Lester v. Forshey

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

PAUL JEROD LESTER,

Petitioner, : Case No. 2:21-cv-5132

- vs - District Judge James L. Graham

Magistrate Judge Michael R. Merz

JAY FORSHEY, Warden,

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case under 28 U.S.C. § 2254, brought by Petitioner Paul Lester

with the assistance of counsel to obtain relief from his convictions in the Union County Court of

Common Pleas (Petition, ECF No. 1). After extended litigation over the sufficiency of the Petition,

District Judge Graham ordered Respondent to file a return and allowed the Petitioner time to file

a reply (ECF No. 15). Each party has complied (Return, ECF No. 16; Traverse, ECF No. 17).

Respondent had filed the State Court Record early in the case (ECF No. 6) and completed the

record by filing transcripts with the Return. The case is therefore ripe for decision.

The Magistrate Judge reference was recently transferred to the undersigned to help balance

the Magistrate Judge workload in the District (ECF No. 18).

Litigation History

On March 1, 2018, a Union County grand jury indicted Lester on charges of Trafficking in

Heroin, Trafficking in Cocaine, and Aggravated Trafficking in Drugs, each in violation of Ohio

Revised Code § 2925.03(A)(1); Possession of Cocaine and Aggravated Possession of Drugs, both in

violation of Ohio Revised Code § 2925.11(A); Illegal Manufacture of Drugs in violation of Ohio

Revised Code § 2925.04(A); Having Weapons Under Disability, in violation of Ohio Revised Code §

2923.13(A)(3); and Engaging in a Pattern of Corrupt Activity, in violation of R.C. 2923.32(A)(1), all

arising from conduct during the approximate period of December 1, 2017, through January 11, 2018

(Indictment, Case No.18-CR-012, State Court Record, ECF No. 6, Ex. 1).

A second indictment, handed down March 19, 2018, charged Lester in case number 18 CR

0061, with one count of Trafficking in Heroin, in violation of Ohio Revised Code § 2925.03(A)(1);

one count of Trafficking in Cocaine, in violation of Ohio Revised Code § 2925.03(A)(2); one count

of Possession of Cocaine, in violation of Ohio Revised Code § 2925.11(A); and one count of

Tampering with Evidence, in violation of Ohio Revised Code § 2921.12(A)(1), all for conduct

occurring on August 17, 2017.

After joinder of the cases, to which Lester objected, they were tried to a jury which found him

guilty on all counts on November 2, 2018; he was sentenced to an aggregate term of thirty years

imprisonment. Lester appealed both cases to the Ohio Court of Appeals for the Third District, which

consolidated the appeals sua sponte and affirmed. State v. Lester, 2020-Ohio-2988, ¶ 8 (Ohio App.

3rd Dist. May 18, 2020). The Supreme Court of Ohio declined to exercise jurisdiction over a further

appeal. State v. Lester, 159 Ohio St.3d 1489 (2020).

Lester filed the instant Petition for Writ of Habeas Corpus on October 27, 2021, pleading the

following grounds for relief:

Ground One: Rights to due process and effective representation of

counsel are violated where trial counsel fails to properly object to

the improper joinder of two unrelated [sic] and prejudicial

indictments.

Supporting Facts1: Mr. Lester’s . . . first claim stems from his trial

counsel’s failure to render effective assistance of counsel in

objecting to the improper and prejudicial joinder of two unrelated

indictments. Those indictments sowed confusion, which was laid

bare by questions asked by the jury. The goal of judicial efficiency

was not served by the joinder, which resulted in palpable prejudice

to Mr. Lester. As such, his trial counsel was ineffective for failing

to properly object thereto.

Ground Two: The rights to due process and confrontation are

violated where irrelevant, unnoticed evidence is admitted with the

intention to prejudice the jury.

Supporting Facts: Mr. Lester’s second claim is raised as a result

of due process and confrontation clause violations where the

prosecution repeatedly introduced irrelevant and unnoticed

evidence with the intention of prejudicing the jury. The evidence

involved the bad acts of others as well as unindicted,

unsubstantiated, and irrelevant alleged acts of Mr. Lester. The

inclusion of this “evidence” resulted in a violation of Mr. Lester’s

constitutionally guaranteed rights.

Ground Three: Prosecutorial misconduct resulted in a violation of

Petitioner's due process rights.

Supporting Facts: Mr. Lester’s third claim arises from the

prosecution’s unfettered misconduct, which permeated the entire

trial. In addition to the improper “evidence” the prosecution

introduced, noted in the second claim, the prosecution also elicited

a wide array of improper testimony, made improper comments

regarding the credibility of witnesses and Mr. Lester, made

improper emotional appeals to the jury, improperly threatened and

impeached a witness, and more. The continuous misconduct was

designed to inflame the fears and passions of the jury and was

wholly irrelevant to the indicted conduct. The inclusion of this

evidence rendered the trial so fundamentally unfair that the jury’s

verdict cannot be considered reliable.

(Petition, ECF No. 1).

1 The three sets of supporting facts are not pleaded in the Petition, but in the attached memorandum in support, ECF

No. 1-1, PageID 19.

Respondent moved to dismiss for failure to comply with habeas pleading rules (ECF No.

7). Magistrate Judge Deavers rejected that argument and Judge Graham adopted her Report to that

effect (ECF Nos. 12, 14). On the Court’s further order, Respondent has filed a Return (ECF No.

16) and Petitioner has filed a Traverse (ECF No. 17), rendering the case ripe for decision.

Analysis

Ground One: Due Process and Ineffective Assistance

Due Process – Improper Joinder

In his First Ground for Relief, Lester asserts he was denied due process of law when his

two cases were tried jointly and that he received ineffective assistance of trial counsel when his

trial attorney failed to properly object to the joinder.

Respondent asserts that the due process portion of this claim was not fairly presented to

the state courts and is therefore procedurally defaulted. Furthermore, he asserts the ineffective

assistance of trial counsel claim is without merit.

In the Traverse, Petitioner apparently limits his First Ground for Relief to his ineffective

assistance of trial counsel claim (ECF No. 17, PageID 1350). However, he then discusses

procedural default law generally, treating Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), as

providing the governing standard, but then makes no attempt to apply Maupin to this case. Id. at

PageID 1352-54.

Lester claims he raised his First Ground for Relief as his Fifth Assignment of Error on

direct appeal “in conjunction with the error he raised in his first Assignment of Error, which related

to the improper joinder of indictments.” As reported by the Court of Appeals, the relevant

assignments of error were: Assignment of Error No. I: The trial court committed reversible error

in granting the state's motion to join the two indictments. Assignment of Error No. V: Defense

counsel's failure to renew his motion as to the improper joinder of the two indictments and failure

to stipulate to defendant's prior conviction in a timely fashion or bifurcate the count, rendered

counsel's performance deficient to the point of being ineffective. State v. Lester, 2020-Ohio-2988,

¶ 8 (Ohio App. 3rd Dist. May 18, 2020).

The Third District decided Lester’s First Assignment of Error as follows:

{¶29} In his first assignment of error, Lester argues that the trial

court erred in denying Lester's-motion-to sever his cases for trial.

Specifically, Lester argues that the trial court should have ordered

separate trials because the facts of each case were not separate and

distinct and would be confusing to the jury.

Standard of Review

{¶30} “Joinder is liberally permitted to conserve judicial resources,

reduce the chance of incongruous results in successive trials, and

diminish inconvenience to the witnesses.” State v. Schaim, 65 Ohio

St.3d 51, 58 (1992), citing State v. Torres, 66 Ohio St.2d 340, 343

(1981) and 2 LaFave & Israel, Criminal Procedure, Section 17.1, at

354-355 (1984). See also State v. McKnight, 107 Ohio St.3d 101,

2005-Ohio-6046, ¶ 169 (establishing that it is well settled that the

law favors joinder). Notwithstanding this notion that joinder is

favored, “[i]f it appears that a defendant or the state is prejudiced *

* * by such joinder for trial together of indictments * * *, the [trial]

court shall order an election or separate trial of counts * * * or

provide such other relief as justice requires.” Crim.R. 14.

To prevail on a claim of prejudicial joinder, the defendant must

affirmatively demonstrate that (1) his rights were prejudiced by the

failure to sever, (2) he provided the trial court with sufficient

information to allow it to weigh the benefits of joinder against the

defendant's right to a fair trial, and (3) the trial court abused its

discretion by refusing to sever the charges for trial. State v. Jeffries,

1st Dist. Hamilton No. 2018-Ohio-2160, ¶ 57, citing Schaim at 59,

citing Torres, syllabus. See State v. Howard, 3d Dist. Marion No. 9-

10-50, 2011-Ohio-3524, ¶ 82, citing Schaim at 59, citing Torres,

syllabus.

{¶31} Generally, we review a trial court's decision on a motion to

sever under Crim.R. 14 for an abuse of discretion. State v. Kelly, 5th

Dist. Delaware No. 17CAA040023, 2018-Ohio-378, ¶ 64, citing

State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, ¶ 166, citing

Torres, 66 Ohio St.2d at 343. An abuse of discretion suggests that a

decision is unreasonable, arbitrary, or unconscionable. State v.

Adams, 62 Ohio St.2d 151, 157-158 (1980).

Analysis

{¶32} Importantly, Lester failed to renew his motion for severance

at the close of the State's case or at the close of all evidence. (Nov.

1, 2018 Tr., Vol. III, Tr. at 394). Consequently, Lester has waived

all but plain error on appeal, and to us Lester cannot demonstrate

plain error in his argument. “However, a defendant's failure to renew

his or her Crim.R. 14 motion for severance at the close of the State's

case or at the close of all evidence waives all but plain error on

appeal.” Howard at ¶ 82, citing State v. Miller, 105 Ohio App.3d

679, 691 (4th Dist.1995). See also State v. Muller, 3d Dist. Defiance

No. 4-11-09, 2012-Ohio-3530, ¶ 34; Kelly at ¶ 63. “To demonstrate

plain error, the defendant must demonstrate that the trial court

deviated from a legal rule, the error was an obvious defect in the

proceeding, and the error affected a substantial right.” Howard at ¶

83, citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002). “The

defendant must also demonstrate that the outcome of his trial would

clearly have been different but for the trial court's errors.” Id., citing

State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing State v.

Moreland, 50 Ohio St.3d 58, 63. “We recognize plain error ‘ “with

the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” ’ ” Id., quoting State v.

Landrum, 53 Ohio St.3d 107, 110 (1990), quoting State v. Long, 53

Ohio St.2d 91 (1978), paragraph three of the syllabus.

{¶33} Here, the evidence in the record of each indicted case is

simple and distinct, involving drug-related activities of certain drugs

on particular days at particular locations. Compare State v. Thomas,

3d Dist. Allen Nos. 1-11-25 and 1-11-26, 2012-Ohio-5577, ¶ 23

(concluding that the trial court did not err by denying Thomas's

motion to sever because, in part, “the evidence of each crime in each

indictment was simple and distinct, involving controlled drug buys

of certain amounts of crack cocaine on certain days, drug

possessions of certain amounts on certain days, and weapons

possessions of certain weapons on certain days”). Further, the

evidence in the record is direct and uncomplicated and, as we

concluded in Lester's eighth assignment of error, was sufficient to

sustain the verdicts of guilty by the jury. See Torres, 66 Ohio St.2d

at 344 (“The evidence in the instant case, however, not only was

direct and uncomplicated as to each indictment, but it also was

amply sufficient to sustain each verdict, whether or not the

indictments were tried together.”).

{¶34} Moreover, the record reveals that the trial court instructed the

jury that “[t]he charges set forth in each count in the indictment

constitute a separate and distinct matter. You must consider each

count and the evidence applicable to each count separately.” (Nov.

2, 2018 Tr. at 95-96). Compare Thomas at ¶ 24. See Torres at 343,

citing State v. Roberts, 62 Ohio St.2d 170, 175 (1980), (“We find no

merit in this claim because the jury is believed capable of

segregating the proof on multiple charges when the evidence as to

each of the charges is uncomplicated.”).4 Thus, for these reasons,

Lester has failed to demonstrate that there was an obvious defect in

the proceedings or that the outcome of his trial would have been

different.

{¶35} Accordingly, the trial court did not commit any error, let

alone plain error, by denying Lester's motion to sever and Lester's

first assignment of error is overruled.

State v. Lester, 2020-Ohio-2988, ¶ 8, (3rd Dist. May 18, 2020).

The Magistrate Judge concludes the first branch of Lester’s Ground One is procedurally

defaulted. The Third District reviewed the improper joinder claim for plain error because his

attorney had not renewed the motion to sever at either the close of the State’s case or the close of

all the evidence. Ohio has a relevant procedural rule requiring renewal of a pre-trial motion to

sever at those two points in the proceedings. That rule is attested by citation in the Third District’s

decision. See Lester, ¶ 32, supra. Lester also concedes its existence in his Traverse. (ECF No. 17

PageID 1355). It enforced this rule against Lester by reviewing his joinder claim only for plain

error. An Ohio state appellate court’s review for plain error is enforcement, not waiver, of a procedural

default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478,

511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v. Mitchell, 431

F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle,

271 F.3d 239 (6th Cir. 2001). The rule satisfies the third prong of Maupin in much the same way as

the contemporaneous objection rule – by putting the asserted error before the trial court before it

becomes locked into the appellate record.

A procedural default can be cured by a showing of cause and prejudice. In the second part of

his First Ground for Relief, Lester argues the failure of his trial attorney to renew the objections

constitutes ineffective assistance of trial counsel. While ineffective assistance of trial counsel can

constitute excusing cause, the Magistrate Judge concludes that claim, made as the second part of

Lester’s First Ground for Relief, is without merit for reasons given below.

Merits review of the due process – improper joinder portion of Lester’s First Ground for Relief

is barred by Lester’s procedural default of the claim and it should be dismissed on that basis2.

Ineffective Assistance of Trial Counsel

In the second portion of his First Ground for Relief, Lester claims he received ineffective

assistance of trial counsel when his attorney failed to renew his objections to joinder at the two required

times. The Third District decided this claim on the merits, holding:

{¶59} In his fifth assignment of error, Lester argues that his trial

counsel was deficient in his performance by failing to renew his

motion against joinder (of the two indictments), by failing to

stipulate to Lester's prior conviction timely, and by failing to seek to

bifurcate Count Seven. For the reasons that follow, we disagree.

Standard of Review

{¶60} A defendant asserting a claim of ineffective assistance of

counsel must establish: (1) the counsel's performance was deficient

or unreasonable under the circumstances; and (2) the deficient

2 Respondent also notes that Lester’s appeal to the Ohio Supreme Court did not include an ineffective assistance of

trial counsel claim, thus constituting a further procedural default. O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999).

performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d

303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052 (1984). In order to show trial counsel's conduct was

deficient or unreasonable, the defendant must overcome the

presumption that counsel provided competent representation and

must show that counsel's actions were not trial strategies prompted

by reasonable professional judgment. Strickland at 687. “[T]rial

Counsel is entitled to a strong presumption that all decisions fall

within the wide range of reasonable professional assistance.” State

v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial

decisions, even if unsuccessful, do not generally constitute

ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558

(1995). Rather, the errors complained of must amount to a

substantial violation of counsel's essential duties to his client. See

State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989), quoting State

v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other

grounds, Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135 (1978).

{¶61} “Prejudice results when ‘there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding

would have been different.’ ” State v. Liles, 3d Dist. Allen No. 1-13-

04, 2014-Ohio-259, ¶ 48, quoting Bradley at 142, citing Strickland

at 691. “ ‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’ ” Id., quoting Bradley at 142

and citing Strickland at 694.

Analysis

{¶62} Lester's ineffective-assistance-of-counsel claim centers on his

trial counsel's failure to renew his motion against joinder of the two

indictments and by failing to timely stipulate to Lester's prior

conviction or, alternatively, to bifurcate Count Seven.

Joinder of Indictments

{¶63} As to his ineffective assistance of counsel argument, Lester

first argues that his trial counsel was ineffective because trial

counsel failed to renew his motion against joinder. The record

reflects that Lester's counsel filed a pretrial motion seeking to have

the Raymond-residence indictment tried separately from the

Marysville-hotel indictment, which the State opposed. (Case No.

2018-CR-0012, Doc. Nos. 36, 66); (Case No. 2018-CR-0061, Doc.

Nos. 26, 45). The trial court denied Lester's motion, and Lester's

counsel failed to renew the request during trial. (Case No. 2018-CR-

0012, Doc. No. 101); (Case No. 2018-CR-0061, Doc. No. 61).

Lester argues that his counsel's failure to renew the motion resulted

in the waiver of all but plain error below.

{¶64} Even if we assume, without deciding, that Lester satisfied the

first prong of Strickland, Lester cannot satisfy the second prong. As

discussed in Lester's first assignment of error, the stated evidence

against him in each indictment was simple, distinct, direct, and

uncomplicated.

The law favors the joinder * * * and the avoidance of

multiple trials because joinder conserves judicial and

prosecutorial time, lessens the expenses of multiple trials,

diminishes the inconvenience to witnesses, and minimizes

the possibility of incongruous results from successive trials

before different juries.

State v. Luckie, 5th Dist. Richland No. 2018-Ohio-594, ¶ 30, citing

State v. Thomas, 61 Ohio St.2d 223, 225 (1980). Importantly, and

dispositive to this argument, Lester cannot demonstrate prejudice as

a result of his trial counsel's failure to renew his motion against

joinder of the indictments in light of the trial court's instruction (to

the jury) to consider each count in the indictments, separately. (Nov.

2, 2018 Tr. at 95-96). Accordingly, Lester is unable to satisfy the

second prong of Strickland.

State v. Lester, supra.

The governing standard for ineffective assistance of counsel is found in Strickland v.

Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly

deferential. . . . A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel's

conduct falls within a 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."

466 U.S. at 689.

As to the second prong, the Supreme Court held:

The defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to overcome confidence in the outcome.

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,

supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.

Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of

a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,

379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);

Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams

(Terry) v. Taylor, 529 U.S. 362, 379 (2000).

The Third District decided Lester’s ineffective assistance of trial counsel claim on the

merits3, applying the correct governing standard from Strickland. Lester has not shown that that

court’s application of Strickland was objectively unreasonable and it is therefore entitled to

deference under 28 U.S.C. § 2254(d)(1). The second portion of Lester’s First Ground for Relief

should therefore be dismissed with prejudice on the merits.

Ground Two: Violation of the Due Process and Confrontation Clauses

In his Second Ground for Relief, Lester claims his rights under the Due Process and

Confrontation Clauses were violated when the State introduced “irrelevant, unnoticed” evidence

including the bad acts of other persons and “unindicted, unsubstantiated, and irrelevant alleged

acts of Mr. Lester.”

It appears to the Magistrate Judge that the relevant assignments of error on appeal are

Assignments II and III which read:

Assignment of Error No. II

The trial court erred in permitting the state to introduce evidence

pursuant to Evid.R. 404(B) that was not relevant and whose

prejudicial value substantially outweighed any probative value.

Assignment of Error No. III

The trial court erred in permitting the state to introduce prejudicial

evidence of bad acts committed by other individuals, depriving

defendant of substantial constitutional rights.

3 The Third District assumed deficient performance and decided the case on the prejudice prong.

State v. Lester, supra.

The Third District decided these two Assignments of Error together. Judge Zimmerman’s

opinion reads:

{¶36} In Lester's second assignment of error, he argues that the State

offered testimony related to “other acts” evidence outside the

relevant-time frames set forth in the indictments which were

irrelevant and unfairly prejudicial under State v. Williams, 134 Ohio

St.3d 521, 2012-Ohio-5695. Moreover, Lester argues in his second

assignment of error that the State did not provide him with sufficient

notice that it intended to use the “other acts” evidence at trial. In his

third assignment of error, Lester argues that the trial court permitted

the State to introduce evidence of bad acts committed by witnesses

which infringed on his constitutional rights.

Standard of Review

{¶37} “ ‘Generally, evidence which tends to show that the accused

has committed other crimes or acts independent of the crime for

which he stands trial is not admissible to prove a defendant's

character or that the defendant acted in conformity therewith.’ ”

State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶

21, quoting State v. Hawthorne, 7th Dist. Columbiana No. 04 CO

56, 2005-Ohio-6779, ¶ 24, citing State v. Elliott, 91 Ohio App.3d

763, 770 (3d Dist.1993) and Evid.R. 404. “ ‘However, there are

exceptions to the general rule: “It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” ’ ” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-

Ohio-1787, ¶ 56, quoting State v. May, 3d Dist. Logan No. 8-11-19,

2012-Ohio-5128, ¶ 69, quoting Evid.R. 404(B). See also R.C.

2945.59. “ ‘The list of acceptable reasons for admitting testimony of

prior bad acts into evidence is non-exhaustive.’ ” Bagley at ¶ 56,

quoting State v. Persohn, 7th Dist. Columbiana No. 11 CO 37, 2012-

Ohio-6091, ¶ 23, citing State v. Melton, 11th Dist. Lake No. 2009-

L-078, 2010-Ohio-1278, ¶ 78, and citing State v. Faye, 3d Dist.

Wyandot Nos. 16-99-08 and 16-99-09, 2000 WL 566741, *4 (May

4, 2000).

{¶38} Evidence of other acts is generally admissible if it is offered

for a purpose other than to prove the character of a person in order

to show action in conformity with that character; it is relevant when

offered for that purpose; and the danger of unfair prejudice does not

substantially outweigh its probative value. State v. Kirkland, 140

Ohio St.3d 73, 2014-Ohio-1966, ¶ 68, citing Williams, 134 Ohio

St.3d 521, 2012-Ohio-5695, at ¶ 20 and Evid.R. 401, 403, and

404(B). Evidence is relevant when it has “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.” Evid.R. 401. “Under Evid.R. 403(A), ‘[a]lthough

relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.’ ” State v. Velez,

3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 122, quoting

State v. Maag, 3d Dist. Hancock Nos. 5-03-32 and 5-03-33, 2005-

Ohio-3761, ¶ 71. “ ‘Unfair prejudice is that quality of evidence

which might result in an improper basis for a jury decision.’ ” Id.,

quoting State v. Calhoun, 11th Dist. Ashtabula No. 2010-A-0057,

2012-Ohio-1128, ¶ 82.

{¶39} Generally, the admission or exclusion of evidence lies within

the trial court's discretion, and a reviewing court should not reverse

absent an abuse of discretion and material prejudice. State v.

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62, citing State v.

Issa, 93 Ohio St.3d 49, 64 (2001), citing State v. Maurer, 15 Ohio

St.3d 239, 265 (1984). An abuse of discretion implies that the trial

court acted unreasonably, arbitrarily, or unconscionably. Adams, 62

Ohio St.2d at 157. However, “if the party wishing to exclude

evidence fails to contemporaneously object at trial when the

evidence is presented, that party waives for appeal all but plain

error.” Bagley at ¶ 53-54, citing State v. Hancock, 108 Ohio St.3d

57, 2006-Ohio-160, ¶ 59-60, State v. Barrett, 4th Dist. Scioto No.

03CA2889, 2004-Ohio-2064, ¶ 20, and State v. Lenoir, 2d Dist.

Montgomery No. 22239, 2008-Ohio-1984, ¶ 19.

{¶40} “Crim.R. 52(B) governs plain-error review in criminal cases.”

Bagley at ¶ 55, citing State v. Risner, 73 Ohio App.3d 19, 24 (3d

Dist.1991). “A court recognizes plain error with the utmost caution,

under exceptional circumstances, and only to prevent a miscarriage

of justice.” State v. Smith, 3d Dist. Hardin No. 6-1414, 2015-Ohio-

2977, ¶ 63, citing State v. Saleh, 10th Dist. Franklin No. 07AP-431,

2009-Ohio-1542, ¶ 68. Under plain-error review, “[w]e may reverse

only when the record is clear that defendant would not have been

convicted in the absence of the improper conduct.” Id., citing State

v. Williams, 79 Ohio St.3d 1, 12 (1997).

“Other-acts” analysis

{¶41} Initially, we must first determine whether Lester preserved

this issue (under his second and third assignments of error) on

appeal. Lester's arguments center around the testimonies of Jason

Maynard (“Maynard”), Samantha Righter (“Righter”), Cassidy

Manns (“Manns”), Alyssa Carver (“Carver”), Todd Frye (“Frye”),

Kaylee Earles (“Earles”), Timothy Holton (“Holton”), and Matthew

Wright (“Wright”). We note, that Lester objected to the testimonies

of Maynard, Righter, and Manns, as to relevance. (Oct. 30, 2018 Tr.,

Vol. I, at 78-79, 127-132, 136-140). Further, Lester objected to the

testimony of Carver on the basis that her testimony was inadmissible

under Evid.R. 404(B). (Oct. 31, 2018 Tr., Vol. II, at 177). However,

Lester failed to object to the testimonies of Frye, Earles, Holton, and

Wright. (Oct. 30, 2018 Tr., Vol. II, at 198, 210); (Oct. 31, 2018 Tr.,

Vol. II, at 200-201); (Nov. 1, 2018 Tr., Vol. I, at 98); (Nov. 1, 2018

Tr., Vol. II, at 188). And, based on our review of the record, we

cannot conclude that the admission of the testimonies of Frye,

Earles, Holton, and Wright amounted to plain error. As such, we will

only address whether the testimonies of Maynard, Righter, Manns,

and Carver are subject to Lester's assignments of error.

Maynard's, Righter's, Manns's, and Carver's Testimony

{¶42} Lester contends that Maynard, Righter, Manns and Carver

were permitted to testify to “other acts” that occurred outside of the

indicted-time frames. Because Lester argues that the facts before us

involve “other acts” evidence under Evid.R. 404(B), we apply the

three-step analysis set forth in State v. Williams, 134 Ohio St.3d 521,

2012-Ohio-5695, at ¶ 19-20. “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, citing Evid.R.

401. “The next 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

the other acts evidence 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.,

citing Evid.R. 403.

Maynard's Testimony:

{¶43} In the State's case in chief during its direct examination of

Maynard, the following exchange occurred to which Lester's

counsel objected:

[State of Ohio]: Okay. What's the farthest you ever drove

to make a delivery?

[Maynard]: I mean, all around Columbus. All around

Delaware and, I mean --

[Lester's Trial Counsel]: I'm going to object as to

relevancy, Your Honor.

[State of Ohio]: I'm trying to determine, Your Honor, how

far he drove that night. It occurred repeatedly, so I'm trying

to figure out how far he drove.

[The Trial Court]: Then ask him how far he drove that

night.

[State of Ohio]: So, how far did you drive on August 17,

2017?

[Maynard]: That--I-- can't answer that because I don't

remember exactly at that time. After that happened, just

like today, I could not tell you who I went to that day. Who

I went to that night. I mean, I don't -- I can't recall where I

went that day.

(Oct. 30, 2018 Tr., Vol. I, at 78). After the objection, the trial court

ordered the State to rephrase the question. Thereafter, no further

objection by Lester's trial counsel occurred. Since Lester's trial

counsel's failed to object to the rephrased question, and under the

facts presented, we apply plain error. See Crim.R. 52(B). Assuming,

arguendo, that the State's question was an attempt to elicit

“[e]vidence of [Lester's] other crimes, wrongs, or acts” outside of

the indicted-time frames and in different jurisdictions which would

be inadmissible “to show action in conformity therewith”,

Maynard's response was limited to the State's rephrased question

which confined Maynard's answer to acts related to the indicted-

time frame for the Marysville-hotel case. Evid.R. 404(A). (See Oct.

30, 2018 Tr., Vol. I, at 78). Here, the State's rephrased question

related directly to Counts One and Two. (Case No. 2018-CR-0061,

Doc. No. 1). And, under the facts before us, the admission of this

evidence does not implicate Evid.R. 404(B). State v. Carter, 3d Dist.

Allen No. 1-15-62, 2017-Ohio-1233, ¶ 73, (concluding that Evid.R.

404(B) is “not implicated “in situations where the act is related to

the crime or has a connection to the offense.”). Evid.R. 404(B)

applies to the admission of “other acts” extrinsic to the charged

offense and not those acts intrinsic to the offense because they are

outside the purview of Evid.R. 404(B). State v. Hill, 5th Dist. Stark

No. 2018CA00077, 2019-Ohio-3432, ¶ 51-52, citing Jordan v.

Dayton Testing Lab., 2d Dist. Montgomery No. 19741, 2004-Ohio-

2425, ¶ 48 and United States v. Siegel, 536 F.3d 306, 316 (4th Cir.

2008). Accordingly, as to Maynard's testimony, Lester's argument

lacks merit.

Righter's Testimony:

{¶44} Turning to Righter's testimony, the record reveals that Righter

testified that she had known Lester since she was a teenager and

reconnected with him in the summer of 2017 because “[she] was

getting high and a friend informed [her] that [Lester] was selling

dope.” (Oct. 30, 2018 Tr., Vol. I, at 127). When she did not have

money, she testified that she exchanged sexual favors for drugs. (Id.

at 128). Although Lester's trial counsel objected to this line of

questioning, he did so on the on the basis of relevance and not

impermissible character evidence under Evid.R. 404(B). (Id.). The

trial court overruled his objection and instructed the State to tie the

dates up to the indictment. (Id.). Thereafter, Righter testified that she

had also purchased drugs from Lester during the relevant-indicted-

time frames in the basement of the Raymond residence utilizing the

same forms of payment. (Id. at 128-129). See Evid.R. 103(A)(1). “

‘Error may not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected, and’ ‘[i]n

case the ruling is one admitting evidence, a timely objection appears

in the record stating the specific ground of the objection, if the

specific ground was not apparent from the context.’ ” Stark v. Stark,

5th Dist. Delaware No. 01CAF6020, 2002 WL 109281, *3 (Jan. 4,

2002), quoting Evid.R. 103(A)(1). Notwithstanding the prescription

of Evid.R. 103(A)(1) requiring a timely objection stating the

specific ground of the objection, even if we assume without deciding

that an abuse-of-discretion standard applies to the evidence Lester

is challenging on appeal, the result is still the same. See State v.

Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 10 (“We

will assume without deciding that an abuse-of-discretion standard of

review applies as to Rebecca's testimony, even though Wendel

objected to only one of the statements.”); Stark at *3 (“Although

appellant did not specifically state hearsay as the reason for the

objection, the court did not abuse its discretion in admitting the

evidence.”).

{¶45} Importantly, Lester was indicted for trafficking offenses

which were alleged to have occurred on August 17, 2017 (arguably

“summer of 2017”) in Counts One and Two relating to the

Marysville-hotel case, and after Lester's objection, Righter's

testimony was confined to acts that occurred during the relevant-

indicted-time frames in the Raymond-residence case. (Case No.

2018-CR-0061, Doc. No. 1); (Case No. 2018-CR-0012, Doc. No.

2); (Oct. 30, 2018 Tr., Vol. I, at 12). Because we have determined

that the Righter's testimony relates to acts intrinsic to the indicted

offenses, we conclude Lester's argument is without merit. See

Carter, 2017-Ohio-1233, at ¶ 73; Hill, 2019-Ohio-3432, at ¶ 51.

Manns's Testimony:

{¶46} We now address Manns's objected to testimony related to the

facts of the Marysville-hotel case. The testimony in question is as

follows:

[State of Ohio]: Miss Manns, how long had you been

purchasing from Jerod Lester?

[Lester's Trial Counsel]: Your Honor, I'm going to object

as to relevancy.

[The Trial Court]: Overruled.

[Lester's Trial Counsel]: Miss Manns, the question pending

was, how -- how long had you been purchasing from Jerod

Lester?

[Manns]: I'm not sure.

[State of Ohio]: Does it go back more than a year prior to -

-

[Manns]: No.

[State of Ohio]: Let me finish my question. Does it go back

more than a year prior to August 17, 2017?

[Manns]: No.

[State of Ohio]: Did you ever visit Mr. Lester at the address

of 21378 Raymond, Ohio -- I'm sorry, 21378 Titus Road,

Raymond, Ohio to purchase drugs?

[Manns]: Nope.

(Oct. 30, 2018 Tr., Vol. II, at 198). The State was attempting to elicit

testimony that Manns had previously purchased drugs from Lester

at the Raymond residence (present conduct at issue in the trial). See

Carter at ¶ 73; Hill at ¶ 51. However, Manns's testimony revealed

that she had not previously purchased drugs from Lester at the

Raymond residence. Even though the question posed to Manns by

the State may have involved unindicted-time frames, there is no

material prejudice to Lester, given, her response. See State v. Jones,

3d Dist. Logan No., 8-16-18, 2017-Ohio-4351, ¶ 10, quoting State

v. Glenn-Coulverson, 10th Dist. Franklin No. 16AP-265, 2017-

Ohio-2671, at ¶ 24, citing Issa, 93 Ohio St.3d at 64. Thus, the trial

court did not abuse its discretion by overruling the objection.

Lester's argument is without merit.

Carver's Testimony:

{¶47} Next, we turn to Carver's testimony. Carver testified to selling

drugs for Lester before and during the course of the indicted-time

frames at the Raymond residence. (Oct. 31, 2018 Tr., Vol. II, at 176-

178). Lester's trial counsel objected to this evidence pursuant to

Evid.R. 404(B) and requested the trial court to strike the testimony,

and to instruct the jury to disregard it. (Id. at 177). The trial court

sustained Lester's objection, but denied the request to strike, and

instead gave the jury a limiting instruction. (Id. at 177-178).

Consequently, we limit our analysis to those extrinsic acts (acts prior

to indicted-time frames) within the purview of Evid.R. 404(B). So,

if we assume without deciding that Carver's testimony meets the first

two steps of the Williams analysis, we still cannot conclude that

Carver's testimony (that she sold drugs prior to the indicted-time

frame for Lester) ‘is [ ] [unfairly] prejudicial “because the trial court

instructed the jury that this evidence could not be considered to show

that [Lester] acted in conformity with a character trait.” ’ ” Jones,

2017-Ohio-4351, at ¶ 13, quoting Wendel, 2016-Ohio-7915, at ¶ 28,

quoting Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, at ¶ 24,

(concluding “[t]he trial court's limiting instruction lessened any

prejudicial effect of the evidence”). (See Oct. 31, 2018 Tr., Vol. II,

at 176-178). Thus, any prejudicial effect did not substantially

outweigh the probative value of the evidence. See State v. Regan,

5th Dist. Delaware No. 13 CAA 08 0067, 2014-Ohio-3797, at ¶ 19.

See also Wendel at ¶ 28, citing Williams at ¶ 24.

Evid.R. 404(B) Notice Requirement Analysis

*12 {¶48} Next, we will address Lester's argument concerning

whether he was provided reasonable notice in advance of trial of the

State's intention to introduce “other-acts” evidence at trial under

Evid.R. 404. “Evid.R. 404 was amended in 2012 to adopt a notice

requirement.” State v. Nuzum, 6th Dist. Lucas No. L-15-1122, 2016-

Ohio-2744, ¶ 20. As a result of the amendment, “[t]he proponent of

other-acts evidence must provide ‘reasonable notice in advance of

trial’ of the general nature of any such evidence it intends to

introduce at trial.” State v. Yoder, 5th Dist. Licking No. 16-CA-54,

2017-Ohio-903, ¶ 24, quoting Evid.R. 404(B). “ ‘[T]he notice given

to the defense regarding “other crimes” evidence must be

sufficiently clear so as “to permit pretrial resolution of the issue of

its admissibility.” ’ ” Id., quoting State v. Tran, 8th Dist. Cuyahoga

No. 100057, 2014-Ohio-1829, ¶ 23, quoting United States v. Long,

814 F.Supp. 72, 74 (D. Kan. 1993). “Following its amendment, the

Ohio rule is now similar to the federal rule, which requires

reasonable notice of the general nature of any such evidence in order

to prevent unfair surprise.” Nuzum at ¶ 20, citing State v. Plevyak,

11th Dist. Trumbull No. 2013-T-0051, 2014-Ohio-2889, ¶ 12,

(citation omitted). “ ‘Whether notice is “reasonable” will depend on

the facts and circumstances of each case.’ ” Yoder at ¶ 24, quoting

Plevyak at ¶ 19, (citation omitted). Evid.R. 404(B)’s notice

requirement “should not be construed to exclude otherwise relevant

and admissible evidence solely because of a lack of notice, absent a

showing of bad faith.” 2012 Staff Note, Evid.R. 404.

{¶49} We note that, unlike other rules of evidence, the plain

language of Evid.R. 404(B) requires that the defendant receive

“reasonable notice in advance of trial”, not written notice of the

general nature of “other acts” evidence the State intends to introduce

at trial. Evid.R. 404(B). Compare Evid.R. 609(B) (requiring

“sufficient advance written notice of intent to use” a conviction

more than ten-years-old to impeach a witness).

{¶50} Given the specific facts and circumstances of this case, the

record supports that Lester was given “reasonable notice in advance

of trial” by the State of its intention to use “other-acts” evidence at

trial by virtue of its memorandums filed on August 21, 2018. (Case

No. 2018-CR-0012, Doc. No. 66); (Case No. 2018-CR-0061, Doc.

No. 45). See Jones, 2017-Ohio-4351, at ¶ 16; Plevyak, 2014-Ohio-

2889, at ¶ 20, 22. See also State v. Heiney, 6th Dist. Lucas No. L-

16-1042, 2018-Ohio-3408, ¶ 66; In re. T.N., 3d Dist. Marion No. 9-

15-36, 2016-Ohio-5774, ¶ 73.

{¶51} Nevertheless, Lester's trial counsel objected to the State's

“other-acts” evidence on the first day of trial, after the jury had been

selected, and before the parties gave their opening statements. (Oct.

29, 2018 Tr., Vol. I, at 98). Thus, we conclude that Lester's counsel

had actual notice that the State's evidence contained “other-acts”

evidence under Evid.R. 404(B) and R.C. 2945.59 prior to trial.

Consequently, we cannot say that Lester was unfairly surprised by

the State's use of the “other-acts” evidence because he had notice of

the State's intent to use it.

{¶52} Accordingly, we cannot conclude that the trial court abused

its discretion by admitting the testimonies of Righter, Manns, and

Carver or that the testimonies of Maynard, Frye, Earles, Holton, and

Wright amounted to plain error under the facts presented in the

record.

“Bad acts” of witnesses analysis

{¶53} Next, Lester argues that the State (in its case in chief) was not

permitted to offer evidence regarding a witness’ own criminal

conduct (injecting themselves and others with drugs) “as a testament

to [Lester's] bad character.” (Appellant's Brief at 11). See Evid.R.

404, 607, 611, 614. Indeed

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, subject to

the following exceptions:

* * *

Evidence of the character of a witness on the issue of

credibility is admissible as provided in Rules 607, 608, and

609.

Evid.R. 404(A) and (A)(3). Compare Evid.R. 404(A)(1), (2),

405(B).

{¶54} In our review of the record, we note that Lester objected to

the testimonies of Detective Nathan Stone (“Det. Stone”), Righter,

and Carver on the basis of relevancy. (Oct. 30, 2018 Tr., Vol. I, at

160). (Oct. 31, 2018 Tr., Vol. II, 170-172). (Nov. 1, 2018 Tr., Vol.

II, at 290-299). However, Lester did not object to the testimonies of

Czarnecki or Holton. Therefore, we will only review Lester's

arguments as to the testimonies of Det. Stone, Righter, and Carver

under an abuse-of-discretion standard. We will review the

testimonies of Czarnecki and Holton under plain error.

Nevertheless, regardless of the standard or the rule we apply, for the

following reasons the outcome is the same.

{¶55} Lester argues that he was prejudiced by the State's

discreditation of its own witnesses on direct examination with

evidence of the witnesses “bad acts”. We disagree. In our review of

the record, we conclude that the State was not attempting to impeach

its own witnesses, but was rather having each witness testify to the

events portrayed in Lester's surveillance video, from the Raymond

residence, which was offered as evidence by the State. See Evid.R.

104(A), (B); 901(A), (B)(1). The testimonies of Det. Stone, Righter,

Carver, Czarnecki, and Holton laid a foundation for and assisted

with the authentication of State's Exhibit 65 (a portable-hard drive),

and it created a timeline for the events depicted therein. We

conclude that Righter, Carver, Czarnecki, and Holton were not

testifying to inadmissible-character evidence under Evid.R.

404(A)(3) as Lester argues, but were only identifying their activities

depicted in the surveillance video.5 Det. Stone, on the other hand,

was testifying to his knowledge as it pertains to the contents of the

video related to his investigation. See Evid.R. 602, 901(B)(1). State

v. Koch, 2d Dist. Montgomery No. 28041, 2019-Ohio-4182, ¶ 51,

citing State v. Groce, 10th Dist. Franklin No. 18-AP-51, 2019-Ohio-

1007, ¶ 46, (holding that a witness who experienced the incident

depicted in the video and a detective who reviewed the video as part

of his investigation were both permitted to testify regarding the

contents of the surveillance video under Evid.R. 602). State v.

Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, ¶ 116, citing Evid.R.

901(B)(1) (stating “testimony of a witness with knowledge is valid

authentication”).

{¶56} Moreover, each witnesses’ testimony was a narrative of the

events depicted in the surveillance video and provided context for

the jury as to these events. Koch at ¶ 53, citing State v. Walker, 10th

Dist. Franklin No. 17-AP-588, 2019-Ohio-1458, ¶ 64 and State v.

Coots, 2d Dist. Miami No. 2014 CA 1, 2015-Ohio-126, ¶ 24,

(reasoning that “to the extent that testimony regarding the events

shown on the surveillance video provided context or additional

information that could be helpful to the jury, was permitted to

comment on the video).

{¶57} Accordingly, we cannot conclude that the trial court abused

its discretion by admitting the testimonies of Det. Stone, Righter,

and Carver. Moreover, we cannot conclude that there is any error

that rises to level of plain error as to the testimonies of Czarnecki

and Holton which caused a manifest miscarriage of justice under the

facts before us.

{¶58} Lester's second and third assignments of error are overruled.

State v. Lester, supra.

Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C.

§ 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990);

Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the

province of a federal habeas court to reexamine state court determinations on state law questions.

In conducting habeas review, a federal court is limited to deciding whether a conviction violated

the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68

(1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);

Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J. concurring).

Before a habeas petitioner can obtain review of a federal constitutional claim, he must have

fairly presented that claim to the state courts. If he has failed to do so, the claim is procedurally

defaulted. Conversely, a habeas court cannot review the state courts’ rulings on questions of state

law. Bradshaw v. Richey, 546 U.S. 74 (2005). Finally, not every state procedural rule is

enforceable under the Due Process Clause. “A state cannot be said to have a federal due process

obligation to follow all of its procedures; such a system would result in the constitutionalizing of

every state rule, and would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir.

1993), cert. denied, 509 U.S. 907 (1993).

The Third District’s decision on Assignments of Error Two and Three do not evince any

understanding that the court is deciding federal constitutional questions. Nor does Lester purport

to raise any such questions on direct appeal – the wording of the Second and Third Assignments

of Error do not refer to any specific constitutional rights – the language “substantial constitutional

rights” is insufficient.

Merely using talismanic constitutional phrases like “fair trial” or “due process of law” does

not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th

Cir. 2006); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987); McMeans v. Brigano, 228 F.3d

674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984). Mere

use of the words “due process and a fair trial by an impartial jury” are insufficient. Slaughter v.

Parker, 450 F.3d 224, 236 (6th Cir. 2006); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir.

2004)(same).

To preserve a federal constitutional claim for presentation in habeas corpus, the claim must

be "fairly presented" to the state courts in a way which provides them with an opportunity to

remedy the asserted constitutional violation, including presenting both the legal and factual basis

of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d

1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by

Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.

1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v.

Smith, 581 F.3d 410, 418 (6th Cir. 2009).

A claim is fairly presented if the petitioner

relied upon federal cases employing constitutional analysis; (2)

relied upon state cases employing federal constitutional analysis; (3)

phrased the claim in terms of constitutional law or in terms

sufficiently particular to allege a denial of a specific constitutional

right; or (4) alleged facts well within the mainstream of

constitutional law.

Hand v. Houk, 871 F.3d 390, 418 (6th Cir. 2017). The only federal cases cited by Lester on appeal

are Berger v. U.S., 295 U.S. 78 (1935), a prosecutorial misconduct case, and Strickland. There is no

hint of a Confrontation Clause claim or a claim that failure to comply with the notice of other bad acts

portion of Ohio R. Evid. 404 violates the Due Process Clause.

Ground Two is procedurally defaulted by Lester’s failure to fairly present it to the state courts

as a federal constitutional claim. It should be dismissed with prejudice on that basis.

Ground Three: Prosecutorial Misconduct

In his Third Ground for Relief, Lester claims he was denied a fair trial by the pervasive

misconduct of the prosecutor including introducing the evidence complained of in Ground Two,

eliciting a “wide array of improper testimony,” making improper comments on credibility, and

threatening and improperly impeaching a witness.

Lester pleaded prosecutorial misconduct as his Fourth Assignment of Error and the Third

District decided it as follows:

{¶69} In his fourth assignment of error, Lester asserts that during

trial and during closing arguments that the prosecutor engaged in

prosecutorial misconduct denying him a fair trial.

Standard of Review

{¶70} “The test for prosecutorial misconduct is whether the remarks

were improper and, if so, whether they prejudicially affected the

accused's substantial rights.” State v. Liles, 3d Dist. Allen No. 1-14-

61, 2015-Ohio-3093, ¶ 31, citing State v. Smith, 14 Ohio St.3d 13,

14 (1984), (citation omitted). “ ‘To establish prejudice, a defendant

must show that a reasonable probability exists that, but for the

prosecutor's improper remarks, the result of the proceeding would

have been different. Thus, “[n]ot every intemperate remark by

counsel can be a basis for reversal.” ’ ” Id., quoting State v. Porter,

4th Dist. Meigs No. 10CA15, 2012-Ohio-1526, ¶ 20, quoting

Landrum, 53 Ohio St.3d at 112. “In making this determination, an

appellate court should consider several factors: (1) the nature of the

remarks, (2) whether an objection was made by counsel, (3) whether

corrective instructions were given by the court, and (4) the strength

of the evidence against the defendant.” State v. Braxton, 102 Ohio

App.3d 28, 41 (8th Dist.1995), (citations omitted).

Analysis

{¶71} In his argument, Lester asserts that the State improperly

impeached its own witnesses through impermissible-character

attacks. However, since we have determined in Lester's third

assignment of error that the testimonies of the witnesses were not

impermissible-character attacks, but rather narrations of States

Exhibit 65 offered to lay a foundation, assist with authentication,

create a timeline, and provide context for the exhibit for the jury, we

reject this argument.

{¶72} We now turn to Lester's argument that Heather Carpenter

(“Carpenter”) was harassed and threatened by the State which

inflamed the jury and resulted in misconduct. Importantly, Lester

objected to the admission of Carpenter's testimony on the basis of

relevancy and argued that the presence of Carpenter's son in the

surveillance video (State's Exhibit 65) would inflame the jury. (Oct.

31, 2018 Tr., Vol. II, at 236-237). Nevertheless, the trial court

overruled the objection and permitted Carpenter's testimony as to

Counts One, Two, and Eight of the Raymond-residence case.

Thereafter, the State questioned Carpenter attempting to get her to

admit that she purchased drugs from Lester or sold drugs for Lester

when she was absent from the room where she left her son. (Id. at

234-243); (See State's Ex. 65). When testifying, Carpenter was

uncooperative and evasive, and subsequently attempted to assert her

Fifth-Amendment privilege which resulted in Lester's trial counsel's

objecting for a second time followed by a request for the trial court

to appoint Carpenter counsel after asserting her Fifth Amendment

privilege. (Oct. 31, 2018 Tr., Vol. II, at 243, 245-247). Thereafter,

the trial court instructed the jury under Crim.R. 5(A)(2) and (3) as

to the inferences to be drawn from Carpenter's refusal to testify and

Carpenter was immediately excused with no further examination by

the State or Lester. (Id. at 247-251). Compare State v. Arnold, 147

Ohio St.3d 138, 2016-Ohio-1595, ¶ 39, citing State v. Dinsio, 176

Ohio St. 460, 468 (1964), (concluding “the key in Dinsio was the

fact that the prosecutor, after the witness claimed the privilege, used

the witness's prior statement to ask him a series of questions in what

amounted to an effort to force the witness to repeatedly assert his

right in the presence of a jury and to allow the jury to hear ‘innuendo

evidence or inferences of evidence’ that the state could not get from

the witness directly.”).

{¶73} Under the presented facts, it is not prosecutorial misconduct

for the State to call a witness, who may claim a Fifth-Amendment

privilege, by asking that witness questions. Dinsio at 466, citing

Commonwealth v. Granito, 326 Mass. 494, 499, 95 N.E.2d 539

(Mass. 1950), (“The possibility that a witness may claim the

privilege does not prohibit the prosecutor from asking questions.”).

Moreover, Lester cannot establish prejudice here because the trial

court gave the jury a curative instruction which was sufficient to

relieve any prejudice Lester may have suffered. State v. LaMar, 95

Ohio St.3d 181, 2002-Ohio-2128, ¶ 170, citing State v. Loza, 71

Ohio St.3d 61, 75 (1994), overruled on other grounds, (“The trial

court's curative instruction was sufficient to relieve any prejudice.”).

Consequently, Lester has failed to establish the second prong of the

prosecutorial-misconduct test.

{¶74} Next, Lester asserts that the State committed misconduct

when it vouched and bolstered the credibility of witnesses and by

making improper comments (regarding Lester's guilt) during closing

argument. Addressing prosecutorial misconduct allegations related

to closing arguments, “[p]arties have wide latitude in their closing

statements, particularly ‘latitude as to what the evidence has shown

and what inferences can be drawn from the evidence.’ ” State v.

Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-Ohio-7085, at ¶

13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, at

¶ 213. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 159,

(“A prosecutor may state an opinion if based on evidence presented

at trial.”). “ ‘The test regarding prosecutorial misconduct in closing

arguments is whether the remarks were improper and, if so, whether

they prejudicially affected substantial rights of the defendant.” State

v. Rasawehr, 3d Dist. Mercer No. 10-19-15, 2020-Ohio-429, ¶ 13,

quoting State v. Encarnacion, 10th Dist. Franklin No. 16AP-817,

2017-Ohio-5530, ¶ 10, citing State v. Smith, 14 Ohio St.3d at 14. “

‘A prosecutor's isolated comments are not to be taken out of context

and given their most damaging meaning.’ ” Id., quoting

Encarnacion at ¶ 10, citing State v. Noling, 98 Ohio St.3d 44, 2002-

Ohio-7044, ¶ 94, citing Donnelly v. DeChristoforo, 416 U.S. 637,

647, 94 S.Ct. 1868 (1974). “ ‘Instead, an appellate court must review

a closing argument in its entirety to determine whether prejudicial

error occurred.’ ” Id., quoting Encarnacion at ¶ 10, citing Noling at

¶ 94, citing State v. Frazier, 73 Ohio St.3d 323, 342 (1995).

{¶75} Initially, we note that Lester did not object to any of the

prosecutor's statements made during closing argument, and

therefore we apply plain error. State v. Davis, 3d Dist. Seneca No.

13-16-30, 2017-Ohio-2916, ¶ 30, citing State v. Potts, 3d Dist.

Hancock No. 5-16-03, 2016-Ohio-5555, ¶ 85, citing State v. Smith,

3d Dist. Hardin No. 6-14-14, 2015-Ohio-2977, ¶ 63 and Crim.R.

52(B), (“If defense counsel did not object at trial to the allegedly

prejudicial remarks, then all but plain error is waived.”). “ ‘A court

recognizes plain error with the utmost caution, under exceptional

circumstances, and only to prevent a miscarriage of justice.’ ” Id.,

quoting State v. Stevens, 3d Dist. Allen No. 1-14-58, 2016-Ohio-

446, ¶ 55, quoting Smith, 2015-Ohio-2977, at ¶ 63. An appellate

court “ ‘may reverse only when the record is clear that defendant

would not have been convicted in the absence of the improper

conduct.’ ” Id., quoting Smith, 2015-Ohio-2977, at ¶ 63, citing

Williams, 79 Ohio St.3d at 12.

{¶76} Here, Lester's argument raises issue with several comments

made by the State during its closing argument which he argues were

attempts to garner sympathy for the witnesses. (See Nov. 2, 2018 Tr.

at 18). “ ‘We evaluate the allegedly improper statements in the

context of the entire trial.’ ” Stevens at ¶ 72, quoting State v.

McGuire, 3d Dist. Allen No. 1-13-47, 2015-Ohio-1887, ¶ 82, citing

State v. Treesh, 90 Ohio St.3d 460, 464 (2001), citing State v.

Keenan, 66 Ohio St.3d 402, 410 (1993). Lester's first allegation is

that the prosecutor garnered sympathy for several witnesses by

calling them “addicts”. Regarding his allegation, taken in context,

the prosecutor was summarizing those witnesses’ testimonies

regarding their admitted drug abuse when characterizing those

witnesses as “addicts” which was permissible and based on the

evidence presented during trial. Id., (concluding that after taking the

statements in context the prosecutor was summarizing the testimony

of the witness). The prosecutor's statements were not improper.

Therefore, we reject Lester's first allegation as meritless.

{¶77} Then, Lester argues that the prosecutor's statements regarding

the prosecutor's familiarity with “12 step program[s]” when

summarizing Maynard's testimony and his reference to Holton's

testimony as “fabulous” and “honest” were examples of improper

vouching or bolstering. (Nov. 2, 2018 Tr. at 33, 35). “An attorney

may not express a personal belief or opinion as to the credibility of

a witness.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 232,

citing Williams, 79 Ohio St.3d at 12. Improper “vouching occurs

when the prosecutor implies knowledge of facts outside the record

or places his or her personal credibility in issue.” Id., citing State v.

Jackson, 107 Ohio St. 3d 53, 2005-Ohio-5981, ¶ 117. Upon review,

we conclude that the prosecutor did not improperly vouch for or

bolster Maynard and Holton's credibility. That is—the prosecutor

did not state that he personally believed Maynard or Holton, nor did

he place his (the prosecutor's) credibility at issue. Instead, he merely

argued that certain facts, presented during the trial, demonstrated

that various witnesses were credible witnesses. State v. Green, 90

Ohio St.3d 352, 374 (2000), (concluding that the prosecutor

properly argued facts to support witness's credibility and that he did

not improperly vouch for her).

{¶78} Next, Lester argues that the prosecutor improperly appealed

to the jury's sense of fairness during his rebuttal argument with the

following statement:

[State of Ohio]: The State of Ohio, as represented as best I

very much could, ask that you return guilty verdicts against

Jerod Lester for each of these 12 counts in the two different

cases. Why? Just like we held those other people

accountable who testified against him, we must hold Jerod

Paul Lester accountable. Thank you.

(Emphasis added.) (Nov. 2, 2018 Tr. at 67). The prosecutor's

statement is not appealing to the jury's sense of fairness, but rather

the prosecutor is offering a summary of the testimony that the jury

heard regarding one of the witnesses who was convicted as a result

of his involvement in Lester's-criminal enterprise. (See Oct. 30,

2018 Tr., Vol. I, at 83). See also State v. Klapka, 11th Dist. Lake

No. 2003-L-044, 2004-Ohio-2921, ¶ 44, citing Frazier v. Cupp, 394

U.S. 731, 735 (1969).

{¶79} In our review of the record we cannot conclude that the

statements of the prosecutor made during closing argument resulted

in a miscarriage of justice.

{¶80} Lastly, Lester argues that the cumulative effect of

prosecutorial misconduct deprived him of a fair trial. Because we

have determined that no prosecutorial misconduct occurred based

on the facts before us, there is no basis for cumulative error. State v.

Carter, 2017-Ohio-1233, at ¶ 136, (concluding that because Carter's

claims did not rise to the level of prosecutorial misconduct that there

is no basis for cumulative error). Accordingly, Lester's fourth

assignment of error is overruled.

State v. Lester, supra.

The Third District thus decided this claim on the merits and its decision is entitled to deference

unless Lester can show it is contrary to or any objectively unreasonable application of clearly

established Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

In Serra v. Michigan Dept of Corrections, 4 F.3d 1348 (6th Cir. 1993), the Sixth Circuit

identified factors to be weighed in considering prosecutorial misconduct claims:

In every case, we consider the degree to which the remarks

complained of have a tendency to mislead the jury and to prejudice

the accused; whether they are isolated or extensive; whether they

were deliberately or accidentally placed before the jury, and the

strength of the competent proof to establish the guilt of the accused.

Id. at 1355-56, quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982)(citation omitted).

The misconduct must be so gross as probably to prejudice the defendant. Prichett v. Pitcher, 117

F.3d 959, 964 (6th Cir.), cert. denied, 522 U.S. 1001 (1997)(citation omitted); United States v.

Ashworth, 836 F.2d 260, 267 (6th Cir. 1988). Claims of prosecutorial misconduct are reviewed

deferentially on habeas review. Thompkins v. Berghuis, 547 F.3d 572 (6th Cir. 2008), rev’d on

other grounds, 560 U.S. 370 (2010), citing Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004),

cert. denied, 544 U.S. 921 (2005).

In Parker v. Matthews, 567 U.S. 37 (2012)(per curiam), the Supreme Court summarily

reversed the Sixth Circuit, Matthews v. Parker, 651 F.3d 489 (6th Cir. 2011), noting that the

“Darden standard is a very general one, leaving [state] courts ‘more leeway . . . in reaching

outcomes in case-by-case determinations.’” Matthews at *18, quoting Yarborough v. Alvarado,

541 U.S. 652, 664 (2004), and criticizing the Sixth Circuit’s reliance on its much more detailed

standard in Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006).

Lester does not cite any conduct of the prosecutor which he then compares with holdings

of the Supreme Court that such conduct is improper. Thus he has not shown that the Third

District’s decision is an unreasonable application of the holding of a relevant Supreme Court

precedent. Absent such a showing, the Third District’s decision on prosecutorial misconduct is

entitled to deference. On that basis, Ground Three should be dismissed with prejudice.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the

Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this

conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that

the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not

be permitted to proceed in forma pauperis.

May 17, 2023.

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Such objections shall specify the portions of the Report objected to and

shall be accompanied by a memorandum of law in support of the objections. A party may respond

to another party’s objections within fourteen days after being served with a copy thereof. Failure

to make objections in accordance with this procedure may forfeit rights on appeal. #

s/ Michael R. Merz

United States Magistrate Judge

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