Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
TRIAL NO. B-1507143
Appealed From Is: Affirmed in Part, Vacated in Part, and
T. Deters, Hamilton County Prosecuting Attorney, and Philip
R. Cummings, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, Joshua A.
Thompson and Krista M. Gieske, Assistant Public Defenders,
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.
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.
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.
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.
Traffic Stop and Fay Apartment Search
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.
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.
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
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
Death of Jonathan Austin
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.
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
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
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.
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.
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.
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
(Citations omitted.) State v. Echols, 128 Ohio
App.3d 677, 694, 716 N.E.2d 728 (1st Dist.1998).
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).
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.
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.
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.
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.
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."
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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, ¶ 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