# Lester v. Forshey

> District Court, S.D. Ohio · May 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10382398

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10382398

## How later opinions describe it (automated extraction)

- concluding that after taking the statements in context the prosecutor was summarizing the testimony of the witness

## Opinion text

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

31

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10382398. Public record. Not legal advice.