State v. Yancy

[Cite as State v. Yancy, 2026-Ohio-1549.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 114608
                 v.                               :

LATOYA J. YANCY,                                  :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: April 28, 2026


                           Cuyahoga County Court of Common Pleas
                                 Case No. CR-24-691800-A
                                 Application for Reopening
                                     Motion No. 592371


                                            Appearances:

                 Latoya J. Yancy, pro se.


EILEEN T. GALLAGHER, J.:

                Appellant Latoya J. Yancy (“Yancy”) has moved under App.R. 26(B) to

reopen her direct appeal, State v. Yancy, 2025-Ohio-5135 (8th Dist.), that affirmed

her convictions and sentences for, inter alia, murder, felonious assault, aggravated

robbery, and grand theft of a motor vehicle, along with accompanying firearm

specifications.
            Yancy argues that her appellate counsel was ineffective and should have

(1) conducted a more thorough review of the record and not treated assertions by

the State as fact; (2) argued that the State engaged in prosecutorial misconduct; and

(3) argued that her trial counsel was ineffective by not filing a motion to suppress,

not presenting mitigating evidence, and not objecting to prosecutorial misconduct.

Yancy argues that she suffered prejudice because of her appellate counsel’s deficient

performance and that, but for these errors, there was a reasonable probability that

the outcome of her appeal would have been different.

            For the following reasons, we decline to reopen Yancy’s appeal.

                              I. Law and Analysis

                            A. Standard of Review

            Under App.R. 26(B), a defendant in a criminal case may apply to reopen

his or her appeal from the judgment of conviction and sentence based on a claim of

ineffective assistance of appellate counsel.   To establish a claim of ineffective

assistance of appellate counsel, the applicant must demonstrate that counsel’s

performance was deficient and that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668 (1984); State v. Bradley, 42 Ohio

St.3d 136 (1989); and State v. Reed, 74 Ohio St.3d 534 (1996). Prejudice means that,

but for the deficient performance, there is a reasonable probability that the results

of the proceeding would have been different.

                     B. Proposed Assignments of Error

                            1. Review of the Record
             In her first proposed assignment of error, Yancy contends that her

appellate counsel was ineffective when he did not conduct a “most thorough” review

of the record and did not dispute certain assertions by the State in the appellate brief.

Yancy does not point to anything in the record demonstrating that her appellate

counsel did not thoroughly review her case. Further, Yancy does not provide the

precise statements made by the State that appellate counsel did not dispute — she

merely cites appellate counsel’s references to “the alleged theft.”

             Yancy also argues that her appellate counsel should have fully

explained why she was entitled to claim self-defense and how her trial counsel was

ineffective in failing to secure this defense. However, arguments regarding self-

defense were previously raised and found to be without error in the opinion

rendered by this court in Yancy, 2025-Ohio-5135, ¶ 54-60 (8th Dist.).

             The doctrine of res judicata prevents further review of this issue because

the issues have already been addressed by this court on direct appeal and found to

be without merit. State v. Munoz, 2024-Ohio-242, ¶ 7 (8th Dist.), citing State v.

Perry, 10 Ohio St.2d 175 (1967). Claims of ineffective assistance of appellate counsel

in an application for reopening may be barred from further review by the doctrine

of res judicata unless circumstances render the application of the doctrine unjust.

State v. Murnahan, 63 Ohio St.3d 60 (1992); State v. Logan, 2008-Ohio-1934 (8th

Dist.); State v. Tate, 2004-Ohio-973 (8th Dist.). We find that circumstances do not

render the application of the doctrine of res judicata unjust.

              2. Trial Counsel’s Failure to Object to Testimony
             In her second proposed assignment of error, Yancy contends that her

trial counsel was ineffective by failing to object to statements made by witness J.R.

during her testimony and failing to object to the State’s presentation of only part of

J.R.’s statement to police.

             J.R. testified that she had spoken to police six separate times. The State

did not present any part of J.R.’s statements to police during the trial. Rather,

defense counsel used a video of J.R.’s first interview with police, presented outside

of the presence of the jury, in order to refresh J.R.’s recollection and used transcripts

from J.R.’s other interviews in order to impeach her on cross-examination. Because

the State did not present any of J.R.’s statements to police, there was nothing to

which defense counsel could have objected. And appellate counsel could not have

been ineffective for failing to raise this argument.

              With regard to Yancy’s assertion that her trial counsel should have

objected to false statements made by J.R., the statements that Yancy cites as

“perjured testimony” actually occurred during cross-examination of J.R. by defense

counsel. While defense counsel did not object to any of J.R.’s testimony, there were

several instances where he attempted to impeach her during cross-examination

utilizing her prior statements to police. Nothing in the record before this court

demonstrates that any witness lied under oath to the jury. An appellate court must

give deference to the jury’s findings because they are in the best position to observe

the witnesses and their demeanor, gestures, and voice inflections and are entitled to

believe or disbelieve any witness. State v. Antill, 176 Ohio St. 61, 66 (1964). The
credibility of witnesses is primarily a jury issue. State v. Ballew, 76 Ohio St.3d 244,

249 (1996).

              Here, the jury found the prosecution’s witnesses credible and

convicted Yancy. On direct appeal, this court reviewed the sufficiency and manifest

weight of the evidence and affirmed the jury’s verdict. Yancy, 2025-Ohio-5135,

¶ 46 and 53 (8th Dist.).

              Under these circumstances, Yancy has not demonstrated a genuine

issue as to whether there is a colorable claim that her appellate counsel was

objectively unreasonable for failing to argue on appeal that her trial counsel was

ineffective in failing to object to the prosecutor’s presentation of testimony to the

jury.

                3. Trial Counsel’s Failure to File a Motion to
                     Suppress or to Object to Evidence

              In her third proposed assignment of error, Yancy argues that her trial

counsel was ineffective by failing to file a motion to suppress the statements made

during her custodial interrogation. Yancy’s application does not provide any basis

for the suppression of statements made during her interview with police. Further,

Yancy does not provide any viable argument as to why such statements were

inadmissible at trial and should have been objected to by trial counsel.

              Accordingly, Yancy has not demonstrated a genuine issue as to

whether there is a colorable claim that her appellate counsel was objectively
unreasonable for failing to argue that her trial counsel was ineffective by failing to

move to suppress or object to the admission of Yancy’s statements to police.

        4. Trial Counsel’s Failure to Present Mitigating Evidence

              In her fourth proposed assignment of error, Yancy argues that her trial

counsel was ineffective by failing to present mitigating evidence of her mental-

health status and financial status. But there is nothing in the record regarding these

issues, and appellate review is strictly limited to the record. The Warder, Bushnell

& Glessner Co. v. Jacobs, 58 Ohio St. 77 (1898). Thus, “a reviewing court cannot

add matter to the record that was not part of the trial court’s proceedings and then

decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d

402 (1978), paragraph one of the syllabus. “Nor can the effectiveness of appellate

counsel be judged by adding new matter to the record and then arguing that counsel

should have raised these new issues revealed by the newly added material.” State v.

Moore, 93 Ohio St.3d 649, 650 (2001).

              Yancy has not demonstrated a genuine issue as to whether there is a

colorable claim that her appellate counsel was objectively unreasonable for failing

to present mitigating evidence.

                         5. Prosecutorial Misconduct

             In her final proposed assignment of error, Yancy argues that she was

prejudiced by the prosecutor’s misconduct in presenting perjured testimony and

making certain comments during closing arguments. She further asserts that her
trial counsel was ineffective for failing to object to the claimed prosecutorial

misconduct.

               As noted above, there is no evidence in the record that any witness lied

under oath during Yancy’s trial.

               An allegation of prosecutorial misconduct in closing argument must

be reviewed to determine whether any remarks were improper and, if so, whether

they prejudicially affected Yancy’s substantial rights. A conviction can only be

reversed on the grounds of prosecutorial misconduct if the effect of the misconduct

permeated the entire trial and if Yancy has demonstrated that but for the

prosecutor’s improper statements, she would have prevailed at trial. Broadview

Hts. v. Thomas, 2023-Ohio-4645 (8th Dist.).          The key to a determination of

prosecutorial misconduct is the fairness of the trial not the culpability of the

prosecutor. State v. Williams, 2023-Ohio-1748 (8th Dist.).

               A review of the trial transcript fails to demonstrate that Yancy would

have been found not guilty on all counts but for the claimed errors of prosecutorial

misconduct. It is clear beyond a reasonable doubt that the jury would have found

Yancy guilty of all counts regardless of any alleged misconduct by the prosecutor.

               Thus, we find that Yancy was not prejudiced by any of the remarks

made by the prosecutor during closing arguments. State v. Hanna, 2002-Ohio-

2221; State v. Stevens, 2023-Ohio-4683 (6th Dist.); State v. Erker, 2019-Ohio-3185

(8th Dist.).
              Moreover, counsel’s tactical decisions or trial strategy cannot form the

basis for a claim of ineffective assistance of counsel. State v. Foster, 2010-Ohio-

3186, ¶ 23 (8th Dist.), citing State v. Clayton, 62 Ohio St.2d 45 (1980). And the

failure to object may be viewed as a tactical decision. State v. Pawlak, 2014-Ohio-

2175, ¶ 82 (8th Dist.). Because “‘objections to each potentially objectionable event

could actually act to [a] party’s detriment . . . any single failure to object usually

cannot be said to have been error unless the evidence sought is so prejudicial . . . that

failure to object essentially defaults the case to the state.’” State v. Johnson, 2006-

Ohio-6404, ¶ 140, quoting Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir. 2006).

              Yancy has not demonstrated a genuine issue as to whether there is a

colorable claim that her appellate counsel was objectively unreasonable for failing

to argue prosecutorial misconduct or that her trial counsel was ineffective in failing

to object to the claimed prosecutorial misconduct.

               Appellate counsel was not deficient for failing to raise Yancy’s

proposed assignments of error. Accordingly, the court denies the application for

reopening.




EILEEN T. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and
TIMOTHY W. CLARY, J., CONCUR