State v. Sims

Citation: 2021 Ohio 4009Docket: 109335

Court: Ohio Court of Appeals; November 5, 2021; Ohio; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Jerry Sims, Jr. applied to reopen his appeal in *State v. Sims*, claiming ineffective assistance of appellate counsel for failing to properly argue issues concerning the admission of other acts evidence, expert testimony, and manifest weight. In 2017, Sims was charged with 11 counts, including aggravated murder, after the body of Jamarr Forkland was found in a burning van. Following a jury trial, he was convicted and sentenced to life in prison with eligibility for parole after 40.5 years. Sims's appellate counsel raised seven assignments of error, all of which were rejected by the court in April 2021. On July 8, 2021, Sims filed a motion to reopen his appeal, asserting that his appellate counsel failed to address specific issues: the trial court's admission of other acts evidence, the failure to present expert testimony, and the argument that his conviction was against the manifest weight of the evidence due to credibility issues with a witness. The state opposed the motion, contending that the first and third issues were already addressed by appellate counsel, and argued that the second issue did not warrant reopening. The court ultimately denied Sims's application to reopen the appeal.

The standard for reopening an appeal under App.R. 26(B) for ineffective assistance of counsel requires the appellant to demonstrate that appellate counsel’s performance was deficient and that this deficiency caused prejudice, following the benchmarks established in Strickland v. Washington and State v. Reed. Specifically, the appellant must show that counsel's performance was objectively unreasonable and that there is a reasonable probability the appeal's outcome would have differed but for counsel’s errors. 

In addressing claims of manifest weight of the evidence, the court must weigh the entirety of the evidence and assess witness credibility to determine if the jury’s verdict constituted a manifest miscarriage of justice. A new trial is only warranted in exceptional cases where the evidence heavily undermines the conviction. Since the manifest weight argument had already been raised in the direct appeal, it cannot be relitigated due to principles of res judicata. 

Moreover, App.R. 26(B)(2)(c) stipulates that applicants must present new assignments of error or arguments not previously considered on the merits. The manifest weight argument was previously adjudicated, and Sims failed to demonstrate it was considered on an incomplete record due to deficient representation. He reiterates arguments regarding the reliability of witness Erica Campbell's testimony, but the court had already found her testimony to be coherent and consistent during the trial, dismissing claims of her unreliability as unspecific.

The court reviewed claims of inconsistent prior statements raised during cross-examination, concluding that the outcome would not have changed even if Sims highlighted these statements. Sims argued that the testimony of Antonio Roberson, who confessed to the crimes for which Sims was convicted, should have been emphasized more in the appeal. The court noted that it had already considered Roberson's statements and the detectives' testimonies, including Detective Marche's findings that contradicted Roberson's claims about another murder. Despite reviewing all evidence, the court did not find it sufficient to warrant an acquittal.

Sims contended that his appellate counsel was ineffective for failing to argue that the trial court improperly admitted other-acts evidence under Evid. R. 404(B), which generally prohibits such evidence to prove character. He cited three specific pieces of evidence that he believed were improperly admitted. Although these issues were raised in the direct appeal under different frameworks, appellate counsel had argued that the prosecutor engaged in misconduct regarding this evidence. The court had previously ruled these claims as harmless error and decided in favor of the state, citing principles of res judicata to prevent relitigation of these claims. Furthermore, Sims did not demonstrate a genuine issue regarding his appellate counsel's effectiveness, as the admission of improper other-acts evidence is typically reviewed under mixed standards, and a plain error analysis applies when no objection is raised.

A deferential standard similar to that applied in ineffective assistance of counsel claims was utilized in the direct appeal, with the admission of other-acts evidence also subjected to harmless error analysis. Previous claims of improper admission of such evidence were reviewed and found to contain no plain, harmless, or reversible errors. The state presented compelling testimonial evidence of the appellant's guilt, indicating that any error in evidence admission was harmless. Consequently, the appellant, Sims, did not succeed in establishing a valid claim of ineffective assistance of appellate counsel regarding these errors.

In a second assignment of error, Sims contended that appellate counsel was ineffective for not challenging trial counsel’s failure to present expert testimony on cell phone location data. The effectiveness of counsel is assessed under the Strickland standard, which requires proof that the counsel's performance fell below reasonable representation and resulted in prejudice. Trial counsel's strategy involved cross-examining based on cell phone records to demonstrate that the phones were not present at the crime scene. This approach is considered a debatable trial tactic and does not constitute ineffective assistance. Previous cases have upheld that failure to request experts or rely on cross-examination is a legitimate tactical decision, reinforcing that trial counsel’s choices in this instance were not ineffective.

The court addressed an assignment of error claiming ineffective assistance of trial counsel due to the failure to call an expert witness to counter the state’s DNA testimony. Citing State v. Powell, the court concluded that relying on cross-examination instead of presenting a defense expert does not equate to ineffective assistance. The court emphasized the speculative nature of the argument, noting that without a supporting expert report, any assertions about potential expert testimony are mere speculation, which cannot form a basis for an appellate argument. The state's expert had provided a report and testified on cell phone location data relevant to the case. Sims, claiming ineffective assistance of counsel, failed to demonstrate how a defense expert could have effectively challenged this testimony. The court found that speculation does not create a valid issue regarding trial counsel's performance, leading to the denial of Sims's application for reopening, with judges Sheehan, Kilbane, and Gallagher concurring.