State v. Frazier , 2015 Ohio 3116 ( 2015 )

[Cite as State v. Frazier, 2015-Ohio-3116.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140369
TRIAL NO. B-1208535
Plaintiff-Appellee, :
vs. : O P I N I O N.
BYRON FRAZIER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: August 5, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, Christine Y. Jones, David
Hoffman and Josh Thompson, Assistant Public Defenders, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
M OCK , Judge.
{¶1} Defendant-appellant Byron Frazier was charged with the aggravated
murder, murder, and felonious assault of Kyila Shields, the attempted murder and
felonious assault of Adam Deters, and the attempted murder and felonious assault of
their two-month-old son, Adam Deters, Jr., (“AJ”) in connection with shootings on
Christmas Day in 2012. Each of the charges was accompanied by firearm specifications.
{¶2} The charges were tried to a jury. At the close of the state’s case-in-chief,
the trial court granted Frazier’s Crim.R. 29 motion for an acquittal on the attempted-
murder and felonious-assault charges regarding AJ. The remaining charges were
submitted to the jury. The jury found Frazier not guilty of the aggravated murder of
Kyila, but guilty of the remaining charges and firearm specifications.
{¶3} At sentencing, the trial court merged the felonious assault and murder of
Kyila. It also merged the felonious assault and attempted murder of Deters, and it
merged the firearm specifications with respect to each of the victims. It sentenced
Frazier to 15 years to life for the murder of Kyila, and to three years for the
accompanying firearm specifications, to 11 years for the attempted murder of Deters,
and to three years on the merged firearm specifications relating to Deters. The trial
court ordered that the terms be served consecutively, for a total sentence of 32 years to
life in prison. Frazier now appeals.
{¶4} In this appeal, Frazier challenges the weight and sufficiency of the
evidence adduced to support his convictions, the trial court’s admission of evidence, the
trial court’s failure to grant a mistrial due to prosecutorial misconduct during closing
argument, the trial court’s complicity instruction, the trial court’s failure to journalize a
judgment entry discharging the jury following the first mistrial, and the trial court’s
failure to enter its sentencing findings on the judgment entry. He also alleges that
cumulative error deprived him of a fair trial. Because the trial court failed to include the
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consecutive-sentence findings in the judgment entry, we remand the cause to the trial
court to issue a nunc pro tunc entry. We affirm the trial court’s judgment in all other
respects.
A Family Feud Turns Deadly
{¶5} The following evidence was presented at Frazier’s trial. Adam Deters
testified that on December 25, 2012, he, his fiancée Kyila Shields, AJ, and Adam’s
daughter, Jada, traveled to the home of Linda Shields, Kyila’s maternal grandmother.
Adam and Kyila had been dating two years. Adam knew Kyila’s mother, Regina Shields,
almost as long as he had known Kyila. He met Regina’s boyfriend, Byron Germany, in
2011 when Germany had been released from prison. Frazier is Germany’s son. Adam
had known Frazier for as long as he had known Germany. The two men had met
multiple times, and Frazier had even attended Adam’s 25th birthday party.
{¶6} Everyone got along well until a disagreement arose about a house that
Kyila and Adam had rented from Regina and Germany in the summer of 2012. Before
leaving, Adam and Kyila had caused significant damage to the rental home. This
angered Germany. Adam and Kyila refused to speak with Regina or Germany about the
matter. Frazier, however, inserted himself into the family dispute, arguing with both
Adam and Kyila on the phone about the damage. Frazier repeatedly told Adam to “meet
me and we can fight.” He also threatened to shoot Adam.
{¶7} Shortly after arriving at Linda’s home on Christmas Day, Adam left.
Kyila, who had stayed behind, became visibly upset when her mother arrived with
Frazier and Germany. Kyila yelled that Germany and Frazier had to leave. Frazier
threatened in response, “I’m having a very bad day; you don’t want to fuck with me.”
Frazier was only in the house for a few minutes before leaving. Germany, however,
stayed and began arguing with Kyila. Germany threatened Kyila, saying, “I ain’t going to
get you. I’m going to get your man.”
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{¶8} When Adam returned, Kyila and Regina were arguing. Adam went to
the back room where Germany approached him. They began arguing about the rental
house. At some point later, Germany threatened, “I’m going to take care of all you
motherfuckers tonight, the both of you tonight.” Eventually, Linda had Germany
escorted out of her home.
{¶9} Before Kyila and Adam left, Kyila told everyone that they were going to
the home of her paternal grandmother, Doris Lawrence. When Adam and Kyila arrived
at Lawrence’s home, it was dark outside. They parked Kyila’s car on the right side of the
street facing the turnaround. Adam testified that he, Kyila, and Jada stood at the back of
the car unloading presents, while AJ remained in his car seat. A black SUV drove by
very slowly. The SUV’s windows were so darkly tinted that Adam could not see inside it,
and no one else was outside. The SUV drove to the end of the street, and turned around.
Adam testified that he felt uneasy, so he told Jada to go inside Lawrence’s home. Kyila,
however, was confrontational, asking, “What the fuck is this? Who’s this?”
{¶10} The black SUV then drove back past Kyila’s car before parking 20 feet
away. Adam testified that Frazier and another man jumped out of the SUV. Frazier
exited from the back passenger door on the driver’s side of the SUV with a two-feet-long,
black gun in his hand, and started walking toward them. He told Adam and Kyila, “This
is what you get.” Kyila told Adam to leave. Adam jumped into Kyila’s car and drove
away. As soon as he got in the vehicle, Frazier and the other man fired at least ten shots
at Kyila’s car. Adam was shot in the top of his head. He was later treated with eight
staples.
{¶11} Adam testified that Kyila had remained standing behind the car. Adam
drove Kyila’s car to the end of the cul-de-sac and stopped there, waiting. When he
looked back, no one was there. The black SUV had gone. As Adam came back, he found
Kyila’s purse in the middle of the street, and thought that she had been abducted. He
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ran with AJ into Lawrence’s home. Panicked, he asked if Kyila had come inside.
Lawrence called 911. Because Adam thought Bryron Frazier was named Byron
Germany, Jr., he indicated that to the police. He said the shooter was 26 years old, and
the vehicle involved was a black Honda SUV. As he was going into unconsciousness,
Adam said Frazier took Kyila. He told how Frazier had “said that he was going to kill
us.”
{¶12} Belinda Griffin, Kyila’s great aunt, had answered the door when Jada
knocked. Griffin testified that from the porch, she had seen three people dressed in
black hoodies and one person in white clothing down the street. Kyila, who was wearing
a white shirt, was arguing with them, and they pushed and shoved her to the ground.
Griffin saw Kyila get up and run toward the back of her car, which had been facing the
street, when someone grabbed her from behind and dragged her towards a black SUV.
According to Griffin, the black SUV had been facing the dead end of the street. Griffin
then heard at least ten shots being fired at Kyila’s car. She ran into the house. Five or
ten minutes later, Adam came into the house with AJ. Griffin testified that Adam was
hysterical. He was crying and covered in blood. Adam said that Kyila had been
kidnapped, and he kept talking about “Little B,” which was Frazier’s nickname.
Police Investigation
{¶13} Cincinnati Bell records showed that someone had sent Frazier a text
message at 7:40 p.m. and 7:42 p.m. Christmas night. At that time, Frazier’s phone
utilized the two cell phone towers closest to Lawrence’s home to receive the messages.
Roughly three hours later, Frazier had sent a text message saying, “Nothin I took care of
it.” When police apprehended Frazier at his grandmother’s home the following
morning, they found a single knit glove in his pocket and he was wearing a dark-colored
shirt. Both items were tested for gun-shot residue. The glove had five particles of gun-
shot residue and the shirt had 11 particles of gun-shot residue. Police also found a cell
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phone in the same room where they arrested Frazier. Frazier had a hooded black mink
coat. After executing a search warrant on Frazier’s residence, police found no weapons,
but they did find three empty Glock firearm boxes, two magazines to hold bullets, three
test-fire bullets, and a shoulder holster. They also found another cell phone belonging
to Frazier. The police obtained a search warrant to look in Frazier’s cell phones.
{¶14} Police, who had responded to the scene of the shooting, found several
shell casings in the middle of the street. Eventually, they found Kyila’s lifeless body lying
in the grass. An autopsy revealed that Kyila had been shot four times, three times in the
back and once in the right buttock. The deputy coroner testified that Kyila had died
from internal bleeding due to the gunshot wounds.
{¶15} Criminalists Denise Burns and Don Werling processed the scene. Burns
photographed the scene. She testified that it was dark, but that porch lights on the
house were lit. Some artificial light was obvious in the photographs. Burns testified she
could see Werling’s facial features and clothing without a flashlight, even when he was
more than 20 feet away. She further testified that there was one street light on the street
where the shooting had occurred, as well as lights on the houses lining the street. Burns
and Werling created a diagram of the scene highlighting the evidence that had been
recovered. A laser scanner was used to measure the distance between different objects
and to ensure the diagram was made to scale.
{¶16} On cross-examination, Burns admitted that prior to her testimony she
had discussed with the prosecutor that she had seen Werling’s face from at least 20 feet
away as she processed the scene the night of the shootings. She admitted that since it
was dark outside at the time they processed the crime scene, artificial lighting had been
used in some of the photographs and they did not depict how someone would naturally
see the scene.
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{¶17} Werling also admitted that it was very dark while they were processing
the scene. He testified that multiple vehicles in the area had been damaged by the
gunshots and that Kylie’s car had sustained significant damage. The passenger side
mirror was broken. Three indentations showed where bullets had hit the driver’s door.
The rear driver’s side window was broken, and the sun screen covering it from the inside
was ripped. A bullet had damaged the rearview mirror inside the car and the center
console located above it. The windshield was damaged, too. Werling found copper
jacketing from a bullet on the rear right-side passenger seat. The lead core of a bullet
was found in the floorboard area of the driver’s door.
{¶18} The criminalists testified that they recovered two different brands of 9
mm shell casings at the scene. A total of 17 casings were examined. No fingerprints or
DNA was found on the casings. After evaluating the autopsy bullet and pieces of other
bullets, Kevin Lattyak, a firearm examiner, determined that two different guns had been
used; one gun had fired two of the casings and another gun had fired 15 of the
casings. The 9 mm casings recovered from Frazier’s apartment did not match those at
the scene. One of the boxes of ammunition recovered from Frazier’s apartment
contained cartridges that were consistent with a Hi-Point firearm. Lattyak testified that
a shorter rifle, such as a carbine, could fire 9 mm cartridges. A carbine would be about
two feet long.
Regina’s Testimony
{¶19} Regina testified at trial before she was to serve a sentence in the federal
penitentiary for tax fraud. She had gone to prison for committing robbery while Kyila
was a child. During that time, Kyila had lived with Linda Shields, Kyila’s father, and
Lawrence. Regina testified that she had been in a relationship with Germany for 13
years, and was still living with him at the time of trial. They had a nine-year-old
daughter. Regina testified that she had known Frazier for years, since he was 18 or 19
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years old, and that he and Germany were very close. Anytime Germany asked Frazier to
do something, he did it.
{¶20} Regina’s description of the Christmas party at Linda’s house was similar
to Linda Shields’s and Adam’s descriptions. She acknowledged that Kyila and Frazier
had a very heated argument. Frazier was so upset when he was being forced out of the
house that he said, “I ain’t got to do shit to you. I’ll fuck your man up, bitch ass white
boy.” Frazier continued, “I’ll mirk (kill) that bitch ass white boy. I’ll do it tonight. Yeah,
I’ll do it tonight. You know, go on out the door.” Regina testified that Germany had then
left with Frazier after this initial confrontation. When Germany came back inside a half
hour later, she was arguing with Kyila.
{¶21} According to Regina, Kyila and Germany had started arguing when Kyila
learned that Germany had said something to Adam. Regina heard Germany tell Kyila, “I
ain’t got to do nothing to you. If I want to do something, I’ll get your man.” Regina
testified that Germany told their nine-year-old daughter that she could not go with Kyila
when she left the house. Regina testified that she had seen Frazier, who had driven
separately to the party, standing outside his car, which had been parked up the street
from Linda’s house. She also saw him walking up the street to a carwash. Regina
testified that Lawrence lived less than five minutes away. Germany and Frazier both
knew the address. When Regina later left Linda’s house with Germany, she warned him
that she would tell on him if he did anything to Kyila or Adam.
{¶22} Upon learning that Adam had been shot, Regina immediately suspected
Frazier’s involvement. When she returned to Linda’s house and heard that Kyila had
been killed, Regina gave the police Frazier’s name, his phone number, and the addresses
where he stayed. Regina knew Frazier carried guns, including a sawed-off shotgun that
was about two feet long. She said the firearm looked like a rifle without a long neck.
Regina denied that she had been upset with Kyila and Adam for damaging the rental
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property, and testified that when Kyila and Adam had left the Christmas party at Linda’s
home, she had promised them things would be better.
Bryant’s Testimony
{¶23} Michael Bryant testified that he had known Frazier and Germany for
years. Bryant and Germany had been in a “business relationship” since 2006. Bryant
testified that Frazier was part of the business. Bryant acknowledged that he had a
horrible criminal record, and that he expected some leniency in regard to his own
criminal charges in exchange for testifying against Frazier. But he admitted that the
prosecutors and police had not made any promises to him. Bryant stated his testimony
was truthful.
{¶24} Bryant testified that shortly after Christmas 2012, he was incarcerated in
the Hamilton County Justice Center with Frazier. On Christmas night, Frazier had
called him and had said “his daddy gave him permission to handle that.” Frazier said he
had “taken care of” Adam. Frazier told Bryant how he had watched as Adam and Kyila
were leaving Linda’s home and then followed them around the corner, where he had
shot them.
{¶25} According to Bryant, Frazier said that Germany had suggested that
Frazier do it because Adam owed Germany money for some property. Adam was the
target of the “hit.” When Bryant had spoken with Frazier, Frazier had thought that
he had killed Adam because he had shot Adam in the head. Bryant met with police in
February 2013, and told them that Frazier had said Kyila had been shot six times in the
stomach. Bryant further testified that Frazier’s nickname was “Little B.”
{¶26} On cross-examination, Bryant admitted that he had been convicted of
receiving stolen property, trafficking in cocaine, and falsification, and that he was out on
bail even though he was currently facing charges for aggravated burglary, aggravated
robbery, robbery, and felonious assault.
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Defense Testimony
{¶27} Frazier testified in his defense and also presented testimony from Officer
Jeff Zucker. Officer Zucker testified that he was one of the first officers to arrive at the
scene of the shooting. He stated that when he entered Lawrence’s home, Deters was
bleeding and upset. Although he did not question Deters directly, he heard Deters say
that Kyila had been kidnapped by her ex-boyfriend.
{¶28} Frazier testified that he went to Linda Shields’s home on Christmas Day.
He drove separately from his father, Regina Shields, and their daughter. He
acknowledged that he had previously called Kyila for his father about the damage to the
house, and that these phone calls had caused “bad blood” between them. When he
entered Linda’s home on Christmas Day, he stayed near the front door. Kyila had
approached him. She was angry and confrontational, and asked him why he was there.
He told her, “Today is not the day to ‘F’ with me. It’s Christmas and I’m having a bad day
already.” Frazier testified that he left shortly thereafter.
{¶29} He waited outside in his car for five minutes. At that point, his father
came outside and he drove them to his grandmother’s home in Bond Hill. They stayed
for 30 minutes, and then left to go to his other grandmother’s home. As they neared her
home in Forest Park, his father called Linda Shields, who informed him that Kyila and
Regina were arguing in the bathroom. Germany told Frazier to turn around and take
him back to Linda’s house.
{¶30} Frazier took Germany back to Linda’s house around 6:20 or 6:30 p.m.
Frazier pulled his car up to the curb, let Germany out, and immediately headed back to
his grandmother’s home in Forest Park. He left shortly thereafter to pick up his mom
and take her home. When he called his mother to let her know he was coming, she
changed her mind and decided to stay at the party.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} Frazier decided to go home. On the way there, he stopped at a gas
station. When he got home, he went to the restroom. He set a few movies to record on
his DVR and then left to go back to his grandmother’s home in Forest Park. On his way
there, he realized he had forgotten to set his security alarm, so he returned home to set
it. After setting his alarm, he went to his grandmother’s home in Forest Park. He fell
asleep watching television. He was awakened by the police, who had come to arrest him
as a suspect in the shooting death of Kyila.
{¶32} On cross-examination, Frazier testified that if Germany asked him to
help him, he would. He testified, however, that Germany had said he would kill Adam.
Frazier claimed that he was not a violent person, but admitted that he owned three
firearms. Frazier also admitted that he knew Kyila drove a white SUV. Frazier
acknowledged he had sent a text message earlier on Christmas Day to Michael Bryant,
saying “K, you got everything you need.” Bryant had responded, “Need car.” Bryant
then texted, “Hold on. Let me get my guys on deck.” Frazier and Bryant also talked on
the phone twice after the shooting. But Frazier denied telling Bryant that he had shot
Kyila or Adam. Frazier stated that no one had called to tell him that Kyila had been
killed and that he had learned of her death by watching the news.
Weight and Sufficiency of the Evidence
{¶33} In his first assignment of error, Frazier challenges the sufficiency and
weight of the evidence adduced to support his convictions.
{¶34} In reviewing a challenge to the sufficiency of the evidence, this court
must determine whether after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). In addressing a manifest-weight-of-the-evidence challenge, this
court must review the entire record, weigh the evidence and all reasonable inferences,
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consider the credibility of the witnesses, and determine whether, in resolving conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage
of justice that the convictions must be reversed and a new trial ordered. Id. at 387.
{¶35} The state presented sufficient evidence to support Frazier’s
convictions. Linda and Regina testified that Kyila and Frazier had a heated
argument at a Christmas party at Linda’s home. Frazier was asked to leave. Before
leaving, he threatened to kill Adam. Regina testified that Frazier had initially left the
area, but then returned, and was outside near Linda’s house at the time that Adam
and Kyila had left.
{¶36} Adam and Kyila then drove to Lawrence’s home. While Adam and
Kyila were unloading Christmas packages from the back of their car, a black SUV
with tinted windows drove down the street and turned around. Adam testified that it
drove past them again slowly, and then stopped behind their vehicle. Frazier jumped
out of the black SUV with a gun, along with another man. Adam, felt uneasy and
jumped into the car, while Kyila stood behind it. As Adam drove away, Frazier began
shooting at Kyila and him.
{¶37} Adam was shot in the head, but managed to escape to Lawrence’s
home. Once Adam was inside, Lawrence called for emergency assistance, reporting
that Adam had been shot and that Kyila was believed to have been abducted by the
men in the SUV. During the 911 call, Adam can be heard saying that Byron Germany,
Jr., and “Little B” had shot him.
{¶38} The police officers who had arrived on the scene found shell casings
in the middle of the street, and damage to the driver’s side of Kyila’s vehicle
consistent with Adam’s version of events. They located Adam inside Lawrence’s
home and rendered medical treatment to him. Adam was transported to the hospital
where he received eight staples in his head.
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{¶39} During their search of the scene, police found Kyila lying dead on the
side of the street. Criminalists testified that 17 9 mm shell casings had been
recovered. Lattyak, the firearms examiner, testified that two different guns had been
used and that one gun had fired two of the casings and another gun had fired 15 of
the casings. The deputy coroner testified that Kyila had been shot four times and
that she had died from internal bleeding due to the gunshot wounds.
{¶40} The following day, when Frazier was arrested, gunshot residue was
found on a glove in his pocket and on his shirt. Frazier’s cell phone records placed
him in the vicinity of the shootings at the time they had occurred. Moreover, Bryant
testified that Frazier had called him the night of the murder to say that he had shot
Deters and that Kyila had also been shot multiple times. When viewed in the light
most favorable to the prosecution, this evidence, if believed, was sufficient for the
jury to conclude that Frazier, with the use of a firearm, had committed the felonious
assault and murder of Kyila and the felonious assault and attempted murder of
Adam.
{¶41} Moreover, the jury, as the trier of fact, was in the best position to
judge the credibility of the witnesses. During cross-examination, defense counsel
highlighted the inconsistencies in the testimony of the state’s witnesses and argued
the limits of the physical evidence against Frazier. And while Frazier testified that he
had left the party to go his grandmother’s home, and that he had then driven home,
where he had been at the time of shooting, maintaining that his father had
committed the offenses, the jury was free to reject his version of the events. See State
v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Based upon our review of the
record, we cannot conclude that the inconsistencies in the testimony of the state’s
witnesses rendered their testimony so unreliable or unworthy of belief that the jury
lost its way and created a manifest miscarriage of justice in finding Frazier guilty of
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the offenses. See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. We, therefore,
overrule the first assignment of error.
Admission of Evidence from Frazier’s Apartment
{¶42} In his second assignment of error, Frazier argues that the trial court
erred in admitting three empty carrying cases for Glock handguns, two empty
magazines, a gun holster, three test-fire bullets, which police had recovered during a
search of his apartment, and photographs of those items. Frazier argues that this
evidence was irrelevant and prejudicial, and therefore, was inadmissible pursuant to
Evid.R. 401, 402, 403 and 404.
{¶43} Generally, all relevant evidence is admissible. Evid.R. 402. “‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Evid.R. 401. Even though evidence might be
relevant, it must be excluded if “its probative value is substantially outweighed by the
degree of unfair prejudice of confusion of the issues, or of misleading the jury.”
Evid.R. 403(A). Evid.R. 404(B) prohibits the introduction of evidence of “other
crimes, wrongs, or acts” to prove the character of a person and that he acted in
conformity with that character. See State v. Cotton, 118 Ohio App.3d 125, 131, 680
N.E.2d 657 (1st Dist.1996).
{¶44} It is up to the trial court to decide initial questions of admissibility.
Evid.R. 104(A). We will not disturb those rulings unless the trial court abused its
discretion by admitting the evidence. See State v. Davis, 116 Ohio St.3d 404, 2008-
Ohio-2, 880 N.E.2d 31, ¶ 172.
{¶45} We cannot say the trial court abused its discretion in determining the
challenged evidence was relevant and more probative than prejudicial. The items
proved Frazier had access to 9 mm ammunition, which was used in the crime, and
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tended to show Frazier knew how to use firearms and carried them on his person.
And because two guns had been fired during the incident, any one of Frazier’s three
missing guns could have been used in the shootings by his unidentified accomplice.
Therefore, the probative value of this evidence was not outweighed by its danger of
unfair prejudice. In any event, the evidence of Frazier’s guilt was overwhelming.
Thus, we are convinced that error, if any, in the admission of the evidence was
harmless. We, therefore, overrule his second assignment of error.
Admission of the Cell-Phone-Tower Maps
{¶46} In his third assignment of error, Frazier contends the trial court erred
in admitting cell-tower maps as business records, in violation of his Sixth
Amendment right to confront witnesses.
{¶47} At trial, Paula Papke, manager of the security office at Cincinnati Bell,
testified that she manages the subpoena-compliance center and is the custodian for
the Cincinnati Bell records. Exhibit M-1 listed all the cell phone towers and exhibit 2
listed the cellular activity for Frazier’s phone, which had been provided to police
pursuant to a search warrant. Frazier did not object to these two exhibits.
{¶48} Papke testified regarding three other exhibits, M-3, M-4, and M-5.
Papke testified that the engineering office had built all the cell phone towers into the
Google Earth program and that Cincinnati Bell used the program for creating maps
for various reasons.
{¶49} Papke testified that at the prosecutor’s request, she had mapped on
M-3 the distance between cell tower 26 and the address of the shootings and the
distance was .9 mile. On M-4 she mapped the distance of .8 mile between cell tower
38 and the address of the shootings. Papke further testified that the distance
between the cell towers and the address of the shootings was accurate in both maps.
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{¶50} Papke testified that M-5 depicted the location of cell tower 48 in
relation to an address in Forest Park, where Frazier had been apprehended hours
after the shooting. She testified that she generated the map, which reflected a
distance of .9 mile from the location of the cell tower to the Forest Park address.
Papke further testified that the three maps were generated by and kept in the
ordinary course of business with Cincinnati Bell.
{¶51} Frazier’s counsel objected to exhibits M-3, M-4, and M-5, but only on
the basis that the maps lacked a scale. Counsel argued that absent such a scale there
was not enough of a foundation to see what the distances on the maps were. Counsel
did not object to the exhibits on the basis that they were inadmissible hearsay, which
violated his constitutional right to confrontation, the only ground raised in this
appeal. Following defense counsel’s objection, the trial court required further
questioning of Papke, but overruled the objection.
{¶52} Frazier’s failure to object at trial on the specific grounds raised has
forfeited the issue, limiting us to a plain-error analysis. Evid.R. 103(A)(1); State v.
Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240; see Crim.R. 52. Plain
error is recognized only in exceptional circumstances to avoid a miscarriage of
justice. State v. Long, 53 Ohio St.2d 91, 94-95, 372 N.E.2d 804 (1978).
{¶53} Given our review of the record, we cannot conclude that the trial
court’s admission of the three exhibits rose to the level of plain error. The exhibits
were demonstrative aids that were merely cumulative to Papke’s testimony and to
the properly admitted cell phone records. See State v. Hood, 135 Ohio St.3d 137,
2012-Ohio-6208, 984 N.E.2d 1057. State’s exhibit M-2, which was admitted at trial
without objection, listed all the phone calls, including those made on Frazier’s phone
over the course of Christmas Day and the day following the shooting. That exhibit
contained the date and time of the calls, the numbers involved in the calls, the type of
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call, such as text message, phone call, or social data download, and the cell phone
tower utilized for each particular call or message. State’s exhibit M-1 contained all
the addresses for Cincinnati Bell’s cell phone towers.
{¶54} There is also no confrontation-clause problem. Papke testified as to
the exhibits and was subjected to extensive cross-examination about the maps,
including their lack of a scale, and how the signal from a person’s cell phone is
typically, but not always, transmitted to the tower closest to the person receiving the
communication. As a result, we overrule the third assignment of error.
Jury Instruction on Complicity
{¶55} In his fourth assignment of error, Frazier argues the trial court erred in
instructing the jury on complicity, which violated his right to due process under the Fifth
and Fourteenth Amendments to the United States Constitution and Article I, Sections 10
and 16 of the Ohio Constitution when the state’s evidence at trial only supported the
theory that he had acted as a principal offender.
{¶56} A jury instruction on complicity is warranted where the evidence
demonstrates that an individual “acting with the kind of culpability required for the
commission of an offense,” aids or abets another in committing the offense. R.C.
2923.02(A)(2); State v. Alexander, 1st Dist. Hamilton No. C-110035, 2012-Ohio-460, ¶
31. Complicity requires a showing “that the defendant supported, assisted, encouraged,
cooperated with, advised, or incited the principal in the commission of the crime, and
that the defendant shared the criminal intent of the principal.” State v. Johnson, 93
Ohio St.3d 240, 754 N.E.2d 766 (2001), syllabus. Evidence of aiding and abetting may
be demonstrated by both direct and circumstantial evidence. State v. Cartellone, 3 Ohio
App.3d 145, 150, 444 N.E.2d 68 (8th Dist.1981).
{¶57} Here, there was ample evidence before the jury to warrant the
complicity instruction. Deters testified that Frazier had exited from the back
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OHIO FIRST DISTRICT COURT OF APPEALS
passenger door of the driver’s side of the SUV, and that Frazier and at least one other
person had fired shots at Kyila and him. Griffin testified that she saw three men,
who had jumped out of the SUV and had begun shooting at Kyila and Deters, and
that the men had drug Kyila. Multiple gunshots were fired. Criminalists testified that
17 9 mm casings had been recovered. The firearms examiner testified that two of the
casings had been fired from one weapon and 15 casings had been fired from another
weapon. Deters had seen Frazier firing shots at the Touareg. Testimony revealed
that Kyila, who had been standing at the back of the Touareg before Deters had
driven off, had been shot four times. The coroner testified that all four shots had
contributed to her death.
{¶58} Additionally, testimony from Regina and Bryant supported the theory
that Frazier had acted with Germany in committing the offenses. Bryant testified
that Frazier had told him that Germany had planned the hit, and that Frazier had
merely followed his orders in carrying it out. Frazier admitted that following the
confrontation with Kyila, he had left Linda’s house with his father. Regina testified
that after 30 minutes, Frazier had dropped Germany back at Linda Shield’s home
and had remained nearby. Thus, the state produced evidence from which a jury
could have concluded that Frazier had acted in concert with Germany and others to
commit the offenses. Thus, the trial court did not abuse its discretion in giving the
complicity instruction. We, therefore, overrule the fourth assignment of error.
Motion for Mistrial
{¶59} In his fifth assignment of error, Frazier alleges “the trial court erred by
denying his motion for mistrial based upon prosecutorial misconduct in closing
argument, which denied him his rights bestowed by the Fifth, Sixth, and Fourteenth
Amendments to the U.S. Constitution, resulting in the denial of a fair trial.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶60} “Mistrials need be declared only when the ends of justice so require
and when a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127,
580 N.E.2d 1 (1991). A trial court’s decision to grant or deny a mistrial lies within its
sound discretion and will not be disturbed on appeal absent an abuse of discretion.
State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 42. An
abuse of discretion connotes more than an error of law or an error in judgment;
instead it implies that the trial court’s attitude is arbitrary, unreasonable, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶61} During closing argument, defense counsel implied that Officer
Burns’s testimony about crime-scene visibility was coached. Counsel then pointed to
a placard that set forth a quote from the American Bar Association Standards for
Criminal Justice 3-1.1(c), which provided, “the duty of the prosecutor is to seek
justice not merely to convict.” At the conclusion of closing argument, defense
counsel left the placard on an easel.
{¶62} During the rebuttal portion of closing argument, the assistant
prosecutor, when discussing the credibility of Frazier’s testimony, wrote on the
placard, “Liars do not seek justice, but seek to avoid confrontation.” Defense counsel
objected to the assistant prosecutor’s writing on the placard. The trial court stated,
“It’s too late.” Continuing with his argument, the assistant prosecutor then threw the
placard across the room and onto the floor. Defense counsel again objected. The
trial court instructed the jury to disregard the prosecutor’s conduct. The assistant
prosecutor apologized for his conduct and immediately concluded his argument.
{¶63} After the trial court had instructed the jury, but before it had retired
to deliberate, defense counsel moved for a mistrial at a sidebar conference, arguing
the trial court’s instruction had not cured the prejudice from the prosecutor’s
conduct. Defense counsel also asked the trial court to voir dire the jury. Following
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OHIO FIRST DISTRICT COURT OF APPEALS
argument by defense counsel and the state, the trial court denied both motions
stating:
Okay. Well, I think it was a little bit over the top, but not in a way that
I think it prejudices the jury. I think we have citizens that are going to
be capable of putting the evidence in context. They’ve heard a lot of
evidence and I think that by the time there was an objection to writing
on it he had already done it, and I don’t think there was any prejudice.
* * * Well the placard itself is argument. I think that the assistant
prosecutor is correct that it is a fair statement. The only thing that I
think is objectionable is perhaps you wanted to use that in your next
case and now you can’t. But as far as it being improper for him to
write on it, I don’t believe it was improper. * * * I don’t think it is
necessary to voir dire the jury. I gave them a cautionary instruction. I
don’t think any snickering came from the jury. We’ve got a lot of
people in the gallery here. I don’t think that it was inflammatory. I
mean, I observed it, and I think it was in the passion of the moment
that Mr. Leon did that, and I don’t think that it’s going to be taken by
the jury as being something that indicates that the defendant is guilty
if they see that the evidence doesn’t support it.
{¶64} We find and the state agrees that while the assistant prosecutor’s
conduct was arguably inappropriate, his written comment on the placard was a fair
statement about the evidence, and the trial court’s instruction to the jury was
sufficient to cure any prejudice that may have arisen as a result of the prosecutor’s
conduct. Frazier, moreover, has not demonstrated that the prosecutor’s conduct
denied him a fair trial such that the trial court abused its discretion in denying the
motion for a mistrial where the jury actually acquitted Frazier of the aggravated-
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OHIO FIRST DISTRICT COURT OF APPEALS
murder count relating to Kyila, and the trial court’s decision to deny the mistrial
motion exhibited a sound reasoning process.
{¶65} Although Frazier argues this court should view the assistant
prosecutor’s conduct in writing on and throwing the placard together with a number
of statements the assistant prosecutor made during closing argument, we decline to
do so because Frazier did not object to any of those statements, and they did not
form the basis of his motion for a mistrial. We, therefore, overrule the fifth
assignment of error.
Cumulative Error
{¶66} In his sixth assignment of error, Frazier argues the alleged errors
assigned on appeal, even if individually harmless, had the cumulative effect of denying
him a fair trial. In State v. DeMarco, 31 Ohio St.3d 191, 197, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus, the Ohio Supreme Court held that “[a]lthough violations
of the Rules of Evidence during trial, singularly, may not rise to the level of prejudicial
error, a conviction will be reversed where the cumulative effect of the errors deprives a
defendant of the constitutional right to a fair trial.” Given that we have not found
multiple instances of harmless error that denied Frazier a fair trial, we find the doctrine
inapplicable. We, therefore, overrule the sixth assignment of error.
Journal Entries
{¶67} In his seventh assignment of error, Frazier argues the trial court erred
by failing to journalize an entry discharging the jury, following the first mistrial, and
by failing to incorporate its statutory sentencing findings for consecutive sentences
in the sentencing entry.
{¶68} We first address Frazier’s argument that the trial court erred by
failing to note the discharge of the jury, following the first mistrial, on the journal as
required by R.C. 2945.36.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶69} Frazier cites to State v. Syslo, 11th Dist. Portage No. 658, 1976 Ohio
App. LEXIS 6718, *3 (Apr. 19, 1976), where the Eleventh District Court of Appeals
held that the trial court’s failure to comply with R.C. 2945.36, by “fil[ing] a journal
entry setting forth one of the statutory grounds for discharging a jury” exonerated
the defendant “from the liability of further answering to the indictment and it was
prejudicial error for the trial court to overrule the defendant’s motion for discharge
on the grounds of double jeopardy.”
{¶70} But as the state points out, the Syslo case has not been cited by the
Eleventh District, or any other appellate district, for this proposition. Instead, other
appellate districts have applied a harmless-error analysis, where the trial court’s reasons
for ordering the mistrial, although not contained within a judgment entry of the court,
are apparent from the record. See State v. Morgan, 129 Ohio App.3d 838, 842, 719
N.E.2d 102 (8th Dist.1998); State v. Workman, 60 Ohio App.2d 204, 209, 396 N.E.2d
777 (3d Dist.1977); State v. Bell, 12th Dist. Butler No. CA99-07-122, 2001 Ohio App.
LEXIS 1915, *52-55 (Apr. 30, 2001).
{¶71} Here, the record reflects that Frazier was injured during the first trial
when a female spectator stomped on Frazier’s head with a high-heeled boot. Frazier
sustained a concussion, and suffered dizziness, headache and memory loss. Shortly
thereafter, defense counsel moved for a mistrial, stating that Frazier’s medical condition
impeded his ability to assist them in his defense. They also asked the court to order a
competency evaluation. The state agreed that under the circumstances, a mistrial was
warranted. The trial court granted the motion for a mistrial and ordered that Frazier’s
competency be evaluated. The trial court told Frazier’s counsel and the assistant
prosecuting attorney that once it had obtained the competency evaluation, it would
schedule a court appearance to set another trial date.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶72} Here, any error in the trial court’s failure to journalize an entry stating its
reasons for discharging the jury is harmless. The record reflects that Frazier’s first trial
ended with a mistrial, which was declared at the request of defense counsel and with the
concurrence of the state, and that Frazier was retried without objection. Thus, Frazier
cannot demonstrate any prejudice from the trial court’s failure to comply with R.C.
2945.36. See Bell at *52-54. As a result, we find his first argument meritless.
{¶73} We do find merit, however, in Frazier’s next argument, regarding the
trial court’s failure to include the consecutive-sentencing findings in the sentencing
entry. In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
syllabus, the Ohio Supreme Court held that if a trial court imposes consecutive
sentences, it must not only announce the requisite consecutive-sentencing findings
at the sentencing hearing, but it must also incorporate those findings into the
sentencing entry.
{¶74} The record reflects that the trial court stated the required findings for
consecutive sentences during the sentencing hearing and it journalized a sentencing-
findings worksheet that included these findings. But the trial court did not
incorporate its consecutive-sentencing findings into the sentencing entry. We,
therefore, remand the matter, so that the trial court can correct this clerical mistake
by a nunc pro tunc entry. See Bonnell at ¶ 30; State v. Davis, 1st Dist. Hamilton No.
C-140351, 2015-Ohio-775, ¶ 7-10. We sustain in part and overrule in part the seventh
assignment of error, and we affirm the trial court’s judgment in all other respects.
Judgment affirmed and cause remanded.
HENDON, P.J., and STAUTBERG, J., concur.
Please note:
The court has recorded its own entry this date.
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