient. As this court recently noted, the failure to renew a motion to sever at the close of the state's case and the close of the evidence constitutes a waiver of that argument on appeal. State v. Savage, 1st Dist. Hamilton No. C-180413, 2019-Ohio-4859, ¶ 17, citing State v. Bennie, 1st Dist. Hamilton No. C-020497, 2004-Ohio-1264, ¶ 20.

         {¶13} But a mere forfeiture by failure to preserve an issue does not extinguish a claim of plain error under Crim.R. 52(B). See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 23. To prevail on a claim of plain error, an accused must show that an error occurred, that the error was plain, and that the error affected the outcome of the trial. See Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). An appellant must demonstrate a reasonable probability that the error resulted in prejudice. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. In this case, we conclude that Rosemond cannot demonstrate plain error because the trial court did not abuse its discretion when it denied the motion to sever.

         {¶14} Generally, the law favors joinder because a single trial will conserve time and expense and may minimize the potentially disparate outcomes that can result from successive trials before different juries. State v. Schiebel, 55 Ohio St.3d 71, 86-87, 564 N.E.2d 54 (1990). Where a defendant claims that joinder was improper, he must affirmatively show that his rights were prejudiced. See State v. Roberts, 62 Ohio St.2d 170, 175, 405 N.E.2d 247 (1980); see also Crim.R. 14.

         {¶15} A reviewing court will conclude that joinder was not prejudicial if it makes one of two determinations. State v. Wiles, 59 Ohio St.3d 71, 77, 571 N.E.2d 97 (1991). The first determination, known as the "other acts test," may negate prejudice from joinder if the state could have introduced evidence of one offense in a separate trial of another offense under the other-acts provision of Evid.R 404(B). State v. Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991). The second determination, known as the "joinder test," requires only a showing that the evidence of each of the joined offenses is "simple and distinct." Id. As this court described it,

[t]he object of the "simple and distinct" test is to prevent the jury from improperly considering evidence of various crimes as corroborative of each other. "[T]he very essence of this rule is that the evidence be such that the jury is unlikely to be confused by it or misuse it." Generally, under the simple-and-distinct test, if the evidence of each offense is direct and uncomplicated, it is presumed that the trier of fact is capable of segregating the proof and not cumulating evidence of the various offenses being tried.

(Citations omitted.) State v. Echols, 128 Ohio App.3d 677, 694, 716 N.E.2d 728 (1st Dist.1998).

         {¶16} In this case, the evidence related to the counts arising from the December 3 traffic stop was distinct from the evidence related to the December 8 shooting. The jury in this case was unlikely to have confused which evidence related to which incident. See State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 37 (the jury would not have been confused about what evidence proved the murder and what evidence proved an unrelated aggravated robbery).

         {¶17} In order to analyze the question of whether misjoinder resulted in prejudice, the dissent cites United States v. Lane, 474 U.S. 438, 450, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). In that case, the United States Supreme Court said that a court should consider (1) whether the evidence of guilt was overwhelming and the effect of any improperly admitted evidence on the verdict; (2) the steps taken to mitigate the effects of the error; and (3) the extent to which the improperly admitted evidence as to the misjoined counts would have been admissible at trial on the other counts. Id. But that case, and the other cases referenced in that section of the dissent's analysis, are all applying the Federal Rules of Criminal Procedure.

         {¶18} In Ohio, the Ohio Supreme Court has established the two-prong test set forth above for considering prejudicial misjoinder under Ohio law. Importantly, federal courts have not adopted the alternate consideration of whether the evidence as to each set of charges is simple and distinct. The applicability of the simple-and-distinct test has recently been confirmed by the Ohio Supreme Court. See State v. Ford, Slip Opinion No. 2019-Ohio-4539, ¶ 104 (when the evidence is "simple and distinct," an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence of the crimes as other acts under Evid.R. 404(B)). Thus, if the state can meet the requirements of the "simple and direct test," it need not meet the requirements of the stricter "other acts test." Franklin, 62 Ohio St.3d at 122, 580 N.E.2d 1.

         {¶19} Because the evidence relating to each set of counts was simple and distinct, Rosemond cannot show that he was prejudiced by the joinder of the counts in a single trial. We overrule his first assignment of error.

         Unrecorded Sidebars

         {¶20} In his second assignment of error, Rosemond claims that the trial court erred and violated his right to a public trial when it failed to record 15 sidebar conferences during the course of the trial. Crim.R. 22 requires the recording of sidebar conferences in serious-offense cases. State v. Davis, 1st Dist. Hamilton No. C-130198, 2014-Ohio-794, ¶ 13, citing State v. Brewer, 48 Ohio St.3d 50, 60-61, 549 N.E.2d 491 (1990), and State v. Keenan, 81 Ohio St.3d 133, 139, 689 N.E.2d 929 (1998). Under the rule, the failure to record sidebar conversations is error. Davis at ¶ 15. But the requirement "does not mean that the trial record must be perfect for the purposes of appellate review." State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio- 5283, 855 N.E.2d 48, ¶ 158, quoting State v. Palmer, 80 Ohio St.3d 543, 687 N.E.2d 685 (1997), syllabus. The defendant must also show prejudice, and "prejudice will not be presumed from the mere existence of * * * unrecorded bench and chambers conferences * * *." Palmer.

         {¶21} Rosemond has acknowledged that this court has addressed this issue on several occasions. He first argues that our previous cases have only addressed situations in which the trial court had, after failing to record sidebar discussions, summarized what had occurred during the unrecorded discussions. Rosemond concludes that "due to the absence of detailed summaries, this court should reverse Mr. Rosemond's conviction[s] without a prejudice analysis because the failure to provide detailed summaries amounts to a flagrant violation of Crim.R. 22."

         {¶22} In essence, Rosemond claims that such a failure constitutes structural error. "Structural errors," defy analysis by "harmless error" standards because they "affect[ ] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Consequently, a structural error mandates a finding of "per se prejudice." State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9.

         {¶23} In determining whether an alleged error is "structural," we begin with the inquiry of whether the alleged error "involves the deprivation of a constitutional right." Id. at ¶ 18. "[T]he trial-error/structural-error distinction is irrelevant unless it is first established that constitutional error has occurred." State v. Esparza, 74 Ohio St.3d 660, 662, 660 N.E.2d 1194 (1996). While Rosemond only argues that the violation of Crim.R. 22 is the basis for his argument, he separately argues that the failure to record the sidebar conversations violated his constitutional right to a public trial. And so we will consider whether the failure to record the sidebar conversations in this case amounted to a violation of Rosemond's constitutional rights.

         {¶24} The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Section 10, Article I, of the Ohio Constitution also guarantees an accused the right to a public trial. Rosemond has cited no authority to support his argument that the failure to record sidebar discussions violates a criminal defendant's right to a public trial. Our research has also found no such authority. So, as a case of first impression, we consider the question by examining the nature of the right to a public trial.

         {¶25} As the Eighth Appellate District has noted, the right to a public trial has historically been recognized as

a safeguard against possible infringements by the court against the accused. An open courtroom is necessary to preserve and support the fair administration of justice because it encourages witnesses to come forward and be heard by the public, discourages perjury by the witnesses, and ensures that the judge and prosecutor will carry out their duties properly. Also, a public trial allows the general public to see that the defendant is "fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions."

State v. Grant, 8th Dist. Cuyahoga No. 87556, 2007-Ohio-1460, ¶ 12, quoting Waller v. Georgia, 467 U.S. 39, 43, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).

         {¶26} Nothing about the rationale for the constitutional guarantee, or the cases that have outlined its protection, lead to the conclusion that the failure to transcribe sidebar conversations violates a criminal defendant's right to a public trial. Caselaw applying the right to a public trial addresses litigation in which the proceedings were closed to the public for a limited period of time, see State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038 (closure during the cross-examination of a witness), State v. Morris, 157 Ohio App.3d 395, 2004-Ohio-2870, 811 N.E.2d 577 (1st Dist.) (closure during sentencing hearing), or excluding certain spectators, see State v. Moton, 2018-Ohio-737, 107 N.E.3d 203 (8th Dist.). Both implicate the protection.

         {¶27} The commonality among the caselaw is that the constitutional right to a public trial centers around members of the public having access to the proceedings and the opportunity to observe them as they occur. It is this safeguard that both ensures that the proceedings are conducted fairly and assures the public that justice is being done. There is nothing about this constitutional protection that implicates the manner in which the record of the proceedings is maintained for review later, and we see no reason to expand that line of jurisprudence to do so.

         {¶28} Since the failure to record sidebar discussions during a trial does not implicate a constitutional right, that failure cannot constitute structural error. See State v. Issa 93 Ohio St.3d 49, 74, 752 N.E.2d 904 (2001) (Cook, J, concurring). Therefore, Rosemond's protestations notwithstanding, we must consider the question of prejudice and his failure to preserve the record.

         {¶29} Rosemond concedes that he did not object to the failure to record sidebar conversations. "[T]he defendant must show prejudice from the failure to record, especially where the defendant does not object to the procedure employed by the court." State v. Hackney, 1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 44. "We will not reverse because of unrecorded proceedings when the defendant failed to object and fails to demonstrate material prejudice." Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, at ¶ 135.

         {¶30} This court has repeatedly held that this prejudice is established by demonstrating the substance of the sidebar conversations through the supplementation of the record pursuant to App.R. 9(C). See State v. Hendrix, 1st Dist. Hamilton No. C-150194, 2016-Ohio-2697, ¶ 34. Rosemond argues that these cases are distinguishable because the trial court had summarized the sidebar conversations therein, whereas in this case no summaries were placed on the record. But Rosemond misunderstands the significance of those summaries in our previous jurisprudence. Those cases did not turn on the presence or absence of summaries. Rather, this court held that, because the defendants had not supplemented the record pursuant to App.R. 9(C), they were left with the starting point that the trial court had accurately summarized the unrecorded conversations. As this court reasoned,

Here, Davis has not prepared a statement pursuant to App.R. 9(C), but instead attempts to rely on the trial court's summary of the sidebar conferences, which he argues is equivalent to the reconstruction of the record required by App.R. 9. Although Davis failed to comply with App.R. 9(C), we find that his failure did not result in a waiver of this issue on appeal or prevent us from effectively reviewing the record because the record does contain a transcription of the trial court's summaries. By failing to supplement the record, and by relying on the summaries proffered by the trial court, Davis has accepted the trial court's summaries as accurate representations of what took place during the unrecorded sidebar conferences.

State v. Davis, 1st Dist. Hamilton No. C-130198, 2014-Ohio-794, ¶ 14. Thus, the summaries did not affect our analysis; they instead served as the substitute for the App.R. 9(C) summaries for the purpose of determining the content of the unrecorded sidebar discussions.

         {¶31} So while the absence of summaries by the trial court differentiates this case from our previous jurisprudence, their absence made it even more important for Rosemond to have supplemented the record in order to establish that he had been prejudiced by the failure to record the sidebar discussions. Without that information, we are unable to determine whether the failure to record the exact discussions prejudiced Rosemond in the prosecution of his appeal. The mere failure to record them is, on its own, insufficient. As Rosemond failed to object to the unrecorded sidebar discussions and has failed to demonstrate prejudice, we overrule his second assignment of error.

         Ineffective Assistance

         {¶32} In his third assignment of error, Rosemond claims that his trial counsel was ineffective for failing to file a m0tion to suppress the evidence seized when law enforcement searched the apartment in the Fay Apartments. We disagree.

         {¶33} In establishing a claim of ineffective assistance of trial counsel, a defendant must make a two-part showing. The defendant must first show that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1986). The defendant must then show that this deficient performance prejudiced his or her defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial-the result of which was unreliable. Id. In other words, but for counsel's errors, there is a reasonable probability that the outcome of the trial would be different. Id. at 694. Unless a defendant makes both showings, "it cannot be said that the conviction * * * resulted from a breakdown in the adversary process that renders the result unreliable." Id. As to deficient performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.

         {¶34} Our analysis of this issue begins by noting that the "failure to file a suppression motion does not constitute per se ineffective assistance of counsel." State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Thus, the failure to file a motion to suppress constitutes ineffective assistance of counsel only when the record establishes that the motion would have been successful if made. In re M.E., 1st Dist. Hamilton No. C-140586, 2015-Ohio-3663, ΒΆ 7. However, even when some evidence in the record supports a motion to suppress, we presume that defense counsel was effective if "the defense counsel could reasonably have decided that the filing of a motion to ...

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