State v. Buck , 2017 Ohio 273 ( 2017 )

[Cite as State v. Buck, 2017-Ohio-273.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27597
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ROXANNE BUCK COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2014 03 0842
DECISION AND JOURNAL ENTRY
Dated: January 25, 2017
SCHAFER, Judge.
{¶1} Defendant-Appellant, Roxanne Buck, appeals the judgment of the Summit
County Court of Common Pleas convicting her of murder and tampering with evidence. For the
reasons set forth below, we affirm.
I.
{¶2} On Saturday, March 15, 2014, law enforcement discovered the slain body of 21-
year-old Michelle Johnson hidden in a shed behind her home in Stow, Ohio. The Summit
County Grand Jury subsequently indicted Buck, Michelle Johnson’s roommate, on one count of
murder in violation of R.C. 2903.02(A), a special felony, and one count of tampering with
evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree. Buck pleaded not
guilty to the charges and the matter proceeded to a jury trial.
{¶3} At the conclusion of the State’s case-in-chief, Buck made a Crim.R. 29 motion for
judgment of acquittal, which the trial court denied. The jury ultimately found Buck guilty of
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both counts contained in the indictment. The trial court sentenced Buck to 18 years to life in
prison.
{¶4} Buck filed this timely appeal, raising eight assignments of error for this Court’s
review.
II.
Assignment of Error I
Buck’s constitutional right to a speedy trial was violated when the trial date
was unreasonably continued outside the statutory timeframe. Accordingly,
the counts against her must be dismissed.
{¶5} In her first assignment of error, Buck argues that the trial court erred by denying
her motion to dismiss the charges against her. Specifically, Buck contends that her right to a
speedy trial was violated since it took the State nearly seven months to bring her to trial. We
disagree.
{¶6} A trial court’s determination of speedy trial issues presents a mixed question of
law and fact. State v. Fields, 9th Dist. Wayne No. 12CA0045, 2013–Ohio–4970, ¶ 8. “When
reviewing an appellant’s claim that he was denied his right to a speedy trial, this Court applies
the de novo standard of review to questions of law and the clearly erroneous standard of review
to questions of fact.” Id., quoting State v. Downing, 9th Dist. Summit No. 22012, 2004–Ohio–
5952, ¶ 36.
{¶7} “The right of an accused to a speedy trial is recognized by the Constitutions of
both the United States and the State of Ohio.” State v. Pachay, 64 Ohio St. 2d 218, 219 (1980).
“The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational effort to enforce
the constitutional right to a public speedy trial of an accused charged with the commission of a
felony or a misdemeanor * * *.” Id. at syllabus. Accordingly, “for purposes of bringing an
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accused to trial, the statutory speedy trial provisions of R.C. 2945.71 et seq. and the
constitutional guarantees found in the United States and Ohio Constitutions are coextensive.”
State v. O’Brien, 34 Ohio St. 3d 7, 9 (1987).
{¶8} R.C. 2945.71(C)(2) provides that “[a] person against whom a charge of felony is
pending ... [s]hall be brought to trial within two hundred seventy days after the person’s arrest.”
“[E]ach day during which the accused is held in jail in lieu of bail on the pending charge shall be
counted as three days.” R.C. 2945.71(E). Thus, if the accused is held in jail in lieu of bail, the
time within which the trial must be held is 90 days. See id. When calculating speedy trial time,
the day of arrest is not to be counted. State v. Friedhof, 9th Dist. Medina No. 2505-M, 1996 WL
385612, *3 (July 10, 1996), citing State v. Steiner, 71 Ohio App. 3d 249, 250-251 (9th
Dist.1991); See also Crim.R. 45(A). “Upon motion made at or prior to the commencement of
trial, a person charged with an offense shall be discharged if he is not brought to trial within the
time required by [R.C. 2945.71].” R.C. 2945.73(B).
{¶9} Additionally, an accused may waive his rights to a speedy trial, so long as the
waiver is knowingly and voluntarily made. O’Brien at 9. Such a waiver must be in writing or
expressly made in open court on the record. State v. King, 70 Ohio St. 3d 158 (1994), at syllabus.
Furthermore, a waiver may be limited or unlimited in duration. State v. Bray, 9th Dist. Lorain
No. 03CA008241, 2004-Ohio-1067, ¶ 8, citing O’Brien at paragraph two of the syllabus.
{¶10} In the present case, Buck was arrested on March 20, 2014. As such, the speedy
trial clock began to run in this matter on March 21, 2014. It is undisputed that Buck remained
incarcerated until trial. On July 3, 2014, Buck voluntarily waived her right to have her case tried
within the time period provided for in R.C. 2945.71 et seq., and consented to a continuance of
her case until September 15, 2014. On August 22, 2014, the State moved to continue the trial
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date due to the unavailability of a material witness. On August 28, 2014, Buck revoked her time
waiver and demanded a speedy trial. The trial court granted the State’s motion for continuance
over defense counsel’s objection and rescheduled the trial date for October 6, 2014. On the
morning of trial, defense counsel filed a motion to dismiss for lack of a speedy trial, which the
trial court denied.
{¶11} After reviewing the record, we determine that Buck’s speedy trial argument is
without merit. Although Buck did sign a limited speedy trial waiver in which she made
handwritten revisions limiting the continuance until September 15, 2014, Buck did not reference
a starting point for the waiver. “When a waiver fails to include a specific date as the starting
point for the tolling of time, the waiver is deemed to be effective from the date of arrest.” State
v. Matland, 7th Dist. Mahoning No. 09-MA-115, 2010-Ohio-6585, ¶ 47, citing Bray at ¶ 8-9.
Thus, Buck’s waiver constitutes “a waiver of all time preceding the execution of the waiver and
until the date of the continuance,” which here would be from her arrest until September 15, 2014.
State v. Baugh, 9th Dist. Lorain No. 95CA006124, 1996 WL 37726, *2 (Jan. 31, 1996). As
such, the statutory speedy trial time did not begin to run against the State until September 16,
2014. Buck was brought to trial on October 6, 2014, less than one month later. Accordingly, we
conclude that the trial court did not err by denying Buck’s motion to dismiss for lack of a speedy
trial.
{¶12} Buck’s first assignment of error is overruled.
Assignment of Error II
Buck did not knowingly, intelligently and voluntarily waive her right to a
speedy trial.
{¶13} In her second assignment of error, Buck argues that she did not knowingly,
intelligently, and voluntarily waive her right to a speedy trial. We disagree.
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{¶14} A criminal defendant may waive his right to a speedy trial if it is knowingly,
voluntarily and intelligently made. State v. Adams, 43 Ohio St. 3d 67, 69, (1989). The waiver
must also be expressed in writing or made in open court on the record. King, 70 Ohio St.3d at
syllabus.
{¶15} Here, Buck signed a time waiver on July 3, 2014, which expressly stated that she
was knowingly and voluntarily waiving her right to have her case tried within the time period
provided for in R.C. 2945.71 and consented to have her case continued until September 15, 2014.
Buck argues on appeal that her waiver was not knowingly, intelligently, and voluntarily given as
she was unaware that the waiver related back to the date of her arrest instead of the date that she
signed the waiver. However, because the transcript of the pretrial proceeding where Buck
waived her speedy trial rights on the record has not been filed with this Court, we must presume
regularity and the validity of the time waiver. See N. Olmstead v. Rock, 8th Dist. Cuyahoga No.
99333, 2013-Ohio-3152, ¶ 21.
{¶16} Buck’s second assignment of error is overruled.
Assignment of Error III
Buck’s constitutional rights were violated as she received ineffective
assistance of counsel during the trial court proceedings and from her original
appellate counsel.
{¶17} In her third assignment of error, Buck argues that she received ineffective
assistance of counsel from both trial and appellate counsel. Specifically, Buck contends that trial
counsel was ineffective by failing to advise her that the speedy trial time waiver related back to
the date of arrest, March 20, 2014, instead of July 3, 2014, when she signed the waiver. With
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regard to appellate counsel, Buck argues that her first appellate lawyer1 was ineffective by failing
to ensure that the transcript of the pretrial proceeding where Buck waived her right to a speedy
trial was included in the appellate record. We disagree with both of Buck’s arguments.
{¶18} “On the issue of counsel’s ineffectiveness, [Buck, as the Appellant,] has the
burden of proof because in Ohio, a properly licensed attorney is presumed competent.” State v.
Gondor, 112 Ohio St. 3d 377, 2006–Ohio–6679, ¶ 62. To prove ineffective assistance of counsel,
Buck must establish that (1) her counsel’s performance was deficient, and (2) “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To
demonstrate prejudice, an appellant must prove that “there exists a reasonable probability that,
were it not for counsel’s [deficient performance], the result of the trial would have been
different.” State v. Bradley, 42 Ohio St. 3d 136 (1989), paragraph three of the syllabus. The
same standard applies to an ineffective assistance claim made against appellate counsel. State v.
Rojas, 64 Ohio St. 3d 131, 141 (1992). This Court need not address both prongs of Strickland if
an appellant fails to prove either one. State v. Ray, 9th Dist. Summit No. 22459, 2005–Ohio–
4941, ¶ 10.
{¶19} With regard to Buck’s ineffective assistance of trial counsel argument, we
reiterate that since the transcript of the pretrial proceeding where Buck waived her right to a
speedy trial was not included in the appellate record, this Court must presume regularity in the
1
Buck’s initial appellate counsel filed the notice of appeal on November 25, 2014. The
record was filed with this Court on March 9, 2015. On April 1, 2015, Buck’s appellate counsel
provided notice that he was taking a 20-day extension to file the merit brief. However, prior to
filing the merit brief, Buck’s appellate counsel filed a motion to withdraw, which this Court
ultimately granted. See State v. Buck, 9th Dist. Summit No. 27597 (Aug. 26, 2015). On
September 22, 2015, Buck’s second appellate counsel filed a notice of appearance along with a
motion for an extension of time to file a merit brief, which this Court granted. Buck’s new
appellate counsel filed the merit brief on November 2, 2015, wherein she raises an ineffective
assistance of appellate counsel argument as it pertains to Buck’s initial appellate counsel.
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trial court’s proceedings. See State v. Jackson, 9th Dist. Lorain No. 95CA006152, 1995 WL
734029, *2 (Dec. 13, 1995) (presuming regularity in the trial court’s proceedings and overruling
appellant’s ineffective assistance of trial counsel argument where appellant did not provide this
Court with a transcript of the hearing on his motion for post-conviction relief), citing Wozniak v.
Wozniak, 90 Ohio App. 3d 400, 409 (9th Dist.1993). With regard to Buck’s ineffective assistance
of appellate counsel argument, we note that App.R. 26(B) is the appropriate remedy for asserting
a claim for ineffective assistance of appellate counsel. State ex rel. Collins v. Saffold, 8th Dist.
Cuyahoga No. 97494, 2012-Ohio-278, ¶ 6.
{¶20} Accordingly, Buck’s third assignment of error is overruled to the extent that we
presume regularity in the trial court proceedings and this Court cannot address her ineffective
assistance of appellate counsel argument at this juncture.
Assignment of Error IV
Buck’s constitutional right to due process was violated and the trial court
committed reversible error when the prosecutor admitted evidence that’s
probative value was substantially outweighed by the prejudicial impact.
{¶21} In her fourth assignment of error, Buck contends that the trial court erred by
denying her motion for a mistrial following the State’s presentation of a “gruesome and
repetitive” PowerPoint presentation containing photographs of the victim’s autopsy. We
disagree.
{¶22} “‘Under Evid.R. 403 * * *, the admission of photographs is left to the sound
discretion of the trial court.’” State v. Maurer, 15 Ohio St. 3d 239, 264 (1984). Likewise, a trial
court’s ruling on a motion for mistrial will not be reversed absent an abuse of discretion. State v.
Witcher, 9th Dist. Summit No. 26111, 2012-Ohio-4141, ¶ 32. “A trial court may reject a
photograph, otherwise admissible, due to its inflammatory nature, if the prejudicial effect
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outweighs its probative value.” Maurer at 264-265; Evid.R. 403. “However, the mere fact that a
photograph is gruesome or horrendous is not sufficient to render it per se inadmissible.” Id. at
265, quoting State v. Woodards, 6 Ohio St. 2d 14, 25 (1966). “Autopsy photographs are
generally admissible to help the jury appreciate the nature of the crimes, to illustrate the
coroner’s or other witnesses’ testimony by portraying the wounds, to help prove the defendant’s
intent, and to show the lack of accident or mistake.” State v. Costell, 3d Dist. Union No. 14-15-
11, 2016-Ohio-3386, ¶ 142, citing State v. Shakoor, 7th Dist. Mahoning No. 01CA121, 2003–
Ohio–5140, ¶ 73, citing State v. Gross, 97 Ohio St. 3d 121, 2002–Ohio–5524, ¶ 52.
{¶23} Here, we conclude that the trial court did not abuse its discretion by denying
Buck’s motion for a mistrial. Although some of the photographs in question are graphic, we
determine that these photographs are more probative than prejudicial in at least three respects.
First, the images aided the chief medical examiner during her testimony and allowed the jury to
better understand the medical examiner’s testimony. The chief medical examiner, who
performed the autopsy of Michelle Johnson, testified that in preparation for her testimony, she
created a PowerPoint presentation to help assist the jury while she discussed her findings,
diagnoses, and opinions. The images in dispute were contained in this PowerPoint presentation
and shown to the jury while the medical examiner simultaneously discussed each photograph.
The medical examiner testified that after conducting the autopsy, her findings and diagnoses
“were sharp force injury to the neck which included an incised and stab wound injury to the left
jugular vein and anterior neck, which is the front of the neck.” She further stated that there were
also “multiple incised and stab wounds to the neck and multiple blunt and sharp * * * force
injuries on other areas of the body, including the head, the torso, the arms and hands, and a
hematoma or bruise of the scalp.” The photographs within the PowerPoint presentation depicted
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the victim’s wounds, primarily to the neck, but also to the scalp, back, and hands. Secondly, the
photographs helped prove the murderer’s intent. See State v. Ahmed, 103 Ohio St. 3d 27, 2004-
Ohio-4190, ¶ 99 (explaining that the trial court did not abuse its discretion by allowing the State
to show “gruesome” autopsy slides where the slides illustrated the coroner’s testimony and
helped prove the killer’s intent). The medical examiner testified that the victim sustained 32 stab
and incised wounds, thus demonstrating that the victim was purposely killed. Lastly, the State
explained that it showed the photographs, in part, to prove the identity of the killer, as the stab
wounds to the victim could help explain why Buck had cuts on her hands in the immediate wake
of the murder.
{¶24} For these reasons, we determine that the trial court did not err by denying Buck’s
motion for a mistrial. Our decision on this matter is further buttressed by the trial court’s
decision to review the PowerPoint during a brief break in the proceedings and delete a
photograph on the last slide of the presentation. Lastly, we note that while the trial court allowed
the PowerPoint presentation to be admitted into evidence, it did not allow the presentation to be
given to the jury during their deliberations.
{¶25} For the foregoing reasons, Buck’s fourth assignment of error is overruled.
Assignment of Error V
The trial court erred in denying [Buck’s] motion for a mistrial when the
prosecutor made improper closing arguments.
{¶26} In her fifth assignment of error, Buck argues that the trial court erred by denying
her motion for a mistrial because the prosecutor made improper comments that rose to the level
of prosecutorial misconduct. During the State’s rebuttal argument, the prosecutor encouraged
the jury to recognize that Buck’s admission to the tampering with evidence charge was merely a
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ploy to convince the jury that she was being truthful about not murdering her roommate. Buck
contends that the prosecutor’s remarks prejudicially affected her substantial rights. We disagree.
{¶27} This Court reviews a trial court’s denial of a motion for mistrial for an abuse of
discretion. See State v. Halsell, 9th Dist. Summit No. 24464, 2009–Ohio–4166, ¶ 6. An abuse
of discretion is more than an error of judgment; it means that the trial court was unreasonable,
arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219
(1983). The prosecution is normally entitled to a certain amount of latitude during closing
argument. State v. Smith, 14 Ohio St. 3d 13, 13 (1984). “The test regarding prosecutorial
misconduct in closing arguments is whether the remarks were improper and, if so, whether they
prejudicially affected substantial rights of the defendant.” Id. at 14. “If the prosecutor’s
comments were improper, ‘it must be clear beyond a reasonable doubt that, absent the
prosecutor’s comments, the jury would have found the defendant guilty.’” State v. Jones, 9th
Dist. Summit No. 24776, 2010–Ohio–351, ¶ 19, quoting Smith at 15. The touchstone of the
analysis “is the fairness of the trial, not the culpability of the prosecutor.” State v. Lott, 51 Ohio
St.3d 160, 166 (1990), quoting Smith v. Phillips, 455 U.S. 209, 219 (1982).
{¶28} After reviewing the entire record, we determine that the prosecutor’s comments
did not warrant a mistrial. Defense counsel’s sole basis for asking for a mistrial was “when you
start arguing the levels of offense, * * * that’s an improper argument[.]” When reviewing the
record of the entire trial, however, we cannot say that the prosecutor’s remarks denied Buck of a
fair trial to the point that the jury would have acquitted her but for those remarks, especially
given the copious amounts of evidence linking Buck to the murder of Michelle Johnson.
{¶29} Buck also argues that the prosecutor committed an act of misconduct by
repeatedly referring to her testimony as a lie. However, Buck did not object on the basis at trial
11
and has failed to develop a plain error argument on appeal. Indeed, her appellate brief does not
mention plain error. Due to this failure to raise a plain error argument, we decline to sua sponte
fashion one and then address it. See State v. McCrae, 9th Dist. Summit No. 27387, 2015–Ohio–
1803, ¶ 8; see also App.R. 16(A)(7).
{¶30} Buck’s fifth assignment of error is overruled.
Assignment of Error VI
The trial court erred in denying [Buck’s] motion in limine regarding the
bottle of bleach and the BCI testing completed thereupon as the evidence was
not provided to defense counsel in a timely manner and the eleventh hour
disclosure violated Crim.R. 16(K).
{¶31} In her sixth assignment of error, Buck argues that the trial court erred by denying
her motion in limine on the basis that the State failed to comply with the requirements of Crim.R.
16(K) as it pertained to its intent to admit certain evidence at trial. Buck contends that she was
prejudiced by the State’s failure to timely inform her of its intent to admit both the bleach bottle
and the scientific test results of the bleach bottle at trial. We disagree.
{¶32} Crim.R. 16 governs discovery during criminal proceedings. State ex rel.
Steckman v. Jackson, 70 Ohio St. 3d 420, 428 (1994). Trial courts are given much latitude in
supervising pretrial discovery. State v. Edwards, 49 Ohio St. 2d 31, 42 (1976), vacated on other
grounds, 438 U.S. 911 (1978). A trial court’s supervisory decision will not be reversed on
appeal absent an abuse of discretion. State v. Parson, 6 Ohio St. 3d 442, 445 (1983).
{¶33} Crim.R. 16(K) provides:
Expert Witnesses; Reports. An expert witness for either side shall prepare a
written report summarizing the expert witness’s testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the expert’s
qualifications. The written report and summary of qualifications shall be subject
to disclosure under this rule no later than twenty-one days prior to trial, which
period may be modified by the court for good cause shown, which does not
12
prejudice any other party. Failure to disclose the written report to opposing
counsel shall preclude the expert’s testimony at trial.
The purpose of Crim.R. 16(K) “‘is to avoid unfair surprise by providing notice to the defense and
allowing the defense an opportunity to challenge the expert’s findings, analysis, or qualifications,
possibly with the support of an adverse expert who could discredit the opinion after carefully
reviewing the written report.’” State v. Fetty, 11th Dist. Portage No. 2011–P–0091, 2012–Ohio–
6127, ¶ 36, quoting State v. Perry, 11th Dist. Lake No. 2011–L–125, 2012–Ohio–4888, ¶ 55.
“Prosecutorial violations of Crim.R. 16 are reversible only when there is a showing that (1) the
prosecution’s failure to disclose was a willful violation of the rule, (2) foreknowledge of the
information would have benefited the accused in the preparation of his defense, and (3) the
accused suffered some prejudicial effect.” State v. Proby, 10th Dist. Franklin No. 14AP-1067,
2015-Ohio-3364, ¶ 34, quoting State v. Joseph, 73 Ohio St. 3d 450, 458 (1995); see also State v.
Jackson, 107 Ohio St. 3d 53, 2005–Ohio–5981, ¶ 131.
{¶34} In the present case, Ohio Bureau of Criminal Investigation (BCI) agents
discovered a bottle of bleach in the laundry room on the lower level of the Maplepark Road
residence during their investigation immediately after the victim’s body was discovered. The
bleach bottle appeared to have a “suspected bloodstain” on it. However, the State did not submit
the bleach bottle to BCI for testing until September 8, 2014, roughly one month before the start
of trial. Upon receiving the bleach bottle, BCI took three swabs from suspected bloodstains on
the bottle. BCI subsequently tested those swabs and determined that two of the swabs of
suspected blood revealed no connection to Buck. Testing on the other swab, however, revealed
that Buck could not be excluded as a contributor of the DNA from the suspected blood stain with
a frequency of one in 3,880 unrelated individuals. BCI amended its DNA report to include this
new information, which was then turned over to defense counsel roughly one week before the
13
start of trial. Defense counsel then made an oral motion in limine to exclude all evidence derived
from the bleach bottle on the basis that the amended DNA report was not received within 21
days of trial. The trial court denied the motion. Defense counsel preserved his objection to the
admission of evidence derived from the bleach bottle throughout the course of the trial.
{¶35} After reviewing the record, we conclude that Buck has failed to demonstrate that
she was prejudiced by the State’s tardy disclosure of the DNA analysis of the bleach bottle. As
noted above, two of the swabs from the bleach bottle revealed no connection to Buck. Although
one of the swabs did reveal that Buck could not be excluded as a contributor of the DNA on the
bleach bottle with a frequency of one in 3,880 unrelated individuals, this pales in comparison to
the other DNA evidence that was admitted at trial.
{¶36} For example, the same BCI forensic DNA analyst who tested the swabs taken
from the bleach bottle and testified as to his findings and conclusions also testified that Buck
could not be excluded as the source of the DNA from the swabs of suspected bloodstains taken
from the washing machine, above the bathroom sink, and in the garage. This DNA analyst
further testified that based on the national database provided by the FBI, the expected frequency
of occurrence of the DNA profile from these swabs is one in 1,250,000,000,000,000,000 (one
quintillion, two hundred and fifty quadrillion) unrelated individuals. The DNA analyst further
testified that Buck could not be excluded as a contributor to the DNA from the swab taken from
the victim’s left hand fingernail clippings and the swab of a suspected bloodstain taken from the
handle of a paint can that was found in the laundry room near the bottle of bleach. The analyst
explained that based on the FBI’s national database, the proportion of the population that cannot
be excluded as possible contributors to the mixture of DNA profiles on the swabs from the left
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hand fingernail clippings and the handle of the paint can is one in 751,300 unrelated individuals
and one in 84,320,000 unrelated individuals, respectively.
{¶37} Based on the foregoing, we conclude that Buck has failed to show that she was
prejudiced in light of the other overwhelming DNA evidence that was presented at trial. As
such, we cannot conclude that the trial court erred by denying her motion in limine on the basis
of a Crim.R. 16(K) violation.
{¶38} Buck’s sixth assignment of error is overruled.
Assignment of Error VII
The prosecution presented insufficient evidence to support the jury’s finding
that the defendant was guilty upon count one – murder and the conviction
was also against the manifest weight of the evidence.
{¶39} In her seventh assignment of error, Buck contends that her murder conviction2
was both supported by insufficient evidence and against the manifest weight of the evidence.
We disagree.
{¶40} A sufficiency challenge of a criminal conviction presents a question of law, which
we review de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). In carrying out this
review, our “function * * * is to examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
{¶41} “Circumstantial evidence and direct evidence inherently possess the same
probative value.” Id. at paragraph one of the syllabus. After such an examination and taking the
evidence in the light most favorable to the prosecution, we must decide whether “any rational
trier of fact could have found the essential elements of the crime proven beyond a reasonable
2
Buck’s seventh assignment of error does not contest her tampering with evidence
conviction.
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doubt.” Id. at paragraph two of the syllabus. Although we conduct de novo review when
considering a sufficiency of the evidence challenge, “we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570, C-120751, 2013-Ohio-4775 , ¶ 33.
{¶42} At the outset, we note that although Buck’s appellate brief asserts that her murder
conviction is against the manifest weight of the evidence, she has failed to develop an argument
on this point. See App.R. 16(A)(7). As such, we confine our analysis to Buck’s sufficiency of
the evidence argument.
{¶43} This matter implicates Buck’s murder conviction under R.C. 2903.02(A), which
prohibits a person from “purposely caus[ing] the death of another[.]” “A person acts purposely
when it is his specific intention to cause a certain result, or, when the gist of the offense is a
prohibition against conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is his specific intention to engage in conduct of that nature.” Former R.C.
2901.22(A). Purpose may be proven by circumstantial evidence. State v. Shue, 97 Ohio App. 3d
459, 466 (9th Dist.1994), citing State v. Nicely, 39 Ohio St. 3d 147 (1988).
{¶44} Here, 19 witnesses in total were called to testify on behalf of the State. Diane
Johnson, the victim’s mother, testified that she, her youngest daughter, Michelle, and Buck all
lived together in a house located on Maplepark Road in Stow, Ohio. Johnson testified that she
and Michelle lived together in the upstairs of the house, while Buck lived on the bottom floor of
the house. Because the bottom floor of the house did not contain a formal bedroom, Johnson
testified that she hung a curtain to provide Buck with some privacy. However, Johnson testified
that one would need to walk through Buck’s living area in order to access the backyard, the
laundry room, or the garage.
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{¶45} Additionally, Johnson testified that she drove to West Virginia to visit family on
March 12, 2014. Johnson testified that while she was in West Virginia, she saw that Michelle
had posted a photograph to Facebook, which was dated Friday, March 14, 2014 at 12:06 p.m.
Johnson stated that this was the last contact that she ever had with Michelle. Johnson further
testified that she became concerned about Michelle when, at 8:35 a.m. on Saturday, March 15,
2014, Buck sent her a message on Facebook informing her that she had not seen Michelle since
the previous day. Johnson replied that she would try contacting Michelle to find out where she
was. Johnson testified that she eventually reported Michelle’s absence to the Stow Police
Department after being unable to contact Michelle and learning from Michelle’s boss that she
had not reported to work.
{¶46} Officer Jason Bailey of the Stow Police Department testified that he received a
phone call from Diane Johnson on Saturday, March 15, 2014, reporting her daughter as a
possible missing person. Officer Bailey testified that he went to the Maplepark Road residence
at roughly 6:00 p.m. in an effort to locate Michelle. Officer Bailey testified that he knocked on
the front door of the house, but did not get a response. He then walked around the house and
entered the fenced-in backyard through a gate. Officer Bailey stated that he then looked inside
of a makeshift shed that was on the property and discovered a lifeless human body lying face
down under a blanket, towel, and car tire. The body was later identified as Michelle Johnson.
Officer Bailey stated that he subsequently contacted his supervisor to report a potential homicide
and made efforts to secure the scene, particularly by preserving shoeprints that were visible in
the mud and dog feces near the victim’s body. Investigators later determined that the victim had
been dragged to and hidden in the shed after she was already deceased. The chief medical
examiner testified that Michelle Johnson’s death was a homicide caused by “sharp force injuries
17
to the neck.” Buck’s former manager at Burger King testified that on Friday, March 14, 2014,
Buck was scheduled to work the night shift. However, the former manager and other co-workers
testified that Buck called off that evening in order to seek medical treatment after cutting her
hand with a knife while at home.
{¶47} While investigating the crime scene at the Maplepark Road residence, BCI Agent
Brenda McNeely testified that she also observed the shoeprints that were present in the mud and
dog feces in the backyard. She specifically noted that the shoeprints made a waffle-like pattern.
Agent McNeely stated that she and another agent made a cast of one of the shoeprints that was in
the mud near the victim’s body. She also took pictures of a number of the other shoeprints
discovered around the crime scene. Police subsequently collected Buck’s shoes as evidence and
sent them to BCI for testing. Daniel Davison, a forensic analyst with BCI, testified that after
examining Buck’s shoes, the photographs of the shoeprints from the crime scene, and the cast
from the shoeprint, he concluded that Buck’s shoes, or a pair of shoes with the same
characteristics as Buck’s shoes, could have made the waffle-like shoe impressions that were
discovered near the victim’s body.
{¶48} Moreover, Officer Bailey testified that once backup arrived at the crime scene, he
entered the house through the front door in order to ensure that no other victims or persons were
inside. Officer Bailey stated that he observed suspected bloodstains while walking through the
bottom floor of the house. Multiple agents from BCI testified that during their investigation
inside of the Maplepark Road residence, they observed suspected bloodstains in numerous
locations. These agents further testified that the suspected bloodstains were only discovered in
the lower level of the house, where Buck resided. Agent McNeely specifically testified that
based on the numerous bloodstains detected, she was able to discern that Michelle Johnson was
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killed in the lower level of the residence around Buck’s sleeping area and the laundry room.
Another BCI agent, George Staley, testified that after inspecting the interior of the residence, he
was able to determine that an attempt had been made to clean up the crime scene following
Michelle Johnson’s death. The BCI agents also took swabs of suspected bloodstains from the
residence, as well as swabs from the victim’s fingernail clippings, for DNA testing.
{¶49} Samuel Troyer, a DNA forensic analyst with BCI, tested the swabs that were
taken from the crime scene and from the interior of Buck’s car. Troyer testified that the DNA
profiles from the swabs taken from the suspected bloodstains on library books found within
Buck’s car were consistent with Michelle Johnson. Moreover, Troyer testified that the DNA
profiles from a number of the swabs of suspected bloodstains taken from the lower level of the
Maplepark Road residence were consistent with either Buck or Michelle Johnson, or a mixture of
the two. Specifically, Troyer testified that the DNA profile from the swab taken from Michelle
Johnson’s left hand fingernail clippings was a mixture, meaning that more than one person’s
DNA was present. Troyer explained that the major DNA profile from the fingernail clippings is
consistent with the victim, Michelle Johnson, and that the minor DNA profile is consistent with
contributions from at least Buck. Additionally, Troyer stated that Buck could not be excluded as
the source of the DNA from the swabs of suspected bloodstain taken from the washing machine,
the wall above the bathroom sink, and the garage floor. Troyer concluded that based on the
national database provided by the FBI, the expected frequency of occurrence of the DNA profile
from these swabs is one in 1,250,000,000,000,000,000 (one quintillion, two hundred and fifty
quadrillion) unrelated individuals. Troyer further testified that Buck could not be excluded as a
contributor to the DNA from the swab taken from the victim’s left hand fingernail clippings and
the swab of suspected bloodstain taken from the handle of a paint can that was found in the
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laundry room near the bottle of bleach. He explained that based on the FBI’s national database,
the proportion of the population that cannot be excluded as possible contributors to the mixture
of DNA profiles on the swabs from the left hand fingernail clippings and the handle of the paint
can is one in 751,300 unrelated individuals and one in 84,320,000 unrelated individuals,
respectively. Also, Troyer stated that Buck could not be excluded as a contributor of the DNA
from one of the three swabs taken from the bottle of bleach in the laundry room. Troyer
concluded that the proportion of the population that cannot be excluded as possible contributors
to the mixture of DNA profiles on the swab from the bleach bottle is one in 3,880 unrelated
individuals.
{¶50} Lastly, the mailman and two neighbors testified that they saw Buck at her
Maplepark Road home at some point on either Friday, March 14, 2014, or Saturday, March 15,
2014, prior to the police discovering Michelle Johnson’s body. Specifically, one neighbor
testified that between 8:00 a.m. and 10:00 a.m. on Saturday, March 15, 2014, he observed Buck
walking near the shed in her backyard with the Johnsons’ dog. This neighbor further testified
that he is familiar with the Johnsons’ dog and that it was acting very unusual on this particular
morning. Also, the mailman who typically delivers the mail on Maplepark Road testified that at
approximately 3:30 p.m. on Saturday, March 15, 2014, he delivered a certified letter that was
addressed to Buck. The mailman testified that Buck answered the door and signed for her letter.
{¶51} Viewing this evidence in a light most favorable to the State, we conclude that the
evidence presented at trial was sufficient for a jury to conclude that Buck caused the death of
Michelle Johnson. Moreover, the chief medical examiner testified that Michelle Johnson
suffered a total of 32 stab or incised wounds. This testimony alone is sufficient evidence to
establish Buck’s purpose to kill. See State v. Scudder, 71 Ohio St. 3d 263, 274 (1994) (“[T]he
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number and nature of [the victim’s] stab wounds clearly established appellant’s purpose to
kill.”).
{¶52} Accordingly, Buck’s seventh assignment of error is overruled.
Assignment of Error VIII
The trial court erred in [admitting] over the objection of defense counsel the
information regarding the DNA testing completed by Dr. Samuel Troyer as
he did not complete all four steps of the DNA identification process and the
other scientist who completed steps one through three did not testify at all.
{¶53} In her eighth assignment of error, Buck argues that the trial court erred by
admitting the forensic DNA analyst’s testimony concerning his DNA testing because the analyst
did not personally perform all four steps of the DNA process. However, a careful review of the
transcript reveals that while Buck did object to the forensic DNA analyst’s testimony on the
basis that some of his testimony violated Crim.R. 16(K), Buck did not specifically object on the
basis that the analyst did not personally conduct all four steps of the DNA identification process.
Accordingly, as it relates to her argument concerning the DNA identification process, we
conclude that Buck has forfeited all but plain error on appeal. Although Buck has preserved
plain error review, she has failed to argue the existence of plain error on appeal. This Court has
repeatedly noted that it will not sua sponte fashion an unraised plain error argument and then
address it. See McCrae, 2015–Ohio–1803, at ¶ 8; see also App.R. 16(A)(7).
{¶54} Buck’s eighth assignment of error is overruled.
III.
{¶55} With all of Buck’s assignments of error having been overruled, the judgment of
the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
WHITMORE, P. J.
CONCURS.
HENSAL, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
JENNIFER A. CUNDIFF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.