State v. Morton

S
[Cite as State v. Morton, 2021-Ohio-581.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 109200
                 v.                               :

JEREMIAH MORTON,                                  :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: March 4, 2021


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-19-636658


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Marcus A. Henry and Tasha L. Forchione,
                 Assistant Prosecuting Attorneys, for appellee.

                 Ariel Burr, for appellant.


LARRY A. JONES, SR., P.J.:

                   Defendant-appellant Jeremiah Morton (“Morton”) appeals his rape,

kidnapping, and aggravated burglary convictions that were rendered after a jury

trial. He contends that he received ineffective assistance of trial counsel and that
the cumulative effect of trial counsel’s errors deprived him of a fair trial. For the

reasons that follow, we affirm.

                       Factual and Procedural History

              The charges in this case came about after an encounter Morton had

with individuals who were developmentally disabled, and one who had psychiatric

challenges.   On an afternoon in December 2018, two of the developmentally

disabled persons and the one individual with psychiatric challenges went to a

Metro PCS store to purchase a new cell phone. The group consisted of one male

and two females. There, they encountered Morton, who introduced himself to the

group as “Tony.” He told them that he could help them get a good deal on a new

phone (which did not materialize). No one in the group had previously met or

known of Morton.

              When the group left the cell phone store, Morton left with them and

“tagged along.” The group arrived at the house of the one male in the group. The

house was an assisted-living house maintained by the Cuyahoga County Board of

Developmental Disabilities; it was located in a neighborhood with a cluster of

homes maintained by the Board. Everyone, including Morton, went into the

house. According to the male owner, he tried to stop Morton from entering the

house, but Morton just “barged” his way in.

              Once inside the house, Morton started cleaning and tidying up. He

then told the group he was going to make dinner for them and started cooking.
There was also alcohol (vodka) and Morton was making drinks. For the most part,

the group was having fun with him ─ he was funny and friendly.

                Another friend, M.D., a female, who had not previously been with

the group, came to the house. M.D. testified that she had an “iffy” feeling about

Morton. Morton referred to himself as “Uncle Tony,” he was flirting with one of the

other females and trying to get her to go into the bathroom with him, and he asked

all the females if they had ever had sex with a black man. Feeling uncomfortable,

M.D. left the house.

                Later in the evening, the victim, T.B., arrived at the house; she

testified that she had been dropped off by her mother. T.B. was 27 years old at the

time, had Asperger’s Syndrome, and was on antidepressant medication for a

“strange kind of migraine” she suffered from. T.B. testified that Morton gave her,

and she consumed, two cups of a drink consisting of vodka and ginger ale. She

testified that she is an occasional social drinker, but had never had vodka before

that evening.      She believed that the combination of the vodka and her

antidepressant medication caused her to become lethargic and drunk.

                After having the drinks, Morton asked T.B. if he could talk to her in

the bathroom. T.B. agreed, believing that they were just going to talk. Her friends

tried to stop Morton from taking T.B. into the bathroom, but Morton told them

that he and T.B. and were just going to talk. The friends testified that Morton had

to help T.B. into the bathroom.
              T.B. testified that once in the bathroom, Morton orally raped her.

She told Morton “no,” but Morton insisted and she acquiesced because she was

scared. T.B. testified that after the oral rape, she attempted to leave the bathroom,

but Morton forced her against the bathroom sink and vaginally raped her. Again,

T.B. protested, but Morton moved her back and forth from the toilet to the sink

and continued to rape her.

              Meanwhile, M.D., the friend who had an uneasy feeling about

Morton and who had left the house, had called the police. When Morton and T.B.

exited the bathroom, the police were at the house. T.B. did not tell the police at

that time that Morton had raped her. Morton gave the police a fake name, and

after everyone had been questioned, the police escorted Morton from the

apartment ─ telling him he was not welcome there.

              By this time, M.D. was back at the house and she and T.B. talked

about what happened in the bathroom; M.D. testified that T.B. was crying and

rocking back and forth. After talking with T.B., M.D. called the police again.

Different officers arrived, and after talking with T.B. and her friends they

requested an ambulance to transport T.B. to the hospital for a sexual-assault

examination. One of the officers was wearing a body camera, which captured the

police’s interaction with T.B. and her friends. The recording from the body camera

was discussed during the testimony at trial, but it was not admitted into evidence.

The results of the rape kit revealed that an epithelial fraction of Morton’s DNA was

found in T.B.’s perianal and vaginal area.
               Morton was arrested and charged with four counts of rape; one

count of kidnapping; and one count of aggravated burglary.           The jury found

Morton guilty on all counts. The trial court sentenced him to a 20-year prison

term. Morton now appeals and raises the following two assignments of error for

our review:

      I.      Appellant was deprived of his constitutional right to effective
              assistance of counsel when trial counsel failed to, (A) object to
              prosecutorial misconduct, (B) effectively challenge the
              credibility of witnesses during cross examination, (C) effectively
              impeach witnesses’ prior inconsistent statements during cross
              examination, and (D) introduce exculpatory and mitigating
              evidence.

      II.     The cumulative effect of error throughout the trial violated
              Appellant’s Sixth Amendment right to a fair trial.

                                 Law and Analysis

Ineffective Assistance of Counsel

               In his first assignment of error, Morton contends that his trial

counsel was ineffective based on counsel’s failure to (1) object to instances of

prosecutorial misconduct; (2) effectively cross-examine witnesses in light of their

memory issues and developmental disabilities; (3) effectively cross-examine

witnesses in light of inconsistencies in their prior statements; and (4) introduce

exculpatory and mitigating evidence.

               To prevail on a claim of ineffective assistance of counsel, a criminal

defendant must establish (1) deficient performance by counsel, i.e., performance

falling below an objective standard of reasonable representation, and (2) prejudice,

i.e., a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. Strickland v. Washington, 

466 U.S. 668

,

687, 

104 S. Ct. 2052

, 

80 L. Ed. 2d 674

(1984); State v. Short, 

129 Ohio St. 3d 360

,

2011-Ohio-3641, 

952 N.E.2d 1121

, ¶ 113. Failure to satisfy either part of the test is

fatal to the claim. State v. Bradley, 

42 Ohio St. 3d 136

, 143, 

538 N.E.2d 373

(1989).

               In Ohio, a properly licensed attorney is presumed competent. State

v. Gondor, 

112 Ohio St. 3d 377

, 2006-Ohio-6679, 

860 N.E.2d 77

, ¶ 62. Thus, in

reviewing a claim of ineffective assistance of counsel, we must indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action “might be considered sound

trial strategy.” Strickland at 697.

               Morton contends that the assistant prosecuting attorney engaged in

misconduct in numerous statements he made in either opening statement or

closing argument, and defense counsel failed to object.       Parties are generally

granted considerable latitude in presenting opening statements, so long as the

matters referred to can be shown by competent or admissible evidence. Columbus

v. Hamilton, 

78 Ohio App. 3d 653

, 657, 

605 N.E.2d 1004

(10th Dist.1992). Parties

are also accorded great latitude in closing arguments. State v. Maurer, 15 Ohio

St.3d 239, 269, 

473 N.E.2d 768

(1984).

Defendant’s Right to Remain Silent

               Morton first contends that the assistant prosecuting attorney

engaged in misconduct in closing argument with the following statement, which
Morton contends was a reference to Morton’s decision not to testify: “Keep in

mind ladies and gentlemen, that a defense to forcible rape is consent. You are to

consider the evidence that you have heard and seen in this courtroom. What

evidence have you heard or seen that she said anything but no?”

              Morton is correct that a prosecutor’s comments regarding a

defendant’s refusal to testify violate the accused’s Fifth Amendment right to

remain silent. See Griffin v. California, 

380 U.S. 609

, 

85 S. Ct. 1229

, 

14 L. Ed. 2d 106

(1965), syllabus. Prosecutors’ comments on a defendant’s refusal to testify

have always been looked upon with extreme disfavor because they raise an

inference of guilt from the defendant’s decision to remain silent.          State v.

Thompson, 

33 Ohio St. 3d 1

, 14, 

514 N.E.2d 407

(1987). In effect, such comments

penalize a defendant for choosing to exercise a constitutional right.

Id. Prosecutors must therefore

take care not to equate the defendant’s silence to guilt.

Id., citing State v.

Rogers, 

32 Ohio St. 3d 70

, 

512 N.E.2d 581

(1987).

              While direct comment on an accused’s failure to testify does violate

the Fifth Amendment’s self-incrimination clause, “[a] reference by the prosecutor

in closing argument to uncontradicted evidence is not a comment on the accused’s

failure to testify, where the comment is directed to the strength of the state’s

evidence and not to the silence of the accused, and the jury is instructed not to

consider the accused’s failure to testify for any purpose.” State v. Ferguson, 5 Ohio

St.3d 160, 

450 N.E.2d 265

(1983), paragraph one of the syllabus.
              The assistant prosecutor’s reference, in the above-mentioned

remarks, to the uncontradicted evidence was directed to the strength of the state’s

evidence. In fact, the assistant prosecuting attorney reiterated that it was the

state’s burden of proof several times during his opening statement and voir dire.

For example, one potential juror, a human resources professional, indicated that

she was used to listening to “both sides of a story” at work.          The assistant

prosecuting attorney reminded the potential juror that it was solely the state’s

burden of proof, and questioned the juror if she could be fair and impartial if she

only heard “one side of the story.” Moreover, the trial court instructed the jury not

to consider Morton’s decision to not testify for any purpose.

              Even if Morton was the only potential witness who could have

contradicted the victim’s testimony, the analysis does not change. See Ferguson at

163 (“The thrust of [the defendant’s] contention is that he was the only potential

witness in a position to contradict the victim’s testimony.        As a result, [the

defendant] argues that references to uncontradicted evidence necessarily focus

attention on the failure of the accused to take the stand. We disagree.”).

              In light of the above, defense counsel was not ineffective for not

objecting to the assistant prosecuting attorney’s remarks.

Facts not in Evidence and Misstatements of Evidence

              Morton next contends that, without objection from the defense, the

assistant prosecuting attorney argued facts not in evidence and misstated evidence

numerous times.     The first instance Morton contends occurred when, in his
opening statement, the assistant prosecuting attorney stated, “What you will learn

is Mr. Morton does not know these people.            He’s seen them around the

neighborhood, but he does not know them, but he knows that, from what he’s seen,

they are developmentally disabled.” The second statement he complains of, also

made in opening statement, was as follows: “He knew there was something wrong

with them; and when [T.B.] shows up, he knows ─ she shows up because her mom

drops her off. Almost a 30-year-old woman whose mom dropped her off at this

house.”

              Morton contends that these statements implicated his Fifth

Amendment right; that is, he was the only person who would have been able to

testify as to whether he knew the group. But the individuals also testified that they

did not know Morton ─ they initially encountered him in the Metro PCS store, and

thereafter Morton spent the entire day with them. It is true that the evidence did

not establish that Morton had seen them around the neighborhood. But he did

have an opportunity to see and interact with them at the cell phone store. And the

testimony demonstrated that while the individuals were “functioning” adults, there

were indicators that they may have had disabilities. A reasonable inference from

that could be that Morton observed the group and singled them out as a group he

could latch on to. Thus, the assistant prosecuting attorney’s statements were

proper for what he believed the strength of the state’s case would be. Defense

counsel’s failure to object to the fleeting remark that Morton had seen the group

around the neighborhood did not rise to ineffective assistance of counsel.
              The remaining statements Morton cites as objectionable occurred

during closing argument, when the assistant prosecuting attorney argued the

following: (1) “[T.B.] was substantially impaired because of autism”; (2) “[Morton]

gave the police a different name. He did that because he knew sooner or later in

that day something was going to take place that he didn’t want to answer for, and

that’s why he gave them a fake name”; and (3) “[T.B.] testified that she never drank

alcohol before.”

              In regard to the statement about T.B.’s autism, Morton contends

that the statement was not supported by any testimony and, therefore, the

“misstatement of evidence [was] meant to tug at the heartstrings of the jury and

enrage them.” We are required to look at the closing argument as a whole to

determine whether it deprived Morton of a fair trial or prejudiced him. State v.

Were, 

118 Ohio St. 3d 448

, 2008-Ohio-2762, 

890 N.E.2d 263

, ¶ 198. Throughout

the closing argument, the assistant prosecuting attorney argued that the

combination of the medicine T.B. took with the alcohol impaired her; he also noted

her Asperger’s diagnosis. The record supported the state’s argument. T.B. testified

that the combination of the alcohol and her medicine made her feel drunk and

lethargic. And her friends testified that Morton had to help her to the bathroom.

The assistant prosecuting attorney’s statement neither deprived Morton of a fair

trial nor prejudiced him. Defense counsel was not ineffective for not objecting.

              The next alleged misstatement Morton cites is the assistant

prosecuting attorney’s argument that Morton gave the police a fake name because
there was something he did not want to answer for. That was not a misstatement

─ Morton gave two different names during the relevant time frame: one name

(“Tony”) to the group of individuals and another name (“Malcom Cline”) to the

police. Prosecutors may draw reasonable inferences from the evidence at trial,

commenting on those inferences during closing argument. State v. Lipkins, 10th

Dist. Franklin No. 16AP-616, 2017-Ohio-4085, ¶ 23. It was a reasonable inference

that Morton gave fake names to the group and to the police because he wanted to

conceal his identity and, therefore, counsel was not ineffective for failing to object.

               The final alleged misstatement Morton contends deprived him of a

fair trial was the assistant prosecuting attorney’s statement that T.B. never drank

alcohol before. T.B. did testify that she was an occasional, social drinker. But she

did testify that she had never had vodka before. Her friends also testified that she

was not a heavy drinker. Based on the testimony, along with the trial court’s

instructions that opening statements and closing arguments were not evidence, the

assistant prosecuting attorney’s statement did not deprive Morton of a fair trial

and defense counsel was not ineffective for not objecting. Moreover, shortly after

the assistant prosecuting attorney made the argument about T.B. never having had

alcohol before, he argued to the jury, “I wrote down what she said * * * she said she

never had vodka before.”

               In light of the above, we find no merit to Morton’s contention that

his counsel was ineffective for failing to object to alleged facts not in evidence and

misstatements of evidence.
Witness Vouching

              Morton’s next ground for ineffective assistance of counsel was

counsel’s failure to object to the assistant prosecuting attorney vouching for two of

the state’s witnesses during closing argument. The assistant prosecutor argued as

follows in regard to T.B.’s testimony:

      When you are deciding whether or not you believe what she told you,
      think about did she have a motivation to lie to you? She told her
      friends what Jeremiah Morton did to her. She told the police. She
      told the detective what Jeremiah Morton did to her. She went to the
      hospital. She submitted herself to an invasive medical procedure.
      She came in here and sat and told 12 complete strangers in open court
      what he did to her. What does she stand to gain from that? What
      motivation does she have to lie about what he did to her in the
      bathroom?

              The assistant prosecuting attorney made a similar statement about

another one of the state’s witnesses arguing “what motive did she have to lie?”

              It is improper for a prosecutor to vouch for a witness; that is, to

express an opinion or personal belief as to the credibility of that witness by

“imply[ing] knowledge of facts outside the record or by plac[ing] the prosecutor’s

personal credibility in issue.” State v. Jackson, 

107 Ohio St. 3d 53

, 2005-Ohio-

5981, 

836 N.E.2d 1173

, ¶ 117, citing State v. Keene, 

81 Ohio St. 3d 646

, 666, 

693 N.E.2d 246

(1998); see also State v. Williams, 

79 Ohio St. 3d 1

, 12, 

679 N.E.2d 646

(1997).   But a prosecutor may argue that the other evidence corroborates a

witness’s testimony, especially when the witness’s credibility is attacked. Jackson

at ¶ 120. And the prosecutor may note that a witness lacked a motive to lie, because

the witness was testifying against the self-interest of safety, where the comment is
supported by the record. See

id. That is what

occurred in this case, not improper

vouching or improper reference to matters outside of the evidence.

Inflaming the Jury

               Morton’s next contention of ineffective assistance of counsel based

on prosecutorial misconduct relates to an allegation of inflaming the jury. At trial,

one of the state’s witnesses testified that while Morton and T.B. were in the

bathroom she thought she “heard a little bit of bumping, but that’s about it and

whining, but that’s it.” The witness testified that after Morton left, T.B. “was sitting

on the toilet. She looked a little nervous, but that is normal [T.B.] rocks a little bit

nervously. She’s always somewhat nervous looking.”

               In reference to that testimony during closing argument, the assistant

prosecuting attorney argued that T.B. “wince[d] out in pain,” and that when her

friend saw T.B. after, T.B. was “shaking,” she was “trying to cope.” Morton claims

that the assistant prosecuting attorney misstated the testimony so as to inflame the

jury. Another one of the state’s witnesses, however, did specifically testify that T.B.

was “shaking and crying” as the police escorted Morton off the premises. Further,

the distinction between “whining” and “wincing out in pain” was not significant

enough to qualify as a misstatement intended to inflame the jury. It was clear from

the testimony that the witness heard something when Morton and T.B. were in the

bathroom. Although the witness described it as “whining” instead of “wincing out

in pain,” we find no prejudice to Morton as a result of the assistant prosecutor’s
comment when viewed in light of the entirety of the state’s closing argument.

Defense counsel was not ineffective for not objecting.

Misstatement of Law

              Morton also complains that the assistant prosecuting attorney

misstated the law and the trial court’s instructions, without objection from defense

counsel.   First, the assistant prosecuting attorney stated, in reference to the

indictment, the following: “We are not here by accident. We are not here because

nothing happened * * * so the indictment is more than just notice to Jeremiah

Morton what he is being charged with.         This is also our contract with the

community that we can prove each and every element of each charge contained in

this indictment.” This argument pushes the envelope of propriety.

              The first part of the assistant prosecuting’s argument ─ “[w]e are not

here by accident.    We are not here because nothing happened * * * so the

indictment is more than just notice to Jeremiah Morton what he is being charged

with” ─ was not proper. However, it was cured by the trial court’s instruction to

the jury. Specifically, the instruction informed the jury that the indictment was

nothing more than the instrument by which Morton was given notice of the

charges against him and it carried no greater weight of guilt. And other comments

by the assistant prosecuting attorney throughout the trial affirmed that it was the

state’s burden to prove every element of every crime beyond a reasonable doubt.

              Likewise, the second part of the assistant prosecuting’s statement ─

“our contract with the community that we can prove each and every element of
each charge contained in this indictment” ─ was not proper. The indictment did

set forth the charges the state brought against Morton, and the state was charged

with proving every element of the crimes charged, but the portion of the statement,

“that we can prove,” was pushing the envelope and we caution the state against

such statements. But when we view the entirety of the trial, we are not able to find

that Morton was deprived of a fair trial or that his counsel was ineffective.

               The other alleged misstatement Morton contends went unobjected

to occurred when the assistant prosecuting attorney told the jury that trial court

was allowing an instruction on the lesser-included offense of sexual battery

“because the evidence shows it.” This statement is a close call. But the trial court’s

instruction, which juries are presumed to follow, correctly stated that “if the

evidence warrants it,” the jury could find Morton guilty of the lesser-included

offense of sexual battery.    Thus, we find the assistant prosecuting attorney’s

comments harmless.

Cross-examination of Witnesses

               Morton next contends that his trial counsel was ineffective because

he failed to properly cross-examine some of the state’s witnesses. Specifically,

Morton complains that his trial counsel failed to cross-examine T.B. and her

friends about their disabilities and memory-recollection issues.

               Generally, “[t]he extent and scope of cross-examination clearly fall

within the ambit of trial strategy, and debatable trial tactics do not establish

ineffective assistance of counsel.” State v. Leonard, 

104 Ohio St. 3d 54

, 2004-
Ohio-6235, 

818 N.E.2d 229

, ¶ 146. Moreover, “‘[a]n appellate court reviewing an

ineffective assistance of counsel claim must not scrutinize trial counsel’s strategic

decision to engage, or not engage, in a particular line of questioning on cross-

examination.’” State v. Dorsey, 10th Dist. Franklin No. 04AP-737, 2005-Ohio-

2334, ¶ 22, quoting In re Brooks, 10th Dist. Franklin No. 04AP164, 2004-Ohio-

3887, ¶ 40; see also State v. Allah, 4th Dist. Gallia No. 14CA12, 2015-Ohio-5060, ¶

23.

               After our review, we do not believe that the record supports the

argument that the cross-examination of T.B. and her friends fell outside the realm

of trial strategy. The record demonstrates that counsel’s strategy was to portray

T.B. and her friends as “high functioning” despite their disabilities. By doing so,

counsel apparently sought to minimize the state’s attempt to portray T.B. and her

friends as vulnerable to Morton’s predatory behavior, thus, garnering more

sympathy for them. In light of the sensitive nature of this case, which involved a

developmentally disabled victim of sexual assault, counsel’s decision not to cross-

examine T.B. and her friends as to their disabilities does not constitute ineffective

assistance of trial counsel.

               The next area Morton claims his counsel was ineffective in was his

failure to properly cross-examine inconsistencies in witness statements. According

to Morton, “Stories changed significantly from the police report and body camera

footage to the actual testimony.”
              Two of the inconsistencies Morton complains about relate to

statements the witnesses gave to the police versus their testimony at trial. The

police reports are not part of the record, however, and thus we are unable to review

those contentions.    But we do note that they do not appear to be “glaring

inconsistencies,” such as counsel’s decision not to cross-examine on them would be

deficient or would have produced a different result.            The other alleged

inconsistency ─ whether T.B. arrived at the house on her bicycle or if her mother

drove her ─ was likewise not game-changing. Again, defense counsel defended

this case with the strategy that T.B. and her friends were “highly functioning,”

despite their disabilities; it was sound strategy not to cross-examine the witnesses

on these alleged inconsistencies.

              The final instance of alleged ineffectiveness of his counsel Morton

cites is counsel’s failure to introduce exculpatory and mitigating evidence.

Specifically, Morton challenges counsel’s decision to not admit the police body-

camera footage despite referring to it on cross-examination of T.B. and during

closing argument. The record reflects that counsel questioned T.B. on cross-

examination about how her trial testimony differed from what she initially told the

police during her second encounter with them that day. Counsel got her to admit

the most relevant inconsistency: that she told the police on the scene that she did

not believe Morton had raped her.
               Thus, in light of the above, we do not find that any of Morton’s

contentions of instances of his counsel performing ineffectively to be with merit.

The first assignment of error is overruled.

Cumulative Error

               In his second assignment of error, Morton contends that the

cumulative errors that occurred deprived him of a fair trial. We disagree.

               Under the doctrine of cumulative error, a conviction will be reversed

when the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of the errors does not

individually constitute cause for reversal. State v. Obermiller, 8th Dist. Cuyahoga

No. 101456, 2019-Ohio-1234, ¶ 52, citing State v. Hunter, 

131 Ohio St. 3d 67

, 2011-

Ohio-6524, 

960 N.E.2d 955

, ¶ 132. However, the doctrine of cumulative error is

inapplicable when the alleged errors are found to be harmless or nonexistent.

Id., citing id. Because

we have determined that none of the individual claims of

error are well taken, the claim of cumulative error likewise fails.

               The second assignment of error is overruled.

Conclusion

               It is a well-settled rule that a defendant is entitled to a fair, but not

perfect, trial. See United States v. Hasting, 

461 U.S. 499

, 508-509, 

103 S. Ct. 1974

,

76 L. Ed. 2d 96

(1983); State v. Lott, 

51 Ohio St. 3d 160

, 166, 

555 N.E.2d 293

(1990).
We are satisfied, upon a thorough review of the record, that Morton had a fair trial

and competent representation.

               Our review of the record demonstrates that counsel zealously

advocated on Morton’s behalf. He presented a reasonable defense: that the victim

and her friends were “high functioning” and acquiesced to him hanging around

with them for the day, and by implication, that the encounter between him and

T.B. was consensual.

               Counsel moved for a mistrial based on an allegation of juror

misconduct, and he also moved for a Crim.R. 29 judgment of acquittal. He lodged

numerous objections throughout the trial, many of which were successful. When

we review the trial as a whole, we do not find that Morton’s counsel’s performance

fell below an objective standard of reasonable representation, and that there was a

reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.          The defendant’s

convictions having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



LARRY A. JONES, SR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
LISA FORBES, J., CONCUR

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