State v. Jones , 2018 Ohio 4089 ( 2018 )

[Cite as State v. Jones, 2018-Ohio-4089.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
KALEONTE A. JONES : Case No. CT2017-0072
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CT2017-0072
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 02, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ERIC J. ALLEN
Prosecuting Attorney 4605 Morse Road
By: GERALD V. ANDERSON, II Suite 201
Assistant Prosecuting Attorney Gahanna, OH 43230
27 North Fifth Street
P. O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2017-0072 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Kaleonte A. Jones appeals the sentence of conviction
and sentence of the Court of Common Pleas of Muskingum County, Ohio. Plaintiff-
Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 17, 2015 a shooting occurred on Corwin Avenue in
Zanesville, Ohio. At the scene, police recovered two .40 caliber shell casings. The
following day, an 11-year-old girl found a loaded Smith & Wesson firearm in a sandbox
about 150 feet from where the shooting took place. The shell casings found at the scene
were later confirmed to have been shot from the Smith & Wesson. Further investigation
revealed appellant and a co-defendant were involved in the shooting and that the weapon
belonged to appellant. Appellant confessed to the crime and his DNA was found on the
trigger of the gun.
{¶ 3} In November 2016, appellant was indicted on one count each of attempted
murder in violation of R.C. 2923.02(A) and R.C. 2903.02(A), felonious assault in violation
of R.C. 2903.11(A)(2), and tampering with evidence in violation of R.C. 2921.12(A)(1).
Each of these charges included a firearm specification and a gang specification. Appellant
was further charged with one count of participating in a criminal gang in violation of R.C.
2923.42(A) and one count of having weapons under disability in violation of R.C.
2923.12(A)(2).
{¶ 4} In January 2017, per a plea agreement with the state, appellant entered
guilty pleas to the charges of felonious assault, having a weapon under disability and one
firearm specification.
Muskingum County, Case No. CT2017-0072 3
{¶ 5} In June 2017, the state filed a motion to set aside appellant's plea and
reinstate the charges as appellant failed to cooperate with the state per their plea
agreement. The trial court granted the motion and the matter proceeded to a jury trial on
August 15, 2017. During trial, Detective Smittle testified regarding street gangs in the
Columbus Ohio area. He testified that during an interview with appellant, he asked
appellant if he was a member of one particular area gang "Bomb Squad." Appellant
corrected the detective, advising him he was a member of "Banger Squad." Appellant did
not object to any of this testimony.
{¶ 6} During Smittle's testimony photos were admitted of known gang members,
appellant flashing gang hand signs and holding guns. Appellant objected on the basis
that photos were cumulative. The trial court directed the state to limit the number of photos
shown of any one individual. Appellant did not further object.
{¶ 7} After hearing all the evidence and deliberating, the jury returned a verdict of
guilty of attempted murder, felonious assault, and tampering with evidence, all with the
attendant firearm specifications, and having a weapon under disability. The jury acquitted
appellant of participating in a criminal gang as well as each gang specification. He was
subsequently sentenced to an aggregate total of 18 years incarceration.
{¶ 8} This appeal followed, and the matter is now before this court for
consideration. Appellant raises one assignment of error:
I
{¶ 9} "IT IS STRUCTURAL ERROR TO DEPRIVE THE APPELLANT HIS
PRESUMPTION OF INNOCENCE BY ALLOWING A WITNESS TO TESTIFY
REGARDING PRIOR CONVICTIONS."
Muskingum County, Case No. CT2017-0072 4
{¶ 10} In his sole assignment of error, appellant takes issue with a portion
Detective Smittle's testimony and photographs introduced by the state during the
detective's testimony. First appellant cites the portion of Detective Smittle's testimony
wherein he testified that appellant told the detective he was a member of "Banger Squad."
Second, appellant appears to argue an excessive number of photos were presented of
appellant flashing gang signs and holding guns. Appellant argues the detective's
testimony, evidence of past convictions, and presentation of the photos violated his
presumption of innocence, and amounts to structural error. We disagree.
{¶ 11} First, as for the appropriate standard of review, the Supreme Court
of Ohio stated in State v. Wamsley, 117 Ohio St. 3d 388, 391-92, 2008-Ohio-1195, 884
N.E.2d 45:
We have previously held that “ ‘if the defendant had counsel and was
tried by an impartial adjudicator, there is a strong presumption that
any other constitutiona[l] errors that may have occurred are subject
to harmless-error analysis.’ ” State v. Hill (2001), 92 Ohio St. 3d 191,
197, 749 N.E.2d 274, quoting Rose v. Clark (1986), 478 U.S. 570,
579, 106 S. Ct. 3101, 92 L. Ed. 2d 460. Moreover, as we stated in
State v. Perry, 101 Ohio St. 3d 118, 2004-Ohio-297, 802 N.E.2d 643,
“[c]onsistent with the presumption that errors are not ‘structural,’ the
United States Supreme Court ‘ha[s] found an error to be “structural,”
and thus subject to automatic reversal, only in a “very limited class
of cases.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct.
Muskingum County, Case No. CT2017-0072 5
1544, 137 L. Ed. 2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S.
335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (complete denial of
counsel)); Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749
(1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106
S. Ct. 617, 88 L. Ed. 2d 598 (1986) (racial discrimination in selection
of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79
L. Ed. 2d 122 (1984) (denial of self-representation at trial); Waller v.
Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (denial
of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078,
124 L. Ed. 2d 182 (1993) (defective reasonable-doubt instruction).’ ”
Perry, 101 Ohio St. 3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 18,
quoting Neder v. United States (1999), 527 U.S. 1, 8, 119 S. Ct. 1827,
144 L. Ed. 2d 35.
{¶ 12} A “structural error” analysis only supplies an automatic finding of prejudice
for preserved errors thereby avoiding harmless error analysis. It does not supply an
automatic finding of plain error for unpreserved errors. Wamsley supra citing State v.
Rector, Carroll App. No. 01AP-758, 2003-Ohio-5438. The Supreme Court of Ohio
addressed when structural error analysis should be used in State v. Perry, 101 Ohio St. 3d
118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 23:
We emphasize that both this court and the United States Supreme
Court have cautioned against applying a structural-error analysis
Muskingum County, Case No. CT2017-0072 6
where, as here, the case would be otherwise governed by Crim.R.
52(B) because the defendant did not raise the error in the trial court.
See Hill, 92 Ohio St. 3d at 199, 749 N.E.2d 274; Johnson, 520 U.S.
at 466, 117 S. Ct. 1544, 137 L. Ed. 2d 718. This caution is born of
sound policy. For to hold that an error is structural even when the
defendant does not bring the error to the attention of the trial court
would be to encourage defendants to remain silent at trial only later
to raise the error on appeal where the conviction would be
automatically reversed. We believe that our holdings should foster
rather than thwart judicial economy by providing incentives (and not
disincentives) for the defendant to raise all errors in the trial court-
where, in many cases, such errors can be easily corrected.
{¶ 13} Here, appellant did not object to Detective Smittle's testimony regarding
gang affiliation. He therefore bears the burden of demonstrating that a plain error affected
his substantial rights and, in addition that the error seriously affected the fairness, integrity
or public reputation of judicial proceedings. United States v. Olano, 507 U.S. at 725,734,
113 S. Ct. 1770 (1993); State v. Perry, 101 Ohio St. 3d 118, 120, 802 N.E.2d 643 (2004).
Even if the defendant satisfies this burden, an appellate court has discretion to disregard
the error. State v. Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d 1240 (2002); State v. Long,
53 Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus; Perry, supra,
at 118, 802 N.E.2d at 646.
Muskingum County, Case No. CT2017-0072 7
{¶ 14} As for the photos, the admission or exclusion of evidence rests within the
sound discretion of the trial court. In order to find an abuse of discretion, we must
determine the trial court's decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450
N.E.2d 1140 (1983).
{¶ 15} Relevant evidence is “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. Generally, all relevant
evidence is admissible, and irrelevant evidence is inadmissible. Evid.R. 402.
{¶ 16} Otherwise relevant evidence is inadmissible, however, "if its probative value
is substantially outweighed by the danger of unfair prejudice, of confusion of the issues,
or of misleading the jury." Evid.R. 403(A). A trial court has broad discretion to determine
whether relevant evidence must be excluded in accordance with Evid.R. 403(A) because
"the exclusion of relevant evidence under Evid.R. 403(A) is even more of a judgment call
than determining whether the evidence has logical relevance in the first place." State v.
Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 40.
{¶ 17} As to Detective Smittle's testimony that appellant admitted to being a
member of "Banger Squad," appellant failed to object, and has therefore waived all but
plain error. Appellant was charged with participating in a criminal gang and several gang
specifications. The detective's testimony was therefore relevant to prove the charge as
well as the gang specifications. Appellant has failed to raise or argue plain error. Even if
he had, however, the argument would fail as appellant cannot show prejudice – he was
Muskingum County, Case No. CT2017-0072 8
acquitted of participation in a criminal gang, as well as each gang specification. We
therefore find no error, plain or otherwise.
{¶ 18} As to the photos, appellant did object to the cumulative nature. In response,
the trial court directed the state to limit the number of photos it introduced, and the state
complied. Transcript of Trial (T) 196-197. Appellant did not further object during Detective
Smittle's testimony, nor at the conclusion of the state's case when the state moved to
admit the photos into evidence. T 362. During his testimony, the detective identified in the
photos appellant with known gang members, appellant flashing gang hand signs, and
appellant's gang tattoos. T 186-195, 197-198. The photos, like appellant's admission to
gang affiliation, were relevant to the charge of participation in a criminal gang as well as
the gang specifications. We therefore find no abuse of discretion in the admission of the
photographs.
{¶ 19} Finally, we note appellant's brief contains a section titled "Evidence of
Defendant's Past Convictions." Under this section appellant baldly states "this testimony"
put at issue appellant's past convictions and removed the presumption of innocence.
Appellant's brief at 6. Appellant provides no transcript reference for this alleged testimony,
nor does he indicate what the alleged testimony consisted of. It is impossible to determine
whether appellant is referring to the previously discussed gang affiliation statement of
Detective Smittle, the photographs, or something else. Appellant has thereby failed to
comply with App.R. 16(D) which states:
(D) References in Briefs to the Record. References in the briefs to
parts of the record shall be to the pages of the parts of the record
Muskingum County, Case No. CT2017-0072 9
involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p.
231. Intelligible abbreviations may be used. If reference is made to
evidence, the admissibility of which is in controversy, reference shall
be made to the pages of the transcript at which the evidence was
identified, offered, and received or rejected.
{¶ 20} “It is the duty of the appellant, not this court, to demonstrate [his] assigned
error through an argument that is supported by citations to legal authority and facts in the
record.” State v. Taylor, 9th Dist. Medina No. 2783-M, 1999WL61619 at *3 (Feb. 9, 1999),
App.R. 16(A)(7). “It is not the function of this court to construct a foundation for [an
appellant's] claims; failure to comply with the rules governing practice in the appellate
courts is a tactic which is ordinarily fatal.” Kremer v. Cox, 114 Ohio App. 3d 41, 60, 682
N.E.2d 1006 (1996).
{¶ 21} The federal courts have discussed the problems resulting when a party
omits important information in its appellate brief noting; “[c]ourts are entitled to assistance
from counsel, and an invitation to search without guidance is no more useful than a
litigant's request to a district court at the summary judgment stage to paw through the
assembled discovery material. ‘Judges are not like pigs, hunting for truffles buried in the
record.’ ” Albrechtson v. Bd. Of Regents (C.A.7, 2002), 309 F.2d 433, quoting United
State v. Dunkel (C.A.7, 1991), 927, 955, 956. The Supreme Court of Ohio, in State ex rel.
Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108
Ohio St. 3d 288, 843 N.E.2d 174, 2006-Ohio-903, at ¶ 13; has also noted:
Muskingum County, Case No. CT2017-0072 10
The omission of page references to the relevant portions of the
record that support the brief's factual assertions is most troubling.
Appellate attorneys should not expect the court "to peruse the record
without the help of pinpoint citations" to the record. Day v. N. Indiana
Pub. Serv. Corp. (C.A.7, 1999), 164 F.3d 382, 384 (imposing a public
reprimand and a $500 fine on an attorney for repeated
noncompliance with court rules). In the absence of the page
references that S.Ct. Prac.R. VI(2)(B)(3) requires, the court is forced
to spend much more time hunting through the record to confirm even
the most minor factual details to decide the case and prepare an
opinion. That burden ought to fall on the parties rather than the court,
for the parties are presumably familiar with the record and should be
able to readily identify in their briefs where each relevant fact can be
verified.
{¶ 22} Because appellant's argument regarding "prior convictions" fails in this
regard, the alleged error is overruled.
Muskingum County, Case No. CT2017-0072 11
{¶ 23} The judgment of conviction and sentence of the Court of Common Pleas of
Muskingum County is affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Baldwin, J. concur.
EEW/rw 910