State v. Greene , 2019 Ohio 4010 ( 2019 )

[Cite as State v. Greene, 2019-Ohio-4010.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 17AP-238
(C.P.C. No. 15CR-1206)
v. :
(REGULAR CALENDAR)
Charles J. Greene, :
Defendant-Appellant. :
D E C I S I O N
Rendered on September 30, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Kimberly
Bond, for appellee. Argued: Kimberly Bond.
On brief: Carpenter Lipps and Leland LLP, Kort
Gatterdam, and David F. Hanson, for appellant. Argued:
David F. Hanson.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Charles J. Greene, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following a jury trial in which he was found guilty of murder, aggravated robbery,
and kidnapping.
{¶ 2} On March 12, 2015, appellant was indicted on one count of aggravated
murder, in violation of R.C. 2903.01, one count of murder, in violation of R.C. 2903.02,
one count of aggravated robbery, in violation of R.C. 2911.01, and two counts of
kidnapping, in violation of R.C. 2905.01. The indictment arose out of the death of Alyce
Seff, age 81, in July 2008.
No. 17AP-238 2
{¶ 3} The matter came for trial before a jury beginning January 18, 2017. Charles
Lyder testified on behalf of plaintiff-appellee, State of Ohio. In 2008, Lyder, age 46,
resided on South Pearl Street. His landlady was Alyce Seff, who he began renting from in
March 2007. Seff owned several rental properties in the area. Lyder always paid his rent
to Seff in cash. Seff would then hand him "a paper receipt out of a cash receipt book."
(Tr. Vol. I at 84.) Seff regularly wore a "green army jacket," and she kept money in the
"right chest pocket" of the jacket. (Tr. Vol. I at 84.) According to Lyder, Seff kept a
"pretty thick wad of cash" in her pocket. (Tr. Vol. I at 85.) When repairs were necessary,
Seff "hired people that * * * needed money." (Tr. Vol. I at 86.)
{¶ 4} On June 23, 2008, Lyder and his two daughters departed Columbus to
spend two weeks in New Hampshire. Lyder returned to Columbus on July 9, 2008. Later
that evening, Lyder and one of his daughters went to the back of his residence, and Lyder
"smelled death." (Tr. Vol. I at 91.) Lyder thought he smelled a dead animal. His daughter
then said, "Hey, I found some money." (Tr. Vol. I at 91.) She found the money near "a
little wishing well" off the side of Seff's house. Lyder walked toward his daughter and
observed a wig and credit cards scattered on the ground. Lyder picked up one of the cards
and "saw the name of Alyce Seff." (Tr. Vol. I at 92.) He then walked to a nearby
neighbor's apartment building and told the neighbor's roommate "something was wrong."
(Tr. Vol. I at 93.)
{¶ 5} Lyder phoned Seff's cell phone "and it went to voicemail." (Tr. Vol. I at 94.)
He then called Seff's home phone but there was no response. Lyder and the neighbor
returned to the area of the wishing well. Lyder observed blood on the wig and also
noticed blood splatter marks on a nearby fence. He recognized the wig as "the same color
and length of my landlord's wig, Alyce Seff." (Tr. Vol. I at 96.) Lyder then noticed
cushions on top of the wishing well. He pulled up one of the cushions and "saw some
fingers." (Tr. Vol. I at 95.) Lyder and the neighbor then returned to the apartment and
dialed 911.
{¶ 6} Seff drove a dark blue Ford Escort, which Lyder described as a "late 90's
model." (Tr. Vol. I at 101.) The vehicle "was not well-kept, and in the inside it had a lot of
junk, * * * sometimes a rake, bags." (Tr. Vol. I at 100-01.) Lyder never observed anyone
else drive the vehicle. Seff usually parked the vehicle on High Street, but sometimes on
No. 17AP-238 3
Pearl Alley. After discovering Seff's body, Lyder did not observe Seff's vehicle in the area.
Lyder gave police a description of the vehicle.
{¶ 7} On July 9, 2008, at approximately 8:40 p.m., Columbus Police Officer
Stephen Mason received a dispatch regarding "a neighbor who * * * thought he had
discovered his landlady, the property owner, either deceased or ill." (Tr. Vol. I at 60.)
Officer Mason arrived at the scene and spoke with Lyder. The officer "could immediately
smell an odor of * * * decay." (Tr. Vol. I at 61.)
{¶ 8} Officer Mason walked to the back of the residence and "initially saw what
looked like the contents of a purse that had been dumped out, just random cards." (Tr.
Vol. I at 62.) The officer then observed a decorative wishing well. He walked over to the
well and "noted there [were] cushions sort of stacked around, and on top of it, * * * the
cushions that have kind of a plastic vinyl covering on them." (Tr. Vol. I at 63.) Several
medics had also arrived at the scene.
{¶ 9} When Officer Mason initially moved one of the cushions, he observed "a
human foot." (Tr. Vol. I at 64.) The officer then shined his flashlight and observed "the
victim." (Tr. Vol. I at 64.) The body, which was in an "upside down position," was
"discolored." (Tr. Vol. I at 65.) It was clear to the officer and medics that the individual
was deceased, and the medics pronounced Seff dead at that time.
{¶ 10} The victim was identified as Alyce Seff. Officer Mason was familiar with Seff
from patrolling that neighborhood. Officer Mason described Seff as "a well-known
property owner in the area. She had a number of properties all around her in the village."
(Tr. Vol. I at 68.) According to the officer, Seff "would walk to each tenant and specifically
collect rent, sort of * * * an old school way of doing business." (Tr. Vol. I at 69.) Seff
drove a blue Ford Escort and, although it was well know that she "was somewhat
wealthy," it seemed "odd to everyone that she drove that sort of a down-trodden vehicle
that was always kind of in disrepair." (Tr. Vol. I at 69.) The officer never observed anyone
but Seff driving the vehicle.
{¶ 11} On July 9, 2008, Columbus Police Detective Richard Bair, a member of the
department's crime scene search unit, photographed and collected evidence in the area of
the 800 block of South High Street. On July 16, 2008, Detective Bair collected items from
Seff's vehicle. DNA swabs were taken and submitted to the police property room. During
No. 17AP-238 4
his testimony, Detective Bair identified photographs taken of the crime scene; he also
identified the items collected at the scene, including a roll of duct tape.
{¶ 12} In July 2008, Marc Green worked as a crime scene search unit detective for
the Columbus Police Department. On July 10, 2008, Green collected evidence and
photographed Seff's body at the Franklin County morgue. Green described Seff's body as
"very badly decomposed, very bad stage of decomposition." (Tr. Vol. I at 161.) At trial,
Green identified the photographs he took of Seff, as well as items collected. Seff had duct
tape "bound around both wrists." (Tr. Vol. I at 165.) Green identified items of clothing
worn by Seff. A cell phone case was found on Seff's body, and a shirt had been wrapped
and tied around her head and neck.
{¶ 13} Edward Babcock is an employee of Murray's Tool Rental, a small equipment
rental and repair business. Babcock was acquainted with Seff, who would regularly come
into the tool rental store; Babcock considered her to be "a friend, not a customer." (Tr.
Vol. II at 183.) Seff "always wore the same outfit * * * it was always a dark heavy canvass,
long skirt, black * * * boots, a green -- everybody calls it an army shirt, but it actually said
U.S. Air Force on it." (Tr. Vol. II at 191.) Seff also wore a wig.
{¶ 14} The tool rental store had a video surveillance system. On Saturday, July 5,
2008, Seff entered the store and her visit was captured on video. Seff brought a hedge
trimmer to the store for sharpening. At trial, the state played a portion of the surveillance
video taken at the store on July 5, 2008. Babcock identified Seff on the video; she entered
the store shortly before noon, wearing the "[s]ame outfit she always wore." (Tr. Vol. II at
194.) Seff left the store at 12:04 p.m. Babcock never saw her after that day.
{¶ 15} Babcock testified that Seff always paid in cash. She kept the money "in her
pocket, a big old wad. She kept a lot of money on her." (Tr. Vol. II at 201.) Seff is
depicted on the video taking money out of her shirt pocket. Babcock subsequently
learned Seff had died and spoke with a police officer he knew; Babcock told the officer she
had recently been to the store. The officer was interested in obtaining "a picture of her
car." (Tr. Vol. II at 189.)
{¶ 16} Barbara Carmen Fisher was a family friend of Seff's, and Fisher's mother
and Seff were best friends for approximately 40 years. Fisher was aware that Seff "was
quite wealthy." (Tr. Vol. II at 215.) Seff "carried wads of cash," and earned her money
No. 17AP-238 5
through real estate and as a landlord; she owned approximately 15 properties, as well as
her own home. (Tr. Vol. II at 216.) In July 2008, Seff was living at her residence in
German Village. Seff wore a wig, and "she often shopped at the army/navy store and she
wore * * * combat fatigues." (Tr. Vol. II at 231.)
{¶ 17} Seff had a cell phone as well as a home phone, and Fisher's mother usually
talked to Seff on a daily basis. Over the 2008 Fourth of July weekend, Fisher and her
mother made various calls to Seff's cell and home phones after not hearing from her. On
July 9, 2008, Fisher drove to one of Seff's residences and observed numerous police
vehicles.
{¶ 18} Fisher assisted police in obtaining Seff's bank records; it was discovered
that Seff's credit cards "had been used within a recent day or two." (Tr. Vol. II at 229.)
The bank president informed Fisher "these are from Walmart. They have cameras. Go
talk to the detective immediately, and handed me the report, which is what I did." (Tr.
Vol. II at 229.)
{¶ 19} Seff had a blue Ford Escort, which Fisher described as "very old," and
"stuffed full of things that she had either cleaned out of her property, or that she had
found at the thrift store, or tools and materials that she used for working on the
properties." (Tr. Vol. II at 229-30.) Fisher never observed anyone except Seff drive the
vehicle.
{¶ 20} Norma Jenkins, age 50, has been a Columbus resident most of her life.
Jenkins knows appellant, and testified his friends call him "Jerome." (Tr. Vol. II at 242.)
In July 2008, Jenkins resided with her mother and a friend, Jane Benvenutti. At that
time, appellant was living with a "lady named Valorie" on Fabron Avenue. Appellant's
residence was close to where Jenkins lived on Atcheson Street. In July 2008, Jenkins and
appellant were "fooling around." (Tr. Vol. II at 244.) Jenkins described herself as "just
one of" appellant's girlfriends at the time. (Tr. Vol. II at 245.)
{¶ 21} In July 2008, appellant "worked for a lot of people in the neighborhood,"
including Seff. (Tr. Vol. II at 246.) Appellant performed "[h]andy work," and his duties
for Seff included yard work and painting. (Tr. Vol. II at 246.) Seff would drive by and
pick up appellant. Appellant worked for Seff "two, three times a week." (Tr. Vol. II at
248.)
No. 17AP-238 6
{¶ 22} On July 5, 2008, Jenkins observed Seff pick appellant up on Fabron
Avenue. A few days later, Jenkins learned from the news that something had happened to
Seff. Jenkins was concerned because, approximately two weeks prior to that, appellant
"asked me to act like I was paying rent and push her down and rob her." (Tr. Vol. II at
252.) Jenkins told appellant "[n]o." (Tr. Vol. II at 253.)
{¶ 23} On July 5, 2008, appellant phoned Jenkins at her mother's residence.
Appellant had obtained Seff's phone, and he gave Jenkins "several different stories"
regarding why he had her phone. (Tr. Vol. II at 257.) At first, appellant stated the phone
"was given to him, and then Alyce gave it to him." (Tr. Vol. II at 259.) At one point,
appellant stated "he broke in the house after he found out she was dead and robbed her."
(Tr. Vol. II at 260.) Jenkins subsequently observed appellant with credit cards belonging
to Seff, including a "Lowe's card." (Tr. Vol. II at 260.) Appellant asked Jenkins to use the
Lowe's card but she refused.
{¶ 24} After Seff's death, police investigators questioned Jenkins and asked her if
she had used a Lowe's card for purchases. Jenkins told investigators she did not make
any purchases with the card. Jenkins told police that appellant "had asked me to act like I
was going to pay my rent and push her down and rob her, but I didn't." (Tr. Vol. II at
263.)
{¶ 25} On cross-examination, Jenkins acknowledged she had a prior theft
conviction, and she was using crack cocaine and marijuana in 2008. When asked if she
used cocaine powder or crack cocaine more often, Jenkins responded: "Cocaine with
Charles Greene." (Tr. Vol. II at 278.)
{¶ 26} On re-direct examination, Jenkins stated she was using crack cocaine with
appellant around July 5, 2008. After Seff's death was reported, Jenkins did not see
appellant "for a while." Jenkins stated appellant acted paranoid, as if "somebody was
trying to get him." (Tr. Vol. II at 313.)
{¶ 27} Daniel Davison, a forensic scientist with the Bureau of Criminal
Investigation, examined several pieces of duct tape as well as several rolls of duct tape
recovered as part of the investigation. Four rolls of duct tape were recovered from Seff's
vehicle, while another roll of duct tape, identified as state's exhibit No. J8, was recovered
in the backyard. Pieces of duct tape, identified as state's exhibit Nos. K5 and K6, were
No. 17AP-238 7
obtained from Seff's left wrist. Exhibit Nos. K5 and K6 "had the same physical
characteristics." Further, "[o]ne of the edges from K5 formed a physical break match with
the end of the roll of tape that was * * * Exhibit J8." (Tr. Vol. II at 352.) Davison
concluded the duct tape recovered from Seff's wrist came from the duct tape roll found in
the backyard.
{¶ 28} At trial, the state played the video deposition of Raman Tejwani, formerly
an employee of the Columbus Police Crime Lab. Tejwani has a Ph.D. in physiological
chemistry, and her duties with the crime lab included "analysis of biological fluid and
DNA for the evidence that was submitted to the crime lab forensic biology section." (Tr.
Vol. III at 375.) Tejwani was asked to review items from the investigation, including duct
tape, a plaid flannel shirt, and fingernail clippings.
{¶ 29} Tejwani testified that the duct tape and shirt were "not suitable for DNA
analysis." (Tr. Vol. III at 384.) Fingernail clipping samples were obtained from both of
Seff's hands, and Tejwani was able to conduct DNA analysis for the fingernail clippings,
identified as state's exhibit No. K11. Tejwani testified there were "five nail clippings, and
traces of red stains were seen on all the five tested. They all tested positive for blood."
(Tr. Vol. III at 385.) One of the clippings "matched the DNA types obtained from the
blood standard of Alyce Seff." (Tr. Vol. III at 386.)
{¶ 30} DNA samples were obtained from Seff's vehicle, including "the steering
wheel, the gear shifter, rearview mirror, nail on driver's door, nail on driver's side door
arm rest, and driver's side door handle." (Tr. Vol. III at 390.) Some of the DNA samples
from the vehicle were not suitable to make any conclusions. With respect to the sample
from the gearshift, state's exhibit No. L2, Tejwani concluded that appellant "cannot be
excluded as a contributor." (Tr. Vol. III at 397.) With respect to state's exhibit Nos. L1
and L6, swabs obtained from the steering wheel and a nail on the driver's side arm rest
"matched the DNA types obtained from oral swab standard of Charles Greene." (Tr. Vol.
III at 399.)
{¶ 31} Tejwani also examined a cell phone cover but there was an insufficient
amount of DNA to obtain information as to a contributor. DNA samples of blood
recovered from a fence near the scene matched the DNA types obtained from the blood
standard of Seff.
No. 17AP-238 8
{¶ 32} Brenda Greathouse, age 59, has lived in Columbus most of her life.
Greathouse has known appellant for approximately 25-30 years, and calls him "Jerome."
(Tr. Vol. III at 451.) In 2008, appellant was living with a woman named "Valorie." (Tr.
Vol. III at 452.) Appellant was "doing odd jobs for * * * different people" at the time. (Tr.
Vol. III at 454.)
{¶ 33} In 2008, a detective spoke with Greathouse about phone calls appellant
made to her on July 6, 2008. The calls began in the early morning hours on that date;
Greathouse did not recognize the phone number, but eventually realized appellant was
calling from that number. Appellant told Greathouse "he had found the phone." (Tr. Vol.
III at 458.) Appellant told her he found the phone "[e]ither at the store or going to the
store." (Tr. Vol. III at 458.)
{¶ 34} Later in the day on July 6, 2008, appellant arrived at Greathouse's
residence with several credit cards. Appellant gave her the cards; Greathouse informed
appellant she was "going to give them to my friend to use, and he just said to make sure he
got some stuff too." Her friend was "Norita Sams." (Tr. Vol. III at 461.) Greathouse
picked up Sams and gave her the cards; they then drove to "a gas station, to a CVS, a
Kroger's, Meijer's and Walmart." (Tr. Vol. III at 462.) The stores were located in the
"Morse Road, Cleveland Avenue area." (Tr. Vol. III at 462.) Greathouse and Sams bought
items for themselves as well as for appellant. After purchasing the items, Greathouse gave
the credit cards to appellant "[b]ecause he asked for them back." (Tr. Vol. III at 465.)
{¶ 35} Later, Greathouse learned from the news "that a lady had been murdered.
We had used the cards, me and a friend of mine, and the name just popped in my mind as
soon as I seen it on TV." (Tr. Vol. III at 460.) Appellant told Greathouse "he had got them
from, I guess, * * * the person they belonged to, to go purchase some materials. But I
knew that wasn't so." (Tr. Vol. III at 460.) Greathouse "knew they was probably stolen."
(Tr. Vol. III at 461.)
{¶ 36} Dr. Patrick Fardal, retired, was formerly chief forensic pathologist and
deputy coroner for Franklin County. Fardal reviewed the coroner's report, including
photographs of the victim, Seff; the photographs "showed levels of decomposition." (Tr.
Vol. III at 493.) The autopsy was performed on July 10, 2008. Dr. Fardal opined Seff had
No. 17AP-238 9
been dead for "four to five days prior" to the autopsy. (Tr. Vol. III at 504.) He further
stated, based on the signs of decomposition, Seff could have died on July 5, 2008.
{¶ 37} Dr. Fardal noted "ligature around her neck." (Tr. Vol. III at 505-06.) The
ligature "was knotted on the right side of her neck. It was tied around her neck." (Tr. Vol.
III at 506.) Dr. Fardal concluded the cause of death was "ligature strangulation." (Tr.
Vol. III at 509.)
{¶ 38} Dr. Fardal was questioned about the presence of blood on a nearby fence at
the crime scene. He stated the blood "came off either [Seff] or an object" that could have
been used to strike Seff. (Tr. Vol. III at 515.) While noting the difficulty in assessing the
location of a wound due to the state of decomposition of the body, Dr. Fardal theorized
Seff likely sustained an injury involving the face and head, and that blood from this
wound "was thrown in space against the fence." (Tr. Vol. III at 520.)
{¶ 39} Feather Johnson, age 39, has lived in Columbus 15 years. In 2008, Johnson
resided in a duplex on South High Street. Lyder lived in a nearby residence on Pearl
Street. Johnson also knew Seff, who owned the property next to her duplex. Seff would
hire individuals to work for her that were "probably not employed, people that definitely
appear to me that have some type of issues, drinking, drug issues, who knows what it may
be." (Tr. Vol. III at 550.)
{¶ 40} Approximately one week before July 5, 2008, Johnson observed Seff
speaking with an individual who was "planning to do work for her." (Tr. Vol. III at 550.)
At trial, Johnson identified appellant as the individual she observed at Seff's house.
{¶ 41} In July 2008, Lyder was on vacation with his daughters, and Johnson was
watching Lyder's dog. On July 9, 2008, Lyder returned home from his vacation. That
evening, Lyder and one of his daughter went over to Johnson's duplex; Lyder seemed
alarmed, and asked Johnson about the last time she saw Seff. Johnson indicated she had
seen Seff "less than a week prior to that date." (Tr. Vol. III at 556.)
{¶ 42} Lyder then asked Johnson to "walk back to the house with him." (Tr. Vol.
III at 556.) They walked to the back of the house and "found Alyce's -- one of her shoes,
her wig, and numerous credit cards laying on the ground." Lyder also "found * * * blood
splatter on the fence, and he asked [Johnson] to take his daughter back to [her] front
porch." (Tr. Vol. III at 557.) Lyder then dialed 911.
No. 17AP-238 10
{¶ 43} Several years later, police officers showed Johnson a photo array and asked
her if she recognized any of the individuals as "being at Alyce's house." (Tr. Vol. III at
558.) Johnson identified the individual depicted in photograph No. 4 as looking "like the
person at the house days before." (Tr. Vol. III at 559.) During her testimony, Johnson
identified a photograph of Seff's vehicle. Johnson testified that Seff would normally park
her vehicle "on High Street." (Tr. Vol. III at 561.) Johnson never observed anyone but
Seff drive her vehicle.
{¶ 44} Columbus Police Detective Robert Moledor analyzes "cellular call detail
records." (Tr. Vol. IV at 587.) Detective Moledor analyzed the records for Seff's cell
phone beginning July 5, 2008. At 1:28 p.m., a call was placed to Seff's phone by a number
belonging to appellant. At 2:46 p.m., a call from a number belonging to Jenkins was
placed to Seff's phone number. Between the times of 10:52 p.m. on July 5, 2008, and
12:01 a.m. on July 6, 2008, "the target phone placed 16 outbound calls to six different
numbers." (Tr. Vol. IV at 606.)
{¶ 45} As a result of the data collected, Detective Moledor concluded that Seff "was
no longer in possession of her AT&T cellular phone" after 2:45 p.m. on July 5, 2008. The
detective "based that conclusion on the calls that were being made to the phone as well as
calls that were being made from the phone." (Tr. Vol. IV at 609.) Further, "[t]he majority
of the tower usage by * * *, the target phone, between 2:45 p.m. on July 5th, 2008 and
10:18 p.m. July 8th, 2008 is consistent with the vicinity of Charles J. Greene's listed
address [on] Fabron Avenue." (Tr. Vol. IV at 609-10.) The detective further testified the
location at which Seff's vehicle was recovered was "consistent with the vicinity of the
majority of tower usage between 2:45 p.m. on July 5th and 10:18 [p.m.] on July 8th; and,
finally, at the location of Norma Jenkins' residence [on] Atcheson Street, Columbus, Ohio,
it is consistent with the vicinity of the majority tower usage between 2:45 p.m. July 5th,
2008 and 10:18 [p.m.] July 8[th], 2008." (Tr. Vol. IV at 610.)
{¶ 46} Appellant testified on his own behalf. Appellant denied killing Seff, and
denied asking anyone to rob or kill Seff. Appellant testified he learned of Seff's death
through "Brenda Greathouse, who bought the credit cards." (Tr. Vol. IV at 678.) He
denied breaking into Seff's home, and denied ever meeting Johnson. He also denied ever
driving Seff's vehicle.
No. 17AP-238 11
{¶ 47} In 2008, appellant worked as a "handyman." (Tr. Vol. IV at 679.) Appellant
had worked for Seff "[o]ff and on about a year." (Tr. Vol. IV at 680.) When Seff needed
work done, she would call him on "my girlfriend's phone." (Tr. Vol. IV at 681.) Appellant
could not recall the last time he performed work for Seff.
{¶ 48} Appellant acknowledged coming into possession of Seff's cell phone and
credit cards. Appellant provided the following account of how he obtained those items:
Well, I was working for Ms. Seff. I don't know exactly what
day it was, but I was cutting down some bushes of hers, and I
noticed a guy working on her roof. I don't go mingling with
the guy or nothing, you know. They do their work; I do my
work.
This guy comes to me, asked me what side of town I was from.
I said, I'm from Mount Vernon and 20th area.
He said, Well, I'm from the south end.
You know, I never think of nothing of that. He say that's
where he going to get his medicine from, on Mount Vernon
and 20th.
Me, I'm going to the store one day on Mount Vernon and
20th, and I see the guy, you know what I'm saying? He don't
know my name; I don't know his. He's just saying, Hey, come
here.
I noticed him from Ms. Seff's, you know what I'm saying?
Working for Ms. Seff. He said, Do you know a way I can get
rid of some credit cards?
I said, Yeah, I know somebody who buys credit cards.
(Tr. Vol. IV at 682-83.)
{¶ 49} When questioned as to why he interacted with this individual in obtaining
Seff's items, appellant responded: "The reason I did it, because I seen the guy at Ms. Seff's.
I know he worked for Ms. Seff. So I thought he might be cool to do that, help him out."
(Tr. Vol. IV at 686.) When asked if he believed the items had been stolen, appellant
responded: "I knew they were stolen." (Tr. Vol. IV at 686.) Appellant testified that he
asked the individual "to let me use his phone so I can call my [contact]. I know the person
that was going to buy them." (Tr. Vol. IV at 688.) Appellant testified he phoned
No. 17AP-238 12
Greathouse and that he walked with the man to the residence of Greathouse; appellant
handed the phone back and took the credit cards into the house.
{¶ 50} When asked what he was to receive in return, appellant testified: "He going
to pay me for getting the cards sold; and she going to pay me for getting her the deal." (Tr.
Vol. IV at 690.) Appellant eventually kept the phone, explaining: "After I come out of the
house and gave the guy his money, he gave me money, and then I asked to use his phone
so I can call Ms. Norma Jean. She wanted me to do some work too." (Tr. Vol. IV at 690.)
Appellant further stated that he "ended up going in the house to tell Brenda she owes me
now because she got a deal and I got the cell phone. When I come back out of the house,
the guy was gone. So I kept the phone." (Tr. Vol. IV at 691.)
{¶ 51} According to appellant, the man gave him two credit cards. Appellant
denied looking at the cards at the time, stating he first learned the credit cards belonged
to Seff "[a]fter the detectives then talked to Brenda about using the credit cards. She told
them she got the credit cards from me." (Tr. Vol. IV at 692.)
{¶ 52} On cross-examination, appellant acknowledged having signed a receipt,
dated July 1, 2008, indicating Seff paid him $50. Appellant denied ever seeing Seff "with
a wad of money." (Tr. Vol. IV at 699.) Appellant told detectives he received "[t]wenty
dollars and a piece of crack" for the credit cards. (Tr. Vol. IV at 707.) Appellant denied
that Greathouse gave the credit cards back to him. When asked about a call placed from
his phone at 1:28 p.m. on July 5, 2008, appellant responded: "I don't know about that
call. I guess I was probably calling Alyce for work or something. I don't know." (Tr. Vol.
IV at 721.) Appellant did not recall whether he told detectives in 2012 about sitting in the
driver's seat of Seff's vehicle. Appellant told detectives in 2012 and 2015 that he did not
have Seff's cell phone. When asked whether he lied about using the phone, appellant
stated: "I guess it was. Yes it was." (Tr. Vol. IV at 729.)
{¶ 53} The state called Columbus Police Detective Anne Pennington as a rebuttal
witness. Detective Pennington participated in an interview of appellant in April 2012.
Appellant told Detective Pennington he obtained the credit cards from a white male who
was shorter than him; appellant indicated the man was "5'8" or so." (Tr. Vol. V at 803.)
Detective Pennington identified the individual during trial and measured him; that
individual's height was "5'11 ½." (Tr. Vol. V at 804.)
No. 17AP-238 13
{¶ 54} Following deliberations, the jury returned verdicts finding appellant guilty
of murder, aggravated robbery, and two counts of kidnapping. The jury found appellant
not guilty of aggravated murder. For purposes of sentencing, the trial court merged the
kidnapping counts. By entry filed February 27, 2017, the trial court sentenced appellant
to 15 years to life as to the murder count, to be served concurrently to a 10-year sentence
for aggravated robbery, and a 10-year sentence for kidnapping.
{¶ 55} On appeal, appellant sets forth the following six assignments of error for
this court's review:
[I.] THE TRIAL COURT ABUSED ITS DISCRETION AND
DENIED APPELLANT A FAIR TRIAL AND DUE PROCESS
OF LAW CONTRARY TO THE OHIO AND UNITED STATES
CONSTITUTIONS BY ADMITTING REPETITIVE,
GRUESOME PHOTOGRAPHS OF THE DECEASED.
[II.] THE ADMISSION OF OTHER ACTS TESTIMONY
VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND
TO A FAIR TRIAL AS GUARANTEED BY THE UNITED
STATES AND OHIO CONSTITUTIONS.
[III.] APPELLANT WAS DENIED HIS RIGHTS TO A FAIR
TRIAL, TO COUNSEL, TO PRESENT A DEFENSE, AND TO
DUE PROCESS CONTRARY TO THE OHIO AND UNITED
STATES CONSTITUTIONS WHEN THE TRIAL COURT
ORDERED APPELLANT TO WEAR RESTRAINTS
WITHOUT ADEQUATE JUSTIFICATION.
[IV.] APPELLANT WAS DEPRIVED OF HIS RIGHT TO A
FAIR TRIAL AND DUE PROCESS OF LAW BY THE
INTRODUCTION OF INADMISSIBLE COMMUNITY AND
VICTIM IMPACT EVIDENCE.
[V.] APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF
APPELLANT'S RIGHTS UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF
THE OHIO CONSTITUTION.
[VI.] THE TRIAL COURT VIOLATED APPELLANT'S
RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT
ENTERED A JUDGMENT OF CONVICTION AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
No. 17AP-238 14
OF APPELLANT'S RIGHTS UNDER THE UNITED STATES
AND OHIO CONSTITUTIONS.
{¶ 56} Under the first assignment of error, appellant asserts the trial court erred by
admitting repetitive, gruesome photographs of Seff, thereby denying him a fair trial and
due process of law. Appellant notes Detective Bair authenticated photographs he took of
the crime scene, including a group of 15 pictures shown to the jury depicting Seff either
inside the well or laying on the grass after being removed from the well. Further,
appellant notes, Detective Green authenticated pictures he took of Seff at the morgue, and
an additional 40 pictures were shown to the jury and admitted into evidence. Appellant
maintains only a few photographs were necessary, and that the number of photographs
admitted before the jury prejudiced him.
{¶ 57} In response, the state argues the prosecutor worked with defense counsel to
limit the number of photographs admitted at trial, and several photographs were
withdrawn at defense counsel's request. The state further argues defense counsel did not
object to the admission of photographs of Seff's body at the crime scene or the morgue
and, therefore, plain error is the appropriate review on appeal.
{¶ 58} In general, "[d]ecisions on the admissibility of photographs are 'left to the
sound discretion of the trial court.' " State v. Gonzalez, 7th Dist. No. 06 MA 58, 2008-
Ohio-2749, ¶ 34, quoting State v. Slagle, 65 Ohio St.3d 597, 601 (1992). In this respect,
"[t]he test for exclusion of evidence under Evid.R. 403 is that relevant evidence, including
photographic evidence, should only be excluded when, 'its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury.' " Id. See also State v. Jones, 7th Dist. No. 12 MA 181, 2013-Ohio-5915, ¶ 77 ("in
a noncapital case * * * the admission of potentially prejudicial photographs is determined
under a discretionary balancing test that requires exclusion only if the probative value of
the photographs is substantially outweighed by the danger of unfair prejudice").
{¶ 59} A review of the record indicates defense counsel raised "no objection" to
state's exhibit Nos. B1 through B63, including the 15 photographs of Seff, nor did defense
counsel object to state's exhibit Nos. C1 through C47, the morgue photographs. (Tr. Vol.
IV at 646.) However, before the photographs were submitted to the jury, defense counsel
requested the court to limit "the more gruesome photographs" with respect to state's
No. 17AP-238 15
exhibit Nos. C1 through C47 (an issue initially the subject of a pre-trial motion in limine).
(Tr. Vol. V at 905.) In response, the prosecutor stated, based on defense counsel's
"request with our agreement and at the court's discretion, we will withdraw State's
Exhibits C32, C43, C44, C45, C46, and C47." (Tr. Vol. V at 907.) The prosecutor noted
that the withdrawn exhibits "are photographs taken at the morgue by the crime scene
unit." (Tr. Vol. V at 907.) Finally, we note the coroner's autopsy photographs (state's
exhibit Nos. E1 through E15) were not admitted into evidence.
{¶ 60} Based on the record presented, appellant has arguably waived all but plain
error with respect to the admission of the photographs. In accordance with Evid.R.
103(A), "a party's failure to object to the admission of evidence at trial constitutes a waiver
of all but plain error on appeal." State v. Mills, 5th Dist. No. 2007 AP 07 0039, 2009-
Ohio-1849, ¶ 131. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court." Under Ohio law, "[p]lain error must be obvious as well as outcome-
determinative." State v. Frazier, 10th Dist. No. 05AP-1323, 2007-Ohio-11, ¶ 37. Thus,
"plain error occurs only when, but for the error, the outcome of the trial clearly would
have been different." Id.{¶ 61} As observed by the state, appellant does not specifically identify which
photographs he contends should have been excluded as unfairly prejudicial. The
Supreme Court of Ohio "has held that ' "the mere fact that [a photograph] is gruesome or
horrendous is not sufficient to render it inadmissible if the trial court, in the exercise of its
discretion, feels that it would prove useful to the jury." ' " State v. Williams, 2d Dist. No.
24548, 2012-Ohio-4179, ¶ 46, quoting State v. Frazier, 61 Ohio St.3d 247, 252 (1991),
quoting State v. Woodards, 6 Ohio St.2d 14, 25 (1966). In this respect, "[s]uch
photographs may help illustrate witness testimony and forensic evidence, or show the
nature and circumstances of the crime." Williams. See also State v. Biros, 78 Ohio St.3d
426, 445 (1997) (although gruesome, photographs of the victim's body were probative "of
contested issues of intent, purpose, motive, and the cause, manner and circumstances of
the victim's death").
{¶ 62} In the present case, the photographs were relevant to the issues of intent,
and to supplement the testimony of Dr. Fardal, who utilized the photographs to reach a
No. 17AP-238 16
determination as to cause and time of death. As noted under the facts, Seff's body was
first discovered (and Seff pronounced dead) on July 9, 2008. Dr. Fardal testified,
however, that in his estimation, Seff "had been dead four to five days prior." Dr. Fardal
based his estimate on factors including "discoloration of her face," and "skin slippage on
her hand." (Tr. Vol. III at 504.)
{¶ 63} As to the issue of cause of death, Dr. Fardal observed "ligature around her
neck." (Tr. Vol. III at 505-06.) Specifically, he stated, "[f]rom the photographs among
those views, it was knotted on the right side of her neck. It was tied around her neck."
(Tr. Vol. III at 506.) The state argues, and we agree, that the photographs had particular
probative value to the issue of cause of death given the state of decomposition. On this
point, Dr. Fardal noted, due to decomposition of Seff's body, he was unable to observe
petechial hemorrhages (common in instances of strangulation), "so all we have is this
cloth about her neck that's knotted on the right side, and it looks as a ligature
strangulation type of death." (Tr. at Vol. III at 506-07.)
{¶ 64} As indicated above, prior to jury deliberations, defense counsel expressed
his "understanding" to the trial court that "the more gruesome photographs" would be
excluded. (Tr. Vol. V at 905.) The state then withdrew six of the photographs taken at the
morgue. On review, we find the remaining photographs had probative value. At trial,
defense counsel emphasized the lack of physical evidence at the crime scene. Given the
decomposed condition of the body, the photographs were relevant to the state's case and
they assisted the jury in understanding the testimony of the coroner as to the cause of
death (ligature strangulation) and date of death. See State v. Jackson, 107 Ohio St.3d 53,
2005-Ohio-5981, ¶ 83 (although gruesome, autopsy photos "illustrated the coroner's
testimony on cause of death and were probative of issues of intent"). See also State v.
Mason, 82 Ohio St.3d 144, 159 (1998) (photographs of body admissible as "they illustrate
the testimony of the coroner"). The photographs also provided context for the testimony
of other witnesses, including police investigators, and we do not find them unnecessarily
repetitive or cumulative. Here, the trial court could have reasonably concluded the
photographs were relevant, and that their probative value was not substantially
outweighed by the danger of unfair prejudice. Accordingly, appellant has failed to
No. 17AP-238 17
demonstrate the trial court committed an abuse of discretion, let alone plain error, with
respect to the admission of the photographs.
{¶ 65} Based on the foregoing, appellant's first assignment of error is not well-
taken and is overruled.
{¶ 66} Under the second assignment of error, appellant asserts the trial court erred
in admitting other acts evidence during the testimony of Jenkins. Specifically, appellant
cites testimony by Jenkins, initially elicited during cross-examination, that she used
cocaine with appellant. Appellant contends the state improperly explored that issue on
redirect examination.
{¶ 67} In response, the state argues that defense counsel, during cross-
examination of Jenkins, did not move to strike her statement that she used cocaine with
appellant; rather, counsel continued to question Jenkins about her drug usage. The state
further argues that defense counsel did not object to the prosecution's initial line of
questioning on redirect examination regarding drug use, and only raised an objection
after Jenkins testified appellant preferred crack and that he was jumpy when he used that
drug.
{¶ 68} The record indicates defense counsel inquired of Jenkins on cross-
examination: "Ms. Jenkins, back in 2008, you were using crack cocaine, am I correct."
(Tr. Vol. II at 276.) Jenkins acknowledged she had used cocaine. When asked if she used
cocaine powder or crack cocaine more often, Jenkins responded: "Cocaine with Charles
Greene." (Tr. Vol. II at 278.) Defense counsel also questioned Jenkins as to whether she
was "high" on July 5, 2008, and Jenkins responded: "No, I was trying - - me and Charles
Greene was trying that day for sure, I know. * * * But we couldn't come up with no money
or no drugs." (Tr. Vol. II at 293.)
{¶ 69} On redirect examination, the prosecutor inquired of Jenkins: "[R]ight
around July 5, 2008, who were you using crack cocaine or powder cocaine with back
then?" Jenkins responded: "Charles Greene." (Tr. Vol. II at 308.) When asked, over
objection, whether appellant preferred powder or crack cocaine, Jenkins responded that
"[c]rack" was "all we did together." When asked if appellant appeared to be more alert
when he used crack cocaine, Jenkins responded: "He was jumpy, like spaced out
sometimes." (Tr. Vol. II at 310.)
No. 17AP-238 18
{¶ 70} Following Jenkins' testimony, defense counsel moved for a mistrial as to
"the testimony that was elicited on recross concerning allegations of Mr. Greene's drug
use." (Tr. Vol. II at 328.) Defense counsel argued the state "did not give notice of its
intent to use any allegations of any bad act." (Tr. Vol. II at 329.)
{¶ 71} In response, the prosecutor argued that defense counsel "raised the door to
it. We did not raise that subject. Not once in her direct testimony did she say anything
about the defendant's drug use, nor were there any questions asked that alluded to that or
would have elicited that. It was [defense counsel's] question that brought it out." (Tr. Vol.
II at 329-30.)
{¶ 72} The trial court denied the motion for mistrial, but noted it would provide a
jury instruction indicating the jury "cannot consider any other acts of the defendant." (Tr.
Vol. II at 333.) The court subsequently provided an instruction on that issue. The trial
court also ruled the state was precluded from arguing that appellant's drug usage was a
motivation for the crime.
{¶ 73} In general, "[t]he admission and exclusion of evidence are within the broad
discretion of the trial court." State v. Hammons, 12th Dist. No. CA2004-01-008, 2005-
Ohio-1409, ¶ 8, citing State v. Mays, 108 Ohio App.3d 598, 617 (8th Dist.1996). Evid.R.
404(B) states in part: "Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. 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."
{¶ 74} Under Ohio law, "[e]vidence of a defendant's prior bad acts is inadmissible
to show that the defendant has a propensity or inclination to commit the offense in
question." Hammons at ¶ 9, citing Evid.R. 404(B). However, "[p]rejudicial error will not
be found * * * when the defense 'opens the door' to this evidence." State v. Moore, 8th
Dist. No. 80416, 2003-Ohio-1154, ¶ 23, citing State v. Greer, 39 Ohio St.3d 236, 243
(1988). See also Hammons at ¶ 9, citing State v. Hartford, 21 Ohio App.3d 29, 30-31 (8th
Dist.1984) ("where evidence of a defendant's prior bad acts is first introduced or brought
out by the defense, objection to such evidence is waived and there is no reversible error");
State v. Brooks, 9th Dist. No. 07 CA 0111-M, 2008-Ohio-3723, ¶ 53 (while introduction of
No. 17AP-238 19
other acts testimony is generally prohibited, "courts will not find prejudicial error when
the defense 'opens the door' to such evidence").
{¶ 75} In the present case, information regarding appellant's drug use first arose
during defense counsel's questioning of Jenkins on cross-examination, and the trial court
could have reasonably concluded the defense opened the door to the testimony at issue.
See State v. Dennis, 10th Dist. No. 05AP-1290, 2006-Ohio-5777, ¶ 34 ("Because
defendant initially elicited the prejudicial evidence, he effectively waived his right to
contest its admissibility, and thus the court did not abuse its discretion by admitting such
evidence."); State v. Herron, 8th Dist. No. 99110, 2013-Ohio-3139, ¶ 25 (Where the
record demonstrates defense counsel's "questions of the witnesses 'opened the door' to
the evidence he now challenges, neither Evid.R. 403(A) nor 404(B) avail him.").
Accordingly, we find no abuse of discretion by the trial court in admitting the testimony at
issue.
{¶ 76} However, even assuming the evidence was inadmissible, we note the trial
court "minimized any potential prejudice" by providing a limiting instruction to the jury.
State v. Powih, 12th Dist. No. CA2016-11-023, 2017-Ohio-7208, ¶ 27-28. Specifically, the
trial court instructed the jury that it could not consider evidence of other crimes "to prove
the character of the defendant in order to show that he acted in accordance with that
character." (Tr. Vol. V at 878.) It is "presumed the jury followed those instructions."
State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 23. As also noted, the trial court
precluded the state from arguing that drug use was a motivation for the crime, and we
further note the jury acquitted appellant of the most serious offense (aggravated murder).
{¶ 77} Appellant's second assignment of error is not well-taken and is overruled.
{¶ 78} Under the third assignment of error, appellant argues he was denied the
right to a fair trial and due process when the court ordered him to wear leg restraints
throughout the trial without adequate justification. Appellant argues the trial court never
made any findings justifying the use of leg irons, nor did the court conduct a hearing to
consider evidence on the need for such restraints.
{¶ 79} A criminal defendant in a jury trial "has the right to remain free of physical
restraints that are visible to the jurors." State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-
3707, ¶ 153, citing Deck v. Missouri, 544 U.S. 622, 628-29 (2005). That right, however,
No. 17AP-238 20
"may be overcome in a particular instance by the need for physical security, escape
prevention, or courtroom decorum." Id., citing State v. Franklin, 97 Ohio St.3d 1, 2002-
Ohio-5304, ¶ 79. Further, "[t]he decision to impose such a restraint is left to the sound
discretion of the trial court." Id., citing State v. Richey, 64 Ohio St.3d 353, 358 (1992).
{¶ 80} In the present case, prior to voir dire and outside the presence of the jury,
the following colloquy took place between defense counsel and the trial court:
[DEFENSE COUNSEL]: Okay. Your Honor, please, I would
ask permission to have the handcuffs removed from Mr.
Greene. He does have leg irons on. So, I think that's
sufficient security for these proceedings.
THE COURT: Okay. They can be removed.
(Tr. Vol. I at 28.)
{¶ 81} Thus, the record indicates defense counsel did not object to the use of leg
restraints (i.e., only requesting the handcuffs be removed and stating that the use of leg
irons was "sufficient security for these proceedings"). (Tr. Vol. I at 28.) We therefore
apply plain error review.
{¶ 82} As indicated, appellant challenges the trial court's decision to permit leg
restraints without first conducting a hearing. We note, however, while "the Supreme
Court of Ohio encourages trial courts to hold a hearing on the matter * * * the court has
never required a hearing." State v. Boone, 10th Dist. No. 14AP-87, 2015-Ohio-2648, ¶ 17,
citing State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914. See also Jackson 2014-
Ohio-3707 at ¶ 153, quoting Franklin at ¶ 82 ("while 'the preferred and encouraged
practice prior to handcuffing a defendant during any phase of trial is to hold a hearing on
the matter, we do not find this to be an absolute rule' "). Rather, " '[w]here the facts and
circumstances surrounding a defendant illustrate a compelling need to impose
exceptional security procedures, the trial court's exercise of discretion in this regard
should not be disturbed unless its actions are not supported by the evidence before it.' "
Boone at ¶ 17, quoting Franklin at ¶ 82. Accordingly, "there is no per se error because the
trial court did not hold a hearing to address its security concerns." Boone at ¶ 17.
{¶ 83} In the present case, appellant does not identify anything in the record
indicating the shackles were visible to the jury, and this court's review has found nothing
No. 17AP-238 21
to suggest the jury was aware of the leg restraints. Under Ohio law, "a defendant, tried in
restraints, 'cannot establish any resulting prejudice, [where] nothing shows that the leg
restraints were visible to the jury.' " State v. Locke, 11th Dist. No. 2014-L-053, 2015-Ohio-
1067, ¶ 121, quoting Neyland at ¶ 114. Further, the record contains no indication the use
of leg restraints interfered with appellant's ability to communicate with defense counsel or
to testify on his own behalf. Thus, even accepting the trial court erred in its decision,
appellant cannot show such error affected the outcome of the proceedings.
{¶ 84} Appellant's third assignment of error is not well-taken and is overruled.
{¶ 85} Under the fourth assignment of error, appellant asserts it was error for the
trial court to introduce victim-impact evidence. Specifically, appellant argues the state
introduced such evidence through the testimony of Fisher, who testified that Seff was a
close friend of her family, and Seff treated her tenants like family. Appellant maintains
there was no proper purpose for the introduction of this testimony, the clear import of
which was to gain sympathy for Seff and prejudice to appellant.
{¶ 86} We have previously noted that the admission of evidence lies within the
discretion of the trial court. Hammons at ¶ 8. Further, "a reviewing court should not
disturb evidentiary decisions in the absence of an abuse of discretion that has created
material prejudice." State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62.
{¶ 87} The Supreme Court has held "[v]ictim-impact evidence that relates only 'to
the personal characteristics of the victim and the emotional impact of the crimes on the
victim's family' * * * is generally inadmissible at the trial phase, but such evidence can be
admissible if it also 'relat[es] to the facts attendant to the offense.' " State v. Clinton, 153
Ohio St.3d 422, 2017-Ohio-9423, ¶ 126, quoting State v. Fautenberry, 72 Ohio St.3d 435,
440 (1995).
{¶ 88} At trial, Fisher testified she and her mother were close friends of Seff.
Fisher related that Seff "carried wads of cash," and earned her living as a landlord of
approximately 15 rental properties. (Tr. Vol. II at 216.) Fisher explained Seff had two
personal residences, including her home in German Village. Fisher testified as to calls she
and her mother made to Seff's cell and home phones over the 2008 Fourth of July
weekend after not hearing from her. After Seff's death, Fisher's mother was appointed the
executor of Seff's estate, and Fisher assisted her mother in handling estate matters.
No. 17AP-238 22
Fisher testified as to assisting police in obtaining Seff's bank records, in which it was
discovered Seff's credit cards had been used at a local Walmart.
{¶ 89} Here, Fisher's testimony as to her relationship with Seff provided
background information about Seff, including details about her personal property, real
estate, and proclivity to carry large amounts of cash with her. Fisher's "preliminary
testimony" also "laid the foundation" for her testimony as to her ability to assist police
investigators in obtaining Seff's bank and credit card records. See State v. Hartman, 93
Ohio St.3d 274, 293 (2001). Thus, we find no error by the trial court in admitting such
evidence as relevant in "relating to the facts attendant" to the offense. Fautenberry at
440.
{¶ 90} We do note the questionable relevancy of the prosecutor's inquiry, during
the direct examination of Fisher, as to the demeanor of Seff's tenants on learning of her
death. We further note, however, the trial court limited this line of inquiry to "one
question." (Tr. Vol. II at 221.) On review, we find "no reasonable probability" that this
single inquiry and response affected the outcome of the trial. See State v. F.R., 10th Dist.
No. 14AP-440, 2015-Ohio-1914, ¶ 48 (finding "no reasonable possibility that the limited
victim impact testimony contributed to appellant's conviction").
{¶ 91} Appellant's fourth assignment of error is not well-taken and is overruled.
{¶ 92} Under the fifth assignment of error, appellant contends he was denied
effective assistance of counsel. Specifically, appellant argues his counsel was deficient
based on: (1) introduction of crime scene and morgue photographs of Seff's body,
(2) failure to object or request a hearing on the use of leg irons, (3) failure to object when
evidence of appellant's status as a suspect in other crimes was elicited, and (4) the
cumulative effect of counsel's errors.
{¶ 93} In order to prevail on a claim of ineffective assistance of counsel, appellant
must satisfy the "two-prong test" under Strickland v. Washington, 466 U.S. 668, 687
(1984). State v. Carter, 10th Dist. No. 03AP-778, 2005-Ohio-291, ¶ 26. First, appellant
must demonstrate that counsel's performance was "deficient," requiring a showing that
"counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Id. Under the second prong of the
Strickland test, appellant must demonstrate that counsel's deficient performance
No. 17AP-238 23
"prejudiced the defense," which requires a "showing that but for counsel's unprofessional
errors, a reasonable probability existed that the result of the trial would have been
different." Id. at ¶ 27.
{¶ 94} Appellant first contends his counsel was ineffective in failing to object to
introduction of the crime scene and morgue photographs. Appellant contends (as he did
under the first assignment of error) the number of photographs admitted was prejudicial.
{¶ 95} On review, we do not find deficient performance by counsel as to this issue.
The record indicates defense counsel filed a motion in limine prior to trial seeking to
exclude the more gruesome photographs taken at the crime scene and morgue. The
record also supports the state's contention that defense counsel worked with the
prosecution to limit the number of photographs at trial, and the prosecution agreed to
withdraw six of the morgue photographs during the proceedings. The record also reflects
the coroner's autopsy photographs were not provided to the jury. Further, in addressing
appellant's first assignment of error, we found no abuse of discretion by the trial court in
admitting the photographs at issue based on their probative value. Accordingly, appellant
has shown neither deficient performance nor resulting prejudice.
{¶ 96} Appellant next contends trial counsel was deficient in failing to object to or
request a hearing on the use of leg irons. We have previously determined, however, in
addressing appellant's third assignment of error, nothing in the record indicates the jury
was aware of the leg restraints. Accordingly, even if he could show deficient performance,
appellant cannot demonstrate prejudice under the second prong of Strickland.
{¶ 97} Appellant's final claim of ineffective assistance involves the deposition
testimony of DNA expert Tejwani. Appellant argues that, during that testimony, Tejwani
stated appellant's DNA was matched with a swab of DNA taken from Seff's vehicle due to
a match to appellant found in "CODIS." (Tr. Vol. III at 395.) Appellant cites testimony by
Tejwani that "CODIS stands for Combined DNA Index System," which contains profiles
from "known suspects." (Tr. Vol. III at 395.) Appellant contends the introduction of this
testimony permitted the jury to know appellant was already in the system due to a prior
felony conviction "of some kind." (Appellant's Brief at 30.)
{¶ 98} In response, the state argues there was no basis for an objection. The state
maintains the use of the terminology "known suspect" means only a suspicion of a crime,
No. 17AP-238 24
not an actual conviction, and that any facts regarding convictions were not before the jury.
The state further argues that Tejwani's description of CODIS was relevant and accurate,
reflecting the generally accepted purpose of the database, which is to identify unknown
profiles obtained from evidence.
{¶ 99} At the outset, we agree with the state that the source of the DNA match was
relevant to explain the timeline in the case, including how investigators, subsequent to
2008, obtained appellant's DNA profile and matched it to samples from Seff's vehicle.
More significantly, we agree with the state that the reference to "known suspects" did not
necessarily imply to the jury appellant was a convicted offender, especially in the absence
of any facts as to how his profile may have been entered into the database. See, e.g.,
People v. Harland, 251 P.3d 515, 517-18 (Colo.2010) (trial court did not err in permitting
agent to testify that defendant's DNA profile was in database where agent did not testify
as to how defendant's DNA came to be in database and no evidence was presented that
defendant engaged in any prior criminal activity). Thus, while we find unpersuasive
appellant's claim that trial counsel was deficient in failing to raise an objection, we find no
reasonable probability that the result of the proceeding would have been different had
counsel objected.
{¶ 100} Appellant also argues that the cumulative effect of counsel's errors resulted
in a denial of due process. However, in order to show cumulative error, there must be a
showing of multiple errors to cumulate, and "[w]here no individual, prejudicial error has
been shown, there can be no cumulative error." State v. Jones, 2d Dist. No. 20349, 2005-
Ohio-1208, ¶ 66.
{¶ 101} Based on the foregoing, appellant's fifth assignment of error is not well-
taken and is overruled.
{¶ 102} Under the sixth assignment of error, appellant challenges his convictions
as against the manifest weight of the evidence. Appellant contends the jury obviously did
not believe all of the testimony of Jenkins and Johnson, as it acquitted him of aggravated
murder, i.e., the jury did not believe appellant purposely caused the death of Seff while
committing or attempting to commit aggravated robbery or kidnapping. Appellant
further argues there were no witnesses to the killing and no physical evidence placing him
at the scene.
No. 17AP-238 25
{¶ 103} In considering whether a conviction is against the manifest weight of the
evidence, an appellate court is required to "review the entire record, weigh the evidence
and all reasonable inferences, and consider the credibility of witnesses." State v. Bandy,
1st Dist. No. C-160402, 2017-Ohio-5593, ¶ 55, citing State v. Thompson, 78 Ohio St.3d
380, 387 (1997). The issue in "reviewing such a claim is whether in resolving conflicts in
the evidence, and in rejecting [a defendant's] defenses, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed." Id.,citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 104} At the outset, appellant's contention that the jury's acquittal on aggravated
murder indicates his convictions on other counts are against the manifest weight of the
evidence is not persuasive, as reviewing courts generally "decline to speculate that a
mixed verdict is 'attributed solely to the jury's insecurity, confusion, or doubts as to the
adequacy of evidence.' " State v. Washington, 10th Dist. No. 09AP-424, 2009-Ohio-6665,
¶ 24, quoting State v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, ¶ 16 (10th Dist.).
See also State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 291 ("it is not for an
appellate court to speculate about why a jury decided as it did").
{¶ 105} As noted, the jury returned verdicts finding appellant guilty of murder,
aggravated robbery, and kidnapping. R.C. 2903.02(B) defines the offense of murder in
part as follows: "No person shall cause the death of another as a proximate result of the
offender's committing or attempting to commit an offense of violence that is a felony of
the first or second degree." R.C. 2911.01(A) sets forth the offense of aggravated robbery,
and states in part: "No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or
offense, shall * * * [i]nflict, or attempt to inflict, serious physical harm on another."
{¶ 106} The offense of kidnapping is defined under R.C. 2905.01 in part as follows:
(A) No person, by force, threat, or deception * * * shall remove
another from the place where the other person is found or
restrain the liberty of the other person, for any of the
following purposes:
***
(2) To facilitate the commission of any felony or flight
thereafter;
No. 17AP-238 26
(3) To terrorize, or to inflict serious physical harm on the
victim or another;
***
(B) No person, by force, threat, or deception * * * shall
knowingly do any of the following, under circumstances that
create a substantial risk of serious physical harm to the victim
* * *:
(1) Remove another from the place where the other person is
found;
(2) Restrain another of the other person's liberty.
{¶ 107} The state's general theory of the case, as articulated during closing
argument, was that Seff, upon leaving the tool rental store with hedge trimmers around
noon on July 5, 2008, received a call from appellant at 1:28 p.m., presumably to arrange
for work. The prosecutor, citing testimony by Jenkins that she observed Seff pick
appellant up that afternoon, theorized appellant used the hedge trimmers (never
recovered as evidence) to strike Seff, causing the blood splatter on the fence; appellant
then bound Seff's wrists, wrapped a shirt around her head, knotted a ligature around her
throat, and forced her body inside the decorative well. A short time later, appellant was in
possession of Seff's cell phone and credit cards.
{¶ 108} At trial, the state presented testimony that Seff was known to carry large
amounts of cash on her person. Approximately two weeks before Seff's death, appellant
contacted Jenkins and asked her to "act like [she] was paying [Seff] rent and push her
down and rob her." (Tr. Vol. II at 252.) Jenkins refused appellant's request.
Approximately one week before Seff's death, Johnson observed appellant at Seff's
residence on South High Street, the location where Seff's body was found on July 9, 2008.
The state introduced a receipt prepared by Seff indicating she paid appellant $50 on
July 1, 2008.
{¶ 109} On July 5, 2008, the last day Seff was observed alive, Seff took hedge
trimmers to a tool rental store for sharpening. She left the store at 12:04 p.m. The state
presented phone records indicating appellant phoned Seff a short time later, at 12:29 p.m.
Appellant again phoned Seff at 1:28 p.m. Appellant acknowledged making the calls.
No. 17AP-238 27
Jenkins testified she observed Seff pick appellant up that day in her vehicle. By 2:46 p.m.
that same afternoon, appellant was in possession of Seff's cell phone.
{¶ 110} Appellant placed calls to Jenkins that day from Seff's phone. During the
evening of July 5, 2008, appellant was also placing calls on Seff's phone to Greathouse.
Over a three-day period, from the afternoon of July 5 through the evening of July 8, 2008,
at least 47 calls were made from Seff's cell phone to either Jenkins or Greathouse. The
jury heard testimony indicating appellant provided varying accounts of how he came into
possession of Seff's phone. Appellant initially told Jenkins that Seff gave him the phone,
but later told Jenkins he obtained the phone by breaking into Seff's home after learning
she had died. Appellant told Greathouse he had found Seff's phone.
{¶ 111} On July 6, 2008, Greathouse and another individual were utilizing Seff's
credit cards to make purchases at various stores. Greathouse testified she obtained the
cards from appellant. Jenkins testified appellant asked her to use Seff's "Lowe's card," but
she refused. (Tr. Vol. II at 260.) Appellant's DNA was present inside Seff's vehicle on the
steering wheel and the driver's side arm rest.
{¶ 112} On July 9, 2008, Seff's body was discovered upside down in a decorative
wishing well outside her residence on South High Street. Dr. Fardal opined Seff had been
dead four to five days prior to the autopsy (on July 10, 2008). Seff's hands were tied with
duct tape, and Dr. Fardal concluded the cause of death was ligature strangulation.
{¶ 113} Appellant testified on his own behalf, denying any involvement in Seff's
death. Appellant stated he obtained Seff's cell phone and credit cards from a "white guy."
(Tr. Vol. IV at 683.) Appellant claimed he did not look at the cards to know they belonged
to Seff. Appellant denied ever driving Seff's vehicle, and also denied asking Jenkins to set
up a robbery for him.
{¶ 114} Appellant acknowledged signing Seff's receipt book on July 1, 2008
indicating he performed work for her. He also acknowledged that he lied to detectives
when he told them Seff never paid him more than $30 at a time. Despite numerous
witnesses testifying about Seff's habit of carrying large amounts of cash, appellant
testified he "never" observed Seff "with a wad of money." (Tr. Vol. IV at 699.) Appellant
acknowledged calling Seff on July 5, 2008 at 1:28 p.m., explaining: "I guess I was
probably calling Alyce for work or something. I don't know." (Tr. Vol. IV at 721.) When
No. 17AP-238 28
asked if he lied to detectives by denying he possessed Seff's phone, appellant stated: "I
guess it was. Yes it was." (Tr. Vol. IV at 729.) In contrast to the testimony of Johnson,
who stated she observed appellant at Seff's residence on South High Street approximately
one week prior to Seff's death, appellant denied he had ever been to that location.
{¶ 115} While appellant challenges the credibility of Jenkins and Johnson, the
jury was "free to believe or disbelieve all or any of the testimony." State v. Sevilla, 10th
Dist. No. 06AP-954, 2007-Ohio-2789, ¶ 13. In this respect, the trier of fact was "in the
best position to take into account inconsistencies, along with the witnesses' manner and
demeanor, and determine whether the witnesses' testimony is credible." Id. The jury was
also in the best position to consider the credibility of appellant's testimony, and was free
to reject his version of the events. Under Ohio law, a conviction is not against the
manifest weight of the evidence "because the trier of fact believed the state's version of
events over the defendant's version." State v. Rankin, 10th Dist. No. 10AP-1118, 2011-
Ohio-5131, ¶ 29. Ultimately, "inconsistencies between defendant's testimony and that of
the state's witnesses, were the jury's to resolve." Id. at ¶ 32.
{¶ 116} Appellant's claim that the lack of physical evidence at the crime scene
undermines the jury's verdict is not persuasive. This court has previously noted that "a
lack of physical evidence alone does [not] render a conviction against the manifest weight
of the evidence." State v. Shedwick, 10th Dist. No. 11AP-709, 2012-Ohio-2270, ¶ 32,
citing State v. Berry, 10th Dist. No. 10AP-1187, 2011-Ohio-6452, ¶ 20. See also State v.
Henderson, 9th Dist. No. 27078, 2014-Ohio-5782, ¶ 31 ("lack of physical evidence is not
dispositive, but merely a factor for the jury to weigh"). At trial, counsel for appellant
emphasized to the jury the lack of physical evidence from the crime scene. The absence of
physical evidence in this case was addressed by the state's witnesses, attributed in large
part to the fact Seff's decomposed body was not discovered until at least four days after
the homicide. Despite the lack of physical evidence from the scene, the state presented
other sufficient evidence which, if believed, supported the convictions.
{¶ 117} Based on this court's review of the testimony and evidence presented, we
conclude the jury did not clearly lose its way and create a manifest miscarriage of justice
in finding appellant guilty of the offenses. Accordingly, we find appellant's convictions for
No. 17AP-238 29
murder, aggravated robbery, and kidnapping were not against the manifest weight of the
evidence.
{¶ 118} Accordingly, we overrule appellant's sixth assignment of error.
{¶ 119} Based on the foregoing, appellant's six assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER and DORRIAN, JJ., concur.
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