Opinion
No. 104725
04-06-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. JAKWAN LASH DEFENDANT-APPELLANT
FOR APPELLANT Jakwan Lash Inmate No. A683640 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Carl Mazzone Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-15-598485-C
Application for Reopening
Motion No. 510291
FOR APPELLANT
Jakwan Lash
Inmate No. A683640
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Carl Mazzone
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:
{¶1} Under App.R. 26(B), applicant Jakwan Lash seeks to reopen this court's judgment in State v. Lash, 8th Dist. Cuyahoga No. 104725, 2017-Ohio-4299, in which this court affirmed Lash's conviction and sentence for aggravated robbery and kidnapping. The offenses occurred at an AutoZone in Cleveland Heights where Lash had previously worked. Lash argues that his appellate counsel was ineffective by not adequately challenging his convictions on sufficiency of the evidence grounds, failing to raise a manifest weight of the evidence challenge, and failing to challenge the admission of evidence that was both hearsay and not properly authenticated. The state opposes the application as having no merit. We agree and deny the application to reopen.
A. Standard of Review
{¶2} The appropriate standard to determine whether a defendant has received ineffective assistance of appellate counsel is the two-pronged analysis found in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10. Applicant "must prove that his counsel [was] deficient for failing to raise the issues he now presents and that there was a reasonable probability of success had he presented those claims on appeal." Id., quoting State v. Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770 (2001). Applicant "bears the burden of establishing that there was a 'genuine issue' as to whether he has a 'colorable claim' of ineffective assistance of counsel on appeal." State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998).
{¶3} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an attorney's work must be highly deferential. The court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Therefore,
a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."Strickland at 689.
B. Arguments Not Meritorious
{¶4} Lash raises three proposed assignments of error in support of his application to reopen his direct appeal. Having reviewed the arguments in light of the record, we hold that Lash has failed to meet his burden to justify reopening his appeal. He cannot satisfy either prong of the Strickland test and therefore his application fails on the merits.
1. Sufficiency of the Evidence
{¶5} In his first proposed assignment of error, Lash argues that his appellate counsel was ineffective in failing to challenge his aggravated robbery conviction, and to the extent that his appellate counsel did challenge the kidnapping conviction, counsel did not do so effectively. We find this argument to have no merit.
{¶6} Sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence to support a criminal conviction, an appellate court examines the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶7} Lash was convicted of aggravated robbery under R.C. 2911.01(A)(1), which provides as follows:
No person, in attempting or committing a theft offense * * * or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]
{¶8} According to Lash, his aggravated robbery conviction cannot stand because the record lacks any direct evidence that (1) places him at the scene with a deadly weapon, or (2) establishes him using force while committing or attempting to commit a theft offense. We find this argument to have no merit.
{¶9} Lash appears to erroneously believe that the state needed to present only direct evidence in the form of forensic or eyewitness testimony that identified him "at the scene with a deadly weapon, using force while committing or attempting to commit a theft offense." But that is not the standard. Circumstantial evidence carries the same probative value as direct evidence. See State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-Ohio-1060, ¶ 18, citing State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988) ("Proof of guilt may be made by circumstantial evidence, real evidence, and direct evidence, or any combination of the three, and all three have equal probative value.").
{¶10} Moreover, Lash's argument is also fatally flawed because it fails to appreciate that the state's case against him was predicated on his aiding and abetting in the commission of the aggravated robbery and kidnapping. Indeed, "a defendant charged with an offense may be convicted of that offense upon proof that he was complicit in its commission * * *." State v. Herring, 94 Ohio St.3d 246, 251, 2002-Ohio-796, 762 N.E.2d 940. Under Ohio's complicity statute, R.C. 2923.03(A)(2), Lash could be found guilty if he acted in complicity with another person in committing these offenses by aiding and abetting that other person. To support a conviction based upon a defendant's complicity by "aiding and abetting" another in committing an offense under R.C. 2923.03(A)(2), "the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal." State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus.
Lash was indicted along with three codefendants — Leontae Jones, Alexander Hawkins, and Jeremy Merritt — and the jury was given an aiding and abetting instruction as to Lash's role in the offenses.
{¶11} Based on the testimony in the record and viewing the evidence in the light most favorable to the state, a rational trier of fact could find Lash guilty of aggravated robbery beyond a reasonable doubt. Indeed, apart from the text messages connecting Lash and the codefendants to the crimes and the timing and location of the police's apprehension of the defendants following the reported crimes, the police found significant physical evidence linking Lash to the crimes, such as handcuffs, receipts for duct tape purchased on the same day as the robbery, black latex gloves, and a bucket-style hat that matched the description of a hat worn by one of the assailants.
{¶12} As for the kidnapping conviction, we likewise find no merit to Lash's argument. R.C. 2905.01(A)(2) provides as follows:
No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person * * * [t]o facilitate the commission of any felony or flight thereafter[.]
{¶13} Contrary to Lash's assertion, the absence of direct testimonial or forensic evidence identifying him as one of the masked men on the scene does not negate the circumstantial evidence produced by the state, which included his complicity to commit the crimes. We find no basis to conclude that his kidnapping conviction is not supported by sufficient evidence.
{¶14} Lash's first proposed assignment of error is overruled.
2. Manifest Weight of The Evidence
{¶15} In his second proposed assignment of error, Lash argues that his convictions are against the manifest weight of the evidence. Lash essentially advances the same argument raised in his first proposed assignment of error, ignoring that the state's case was predicated on his aiding and abetting the codefendants. Specifically, Lash argues that the evidence did not establish his being present on the scene and that the DNA recovered from the scene "matched [codefendants] Alexander Hawkins and Leonate Jones and that they are the two men that had the guns and committed the crimes." But again, the state's case against Lash was predicated on the basis of his aiding and abetting the codefendants in committing the crimes. Moreover, to the extent that Lash testified and denied any involvement in the crimes, the jury was free to disregard this self-serving testimony. See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus (recognizing that the trier of fact makes determinations of credibility and the weight to be given to the evidence).
{¶16} Given that any challenge of the convictions on manifest weight of the evidence grounds would have been futile, we cannot say that appellate counsel was ineffective in refraining from raising such an argument.
{¶17} The second proposed assignment of error is overruled.
3. Admission of Text Messages
{¶18} In his final proposed assignment of error, Lash argues that the trial court erred in allowing Detective Michael Reese to read "text messages allegedly from Leontae Jones" to Lash over defense counsel's objection. According to Lash, the text messages constituted hearsay and the admission of such statements violated his right to confrontation guaranteed by the Sixth Amendment. Lash further argues that the text messages were never properly "authenticated" because "Jones never testified that he wrote them."
{¶19} According to Lash, the admission of Jones's text messages to Lash violates the holding in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because it deprived Lash the right to confront Jones as guaranteed by the Sixth Amendment to the United States Constitution. In Bruton, the United States Supreme Court held that the confession of a codefendant who exercises his or her Fifth Amendment right not to testify is not admissible against the other defendant because that defendant has no opportunity to cross-examine the confessing codefendant. The rule in Bruton, however, does not apply to non-hearsay statements made by a co-conspirator in furtherance of a conspiracy. State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 30, citing United States v. Inadi, 475 U.S. 387, 398, 106 S.Ct. 1121, 89 L.Ed.2d 390,(1986) fn. 11 (stating that non-hearsay does not violate the defendant's right to confront witnesses).
{¶20} Here, the record reflects that the text messages from Jones to Lash fall under the exception of hearsay contained in Evid.R. 801(D)(2)(e) and that there was prima facie evidence of conspiracy between Lash and Jones (as well as the other codefendants) independent of Jones's text messages. Accordingly, the trial court properly admitted this evidence at trial.
{¶21} As for Lash's authentication challenge, we likewise find no merit. Evid.R. 901, which concerns authentication, provides that "[t]he requirement of authentication * * * as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Evid.R. 901(A). "Authentication under Evid.R. 901 is a low threshold — the rule requires only a prima facie showing of genuineness and leaves it to the jury to decide the true authenticity and probative value of the evidence." State v. Powell, 8th Dist. Cuyahoga No. 99386, 2014-Ohio-2048, ¶ 33, citing State v. Toudle, 8th Dist. Cuyahoga No. 98609, 2013-Ohio-1548, ¶ 21. Aside from Lash's never raising an objection on authentication grounds in the trial court, Lash testified to the authenticity of the texts. Indeed, Lash testified on direct as to receiving the texts and their purported meaning. Moreover, Lash's argument alleging a lack of proof that Jones had actually sent the message concerns the weight of the evidence, rather than its authenticity. See State v. Huge, 1st Dist. Hamilton No. C-120388, 2013-Ohio-2160,¶ 29.
{¶22} Under the facts of this case, there is simply no basis to raise an authentication challenge of the text message nor does the record support a Bruton challenge.
{¶23} The third proposed assignment of error is overruled.
{¶24} In conclusion, all three of Lash's proposed assignments of error have no merit. Accordingly, Lash cannot meet his burden under App.R. 26(B)(5) to demonstrate "a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal."
{¶25} Application denied. /s/_________
LARRY A. JONES, SR., JUDGE EILEEN A. GALLAGHER, A.J., and
MELODY J. STEWART, J., CONCUR