State v. Italiano , 2021 Ohio 1283 ( 2021 )

[Cite as State v. Italiano, 2021-Ohio-1283.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
NICHOLAS ITALIANO,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0095
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 18 CR 899
BEFORE:
Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant
Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Plaintiff-Appellee
Atty. James S. Gentile and Atty. Ronald D. Yarwood, 42 North Phelps Street,
Youngstown, Ohio 44503, for Defendant-Appellant.
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Dated: March 31, 2021
WAITE, J.
{¶1} Appellant Nicholas Italiano appeals from a judgment of the Mahoning
County Court of Common Pleas sentencing him to prison after a jury convicted him on
one count of felonious assault with an accompanying firearm specification. For the
following reasons, the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} The following facts were presented at the trial. On September 1, 2018,
Myeshia Traylor (“Traylor”) went to the Sami Quik Stop at the corner of Market Street and
Midlothian Boulevard in Youngstown. When Traylor pulled into the parking lot she noticed
a red pickup truck parked “longways,” or horizontally across the front parking spaces
rather than vertically in a parking spot. (6/10/19 Tr., p. 247.) She waited for the truck to
move before she pulled into a parking space. After parking, she asked the driver,
identified as Appellant, what he was doing and the situation apparently quickly escalated.
She called him “rude” and proceeded into the store. (6/10/19 Tr., p. 267.) Appellant
testified that Traylor also called him “an ignorant a** motherf*cker.” (6/10/19 Tr., p. 520.)
Appellant responded, “f**k you, n*gg*r b*tch,” and threatened to ram into her car. (6/10/19
Tr., p. 249.)
{¶3} Once in the store, Traylor watched Appellant move his truck and block her
car in its parking space. She called her fiancé, Michael Collins (“Collins”) because she
was worried for her safety. Collins agreed to come to her aid, so Traylor waited in the
store for him to arrive. While she waited she observed Appellant pacing back and forth
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outside of his truck even though there was nothing to prevent Appellant from leaving the
scene. Appellant testified that he remained in the parking lot to clear up the
“misunderstanding” with Traylor. (6/10/19 Tr., p. 533.)
{¶4} Collins arrived a short time later with his friend, Keith Shaw (aka Keith
Johnson.) Collins testified that neither he nor Shaw were carrying weapons. Collins
confronted Appellant while Traylor waited in the store. She saw that Appellant had his
right hand in his pocket during this confrontation. (6/10/19 Tr., p. 254.) The store
manager, Thamer Abualganen, went out to speak to the pair and was followed out by
Traylor. A few people who had been inside the store also began to gather around the
scene. According to Collins, Appellant challenged Collins and Shaw to a fight. In an
attempt to mediate the situation, Abualganen asked Appellant to apologize to Traylor.
Appellant refused, saying “I ain’t apologizing to that b*tch for s**t.” (6/10/19 Tr., p. 298.)
Offended by this comment, Collins testified that he punched Appellant and “jumped back
in a defensive stance” because he thought Appellant was going to strike him. (6/10/19
Tr., p. 300.) Appellant testified that after he was hit he “blacked out” and was “dazed.”
(6/10/19 Tr., p. 498.) However, Collins and Abualganen both testified that they almost
immediately heard a click and saw Appellant pull out a gun. Collins turned and fled.
Abualganen testified that after Collins had begun to run and was only a short distance
away Appellant shot Collins in the back. Appellant admitted that after he was hit he pulled
out his gun and fired it at Collins. (6/10/19 Tr., p. 498.) According to Abualganen,
Appellant then started pointing the gun at everyone in the parking lot. (6/10/19 Tr., pp.
354-357.) The crowd disbursed and Abualganen returned to the store.
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{¶5} Collins continued to run until he realized he had been shot. He then turned
and walked toward his vehicle in order to travel to the hospital. (6/10/19 Tr., p. 303.) As
he was crossing Market Street he heard a car engine revving and saw Appellant’s truck
accelerating toward him, so he jogged into the store parking lot. (6/10/19 Tr., p. 306.)
Collins heard the truck enter the parking lot and head towards him, so he ducked between
two cars. (6/10/19 Tr., p. 306.) Appellant then accelerated out of the parking lot on to
Market Street and drove away.
{¶6} After fleeing the scene, Appellant drove to the intersection of Erie Street and
Hollywood, where he stopped and called 911 to inform the operator that he shot someone.
Once Appellant arrived at the police station, he admitted he shot Collins but alleged it was
in self-defense. Appellant informed police he had a concealed carry license permit.
Police reviewed the Sami Quik Stop security recording and then placed Appellant under
arrest for felonious assault. A .380 Ruger handgun was recovered from his person at the
time of his arrest.
{¶7} On October 4, 2018, Appellant was indicted on one count of felonious
assault in violation of R.C. 2903.11(A)(2)(D), a second-degree felony; an accompanying
firearm specification in violation of R.C. 2903.11(A)(2)(D), a second-degree felony; and
one count of attempted murder in violation of R.C. 2923.02 and R.C. 2903.02(A), a first-
degree felony. At the conclusion of a jury trial, Appellant was found guilty of felonious
assault and the accompanying firearm specification. Appellant was sentenced to four
years in prison for felonious assault and three years for the firearm specification, to be
served consecutively, for a total stated prison term of seven years.
{¶8} Appellant filed this timely appeal.
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ASSIGNMENT OF ERROR NO. 1
APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND DUE
PROCESS WHEN THE TRIAL COURT IMPROPERLY INCLUDED A
FLIGHT INSTRUCTION IN THE JURY CHARGE. (Trial Transcript at
601.602, 672.673).
{¶9} In his first assignment of error Appellant argues the trial court erred when it
instructed the jury regarding his consciousness of guilt by including a flight instruction in
the jury charge. When trial counsel files a timely objection to jury instructions pursuant to
Crim.R. 30, a reviewing court will not reverse the trial court’s decision in the matter absent
an abuse of discretion. State v. Taylor, 7th Dist. Mahoning No. 08 MA 122, 2010-Ohio-
1551, ¶ 26, citing State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989). An
abuse of discretion connotes more than an error of judgment; it implies that the court's
attitude is unreasonable, arbitrary, or unconscionable. Yashphalt Seal Coating, LLC v.
Giura, 7th Dist. Mahoning No. 18 MA 0107, 2019-Ohio-4231, ¶ 14, citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Generally, a trial court has
broad discretion regarding jury instructions, but is required to “fully and completely give
the jury all instructions which are relevant and necessary for the jury to weigh the evidence
and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206, 210, 553
N.E.2d 640 (1990).
{¶10} A flight instruction is considered within the context of the entire set of jury
instructions. State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772 (1979), paragraph four of
the syllabus. A jury instruction is proper when: (1) the instruction is relevant to the facts
presented; (2) it provides the correct statement of the relevant law; and (3) the instruction
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is not already covered in the general charge to the jury. State v. Kovacic, 11th Dist. Lake
No. 2010-L-065, 2012-Ohio-219, ¶ 15.
{¶11} Here, the trial court instructed the jury:
Testimony has been admitted indicating that the defendant fled the scene.
You are instructed that fleeing the scene alone does not raise a presumption
of guilt. But it may tend to indicate the defendant’s consciousness of guilt.
If you find that the facts do not support the defendant fleeing the scene, or
if you find that some other motive prompted the defendant’s conduct, or if
you’re unable to decide what the defendant’s motivation was, then you
should not consider this evidence for any purpose.
However, if you find that the facts support that the defendant engaged in
such conduct and you decide that the defendant was motivated by a
consciousness of guilt, you may, but are not required to consider the
evidence in deciding whether the defendant is guilty of the crime or crimes
charged. You alone will determine what weight, if any, to give this evidence.
(6/10/19 Tr., pp. 672-673.)
{¶12} The Ohio Supreme Court has consistently held that the fact of the accused’s
flight is admissible as evidence of the accused’s consciousness of guilt and, thus, of guilt
itself. State v. Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897 (1969), vacated on other
grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750; holding reaffirmed by State v.
Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997). In this case, the evidence
presented at trial showed that, after shooting Collins in the back as he was running from
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the parking lot, Appellant got into his truck. Appellant revved his engine and proceeded
to speed toward Collins as he walked back to his own vehicle so that he could seek
medical treatment. When Collins jogged into a parking lot Appellant turned around and
drove towards him again, causing Collins to duck between cars. Then Appellant fled from
the scene in his truck. This evidence is enough to support a flight instruction. The
testimony from several witnesses at trial established that Appellant shot Collins and then,
after attempting to run him down with his vehicle, sped away from the scene.
{¶13} Appellant first contends that the flight instruction was not proper because
he stopped only a short time later and a few blocks away and telephoned the police, and
then waited for them to arrive. However, his call to the police came after he had already
fled the scene. Appellant also attempts to characterize his leaving as necessary to protect
his own safety, because he had been assaulted and feared that worse would follow. This
is not borne out by the evidence at trial. The security video from the store was played at
trial and is part of the record on appeal. It is undisputed that Collins struck Appellant first.
However, Collins then turned and ran. Appellant proceeded to shoot Collins while he was
fleeing and, for good measure, attempted to twice run Collins down before fleeing the
scene. This does not comport with Appellant’s assertion that he feared for his safety and
left for his own protection. The instruction at issue is similar to one which has previously
been upheld by this Court regarding flight as evidence of consciousness of guilt. State v.
Green, 7th Dist. Mahoning No. 01 CA 54, 2003-Ohio-3074. The evidence here
established Appellant fled the scene after shooting Collins and the instruction contained
a caution to the jury that flight does not create a presumption of guilt, but can be
considered as evidence of consciousness of guilt. The trial court did not abuse its
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discretion in giving this instruction to the jury. Appellant’s first assignment of error is
without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
THE VERDICT FOR FELONIOUS ASSAULT, AND THE ACCOMPANYING
GUILTY FINDING ON THE FIREARM SPECIFICATION WERE AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE. (Trial Transcript at 702).
{¶14} In his second assignment of error, Appellant contends his conviction for
felonious assault and the accompanying firearm specification were against the manifest
weight of the evidence. He contends the evidence reflects that he shot Collins in self-
defense, out of a reasonable fear of imminent harm.
{¶15} Weight of the evidence focuses on “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
(Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
A review of the manifest weight of the evidence focuses on the state's burden of
persuasion and the believability of the evidence presented. State v. Merritt, 7th Dist.
Jefferson No. 09 JE 26, 2011-Ohio-1468, ¶ 34. A reviewing court “weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 484
N.E.2d 717 (1st Dist.1983).
{¶16} A reversal under a manifest weight review in a criminal matter should be
granted only “in the exceptional case in which the evidence weighs heavily against the
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conviction.” State v. Andric, 7th Dist. Columbiana No. 06 CO 28, 2007-Ohio-6701, ¶ 19,
citing Martin at 175. Determinations regarding witness credibility, conflicting testimony,
and evidence weight “are primarily for the trier of the facts.” State v. Hunter, 131 Ohio
St.3d 67, 2011-Ohio-6524, 960 N.E.2d 995, ¶ 118, quoting State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact is in
the best position to weigh all evidence and judge the witnesses' credibility by observing
their gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984). When presented with two fairly reasonable
perspectives regarding the evidence or with two conflicting versions of events, neither of
which can be ruled out as unbelievable, we will not choose which one is more credible.
State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
{¶17} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(2)(D). Self-defense is available as a defense to felonious assault. Previously,
self-defense was an affirmative defense which placed the burden on the defendant to
prove each element by a preponderance of the evidence. On March 28, 2019, a new law
went into effect in Ohio placing the burden on the prosecutor, not the defendant, to prove
the accused did not act in self-defense. Thus, the self-defense statute was amended to
shift the burden of proof to the state to “prove beyond a reasonable doubt that the accused
person did not use the force in self-defense, defense of another, or defense of that
person's residence, as the case may be.” R.C. 2901.05(B)(1).
{¶18} There are two types of self-defense in Ohio: (1) self-defense against danger
of bodily harm, or non-deadly force self-defense; and (2) self-defense against danger of
death or great bodily harm, or deadly force self-defense. Struthers v. Williams, 7th Dist.
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Mahoning No. 07 MA 55, 2008-Ohio-6637, ¶ 13. When an accused raises self-defense,
in order to convict on felonious assault the state now must prove beyond a reasonable
doubt that the accused: (1) was at fault in creating the situation giving rise to the incident;
(2) did not have a bona fide belief that he was in imminent danger of death or great bodily
harm and that his only means of escape from such danger was the use of force; and (3)
violated the duty to retreat or avoid danger. State v. Jackson, 8th Dist. Cuyahoga No.
108493, 2020-Ohio-1606, ¶ 17. Although the burden has shifted to the state, the
elements remain cumulative. Id.{¶19} Reviewing the first element, this incident began with an exchange that
occurred between Appellant and Traylor in the parking lot. Traylor approached Appellant,
who was blocking parking spaces, and a verbal altercation arose between the two parties.
Once Traylor went into the store, Appellant moved his vehicle to block Traylor’s car.
Appellant chose to remain, although there was no physical obstruction preventing him
from leaving and the contact with Traylor had concluded. Appellant testified that he
remained to clear up a supposed “misunderstanding” with Traylor, the nature of which is
unclear. He did not remain to apologize, as evidenced by his refusal to do so when asked
by Abualganen. In fact, Appellant then further increased the tense nature of the situation
by once again calling Traylor a “bitch” in front of Collins. It was only then that Collins
struck Appellant. Based on this evidence, the state met its burden of proof beyond a
reasonable doubt that Appellant was at fault for creating the situation which gave rise to
the incident. While Traylor may have contributed to creating the situation with her initial
comments to Appellant, once this initial verbal contact was clearly over, Appellant
deliberately blocked Traylor’s car and paced around outside of his truck, obviously waiting
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for her to return to her vehicle. Appellant had ample time and opportunity to simply get
into his truck and drive away, but did not. And when approached by the store manager,
Appellant escalated the “war of words” for no apparent cause after being entreated to
leave or at least apologize. This record reveals that Appellant’s conduct created and
escalated the situation.
{¶20} Regarding the second element, Appellant testified that after he was struck
by Collins he was “dazed” from the hit and that he “blacked out.” Somewhat unbelievably,
in this allegedly semi-conscious state, Appellant immediately reached for his gun and shot
Collins. However, Collins was clearly in the process of retreating from the scene and this
is reinforced by the evidence that Appellant shot him in the back. This scenario also is
evident in the surveillance video shown to the jury. The testimony from Abualganen
corroborated that once Collins struck Appellant, Appellant removed his gun, cocked it and
aimed at Collins, shooting him while he was retreating. Therefore, Appellant’s assertion
that he was in fear of imminent death or great bodily harm when he used deadly force is
not borne out by any evidence at trial. Appellant followed up the shooting by trying, not
once but twice, to run Collins over with his truck rather than retreating. Certainly if
Appellant feared he was in imminent danger of great bodily harm or death he would not
seek out further altercation with his supposed aggressor as an act of self-defense. Lastly,
Appellant admitted that Collins did not pose an immediate threat to him when Collins
arrived at the scene. (6/10/19 Tr., p. 542.) Appellant said he was not “physically”
threatened, but felt “mentally” threatened. (6/10/19 Tr., pp. 543-544.) There was also no
evidence that Collins or any of the bystanders in the parking lot had a gun to support any
claim of imminent danger of death or great bodily harm, and none except Collins
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approached Appellant or acted in any aggressive manner towards Appellant. The state
met its burden on the second element.
{¶21} Regarding the third element, the state was required to establish that
Appellant had ample opportunity to retreat to avoid any danger. Abualganen testified that
at the time Appellant seemed “angry” and refused to leave when asked. Once Collins got
there, Abualganen asked Appellant to apologize to Traylor in an attempt to defuse
tensions. Instead, Appellant refused and called Traylor a bitch. (6/10/19 Tr., p. 255.)
This did cause Collins to strike Appellant, but then Collins immediately turned and fled.
Appellant did not, himself, retreat. Instead, he pulled out his gun and shot Collins in the
back. (6/10/19 Tr., pp. 300-301.)
{¶22} After a review of the record, Appellant’s conviction for felonious assault with
the accompanying firearm specification was not against the manifest weight of the
evidence. The state established beyond a reasonable doubt that Appellant did not act in
self-defense. The jury was presented with two theories. The jury ultimately concluded
the state’s theory, supported by the testimony of several witnesses and a surveillance
video, was more credible. The eyewitness testimony along with the physical evidence
support a determination that a reasonable jury could have concluded beyond a
reasonable doubt that Appellant did not act in self-defense in shooting Collins.
{¶23} Appellant’s second assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 3
APPELLANT WAS DENIED HIS RIGHTS TO A FAIR TRIAL AND DUE
PROCESS AS THE TRIAL COURT IMPROPERLY INSTRUCTED THE
JURY AS TO SELFDEFENSE. (Trial Transcript at 676-678).
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{¶24} In his third assignment of error, Appellant contends the trial court committed
plain error in instructing the jury on “non-deadly force,” as this instruction rendered it
impossible, as a matter of law, for the jury to find that he acted in self-defense. We note
defense counsel did not specifically object that the self-defense instruction applied to only
the use of non-deadly force. Pursuant to Crim.R. 52(B), in the absence of an objection,
this Court may review plain errors or defects which affect a substantial right. Generally,
however, notice of plain error under Crim.R. 52(B) must be taken with caution and only
under exceptional circumstances, to prevent a manifest miscarriage of justice. State v.
Gardner, 118 Ohio St.3d 420, 889 N.E.2d 995, 2008-Ohio-2787, ¶ 78. Hence, failure to
object to an improper statement in a jury instruction constitutes a waiver on appeal unless,
but for the error, the outcome of the trial clearly would have been different. State v.
Underwood, 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983), at syllabus.
{¶25} Here the trial court’s jury instruction on self-defense reads:
The defendant is allowed to use non-deadly force in self defense. Evidence
was presented that tends to support a finding that the defendant used non-
deadly force in self defense. The state must prove beyond a reasonable
doubt that the defendant did not use non-deadly force in self defense. Self
defense means, A, that the defendant was not at fault in creating the
situation giving rise to the defendant shooting Michael Collins. And B, that
the defendant had reasonable grounds to believe, and an honest belief,
even if mistaken, that he was in eminent or immediate danger of harm.
(6/10/19 Tr., pp. 675-676.)
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{¶26} “Deadly force” is defined as “any force that carries a substantial risk that it
will proximately result in the death of any person.” R.C. 2901.01(A)(2). Appellant fired a
gun at Collins, an action which clearly carries a substantial risk of death. The trial court’s
instruction to the jury involved only the appropriate use of non-deadly force, and contained
no language addressing the use of deadly force in a self-defense context. Appellant
argues plain error in that this instruction completely prevented the jury from finding
Appellant acted in self-defense since the evidence established he used deadly force.
Again, when a defendant who uses deadly force asserts he or she acted in self-defense,
in order to overcome this the state must prove beyond a reasonable doubt all of the
following: (1) the defendant was at fault in creating the situation; (2) the defendant did
not have a bona fide belief that he was in imminent danger of death or great bodily harm
and that his only means of escape from such danger was the use of force; and (3) the
defendant violated a duty to retreat or avoid danger. Jackson, ¶ 17. Appellant is correct
in that the jury instruction, as given, required the jury to find that he used non-deadly force
against Collins, in order to avail himself of this defense, when it was undisputed that
Appellant used deadly force.
{¶27} Courts have found plain error when a trial court fails to properly instruct a
jury on deadly rather than non-deadly force. State v. Ward, 168 Ohio App.3d 701, 3006-
Ohio-4847, 861 N.E.2d 823 (4th Dist.). However, where the evidence establishes beyond
a reasonable doubt that the defendant did not act in self-defense, the incomplete jury
instruction is harmless error. Here, the jury was presented with substantial evidence on
which to find beyond a reasonable doubt that Appellant did not act in self-defense. As
discussed in the second assignment of error, Appellant was responsible for creating and
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escalating the situation leading to the shooting of Collins: using rude and insulting
language; failing and refusing to leave the parking lot, instead blocking in Traylor’s car
and waiting for her to reappear; and shooting a man he provoked into punching him while
that man was fleeing. The state established that Appellant could not have had a bona
fide fear of imminent great bodily harm or death as all of the testimony and evidence
showed that Collins was fleeing from Appellant when Appellant shot him in the back. The
record is very clear that Appellant could have retreated or avoided danger by simply
leaving after his verbal altercation with Traylor ended or even after being struck while
Collins was fleeing. The record shows Appellant responded to a non-deadly situation
with the use of deadly force. Accordingly, Appellant cannot demonstrate that, but for the
jury instruction error, the outcome of his trial would have clearly been different.
{¶28} Appellant’s third assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED AND DENIED APPELLANT A FAIR TRIAL
AND DUE PROCESS BY ALLOWING RACE TO BE A FACTOR IN THE
CASE AND PERMITTING THE PROSECUTOR TO PRESENT
TESTIMONY PREJUDICING APPELLANT. (Trial Transcript at 299).
{¶29} Appellant contends that the trial court erred in permitting the state to present
race-based testimony in his trial. As he was not specifically charged for a hate crime, he
claims this evidence constituted prejudice and denied him a fair trial. After Traylor testified
that Appellant referred to her with the use of a racial slur, Collins testified about his
encounter with Appellant. Appellant cites to the following direct testimony of the victim,
Collins.
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[PROSECUTOR]: What provoked you [into punching Appellant]?
[COLLINS]: Well, the store man asked [Appellant] to apologize to my
fianc[é] for the things he had said.
[PROSECUTOR]: Okay.
[COLLINS]: And so I said yeah, you know, that’s the least you can do.
[PROSECUTOR]: All right.
[COLLINS]: He said [Appellant] said I ain’t apologizing to that bitch for shit.
***
[PROSECUTOR]: Okay. Now, when he responds using that term how does
that make you feel?
[COLLINS]: It made me feel he ought to be slapped.
[PROSECUTOR]: Were you offended?
[COLLINS]: I was definitely offended.
[PROSECUTOR]: Okay. Now, it’s unfortunate that I’m going to have to ask
the following questions. But I think it’s important for the jury to understand.
You are obviously African-American?
[COLLINS]: Yes.
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[PROSECUTOR]: And you have had to deal with a very, very racism [sic]
in the country, and specifically within the city of Youngstown?
[DEFENSE COUNSEL]: Objection, Your Honor.
[COLLINS]: Yes.
[THE COURT]: Overruled.
[PROSECUTOR]: Now, I understand that there are certain terms that are
highly offensive to different races. What is a specific term that you as an
African-American find very offensive?
[COLLINS]: Being called a n****r by a white person.
[PROSECUTOR]: It is different, and it’s kind of used jovial between two
African-Americans, correct?
[COLLINS]: Yes. When you put the e-r on the end and it comes from a
white person that makes it offensive.
[PROSECUTOR]: Okay. And that makes you feel a certain way, doesn’t
it?
[COLLINS]: Yeah, I mean, you know.
(6/10/19 Tr., pp. 298-299.)
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{¶30} Appellant concedes that “[t]here was nothing the trial court could do about
Traylor telling the jury that Appellant called her a n****r,” but that the latter testimony by
Collins was hearsay and served only to portray Appellant as a racist. (Appellant’s Brf., p.
17.) The state argues the statements were admissible under Evid.R. 801(D)(2)(a) as a
party’s own admission made by a party-opponent. The state also contends the testimony
was necessary and relevant to establish whether Appellant acted in self-defense.
{¶31} Trial court decisions regarding the admissibility of evidence are reviewed
under an abuse of discretion standard. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-
160, 840 N.E.2d 1032. Thus, an appellate court will not disturb a trial court’s ruling on
the admissibility of evidence absent a showing of abuse of discretion and material
prejudice to the defendant. State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199, 921
N.E.2d 276, ¶ 14 (4th Dist.).
{¶32} Evid.R. 801(D)(2)(a) relates to admissions by party-opponents and
provides:
(D) Statements which are not hearsay. A statement is not hearsay if:
***
(2) Admission by party-opponent. The statement is offered against a party
and is (a) the party's own statement, in either an individual or a
representative capacity[.]
Evid.R. 801(D)(2)(a).
{¶33} Generally, testimony about a defendant’s own prior statements is not
hearsay when offered by the state pursuant to Evid.R. 801(D)(2)(a). Although Appellant
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denied that he used a racial slur in referring to Traylor, both Traylor and Collins testified
that Appellant called her a “n****r bitch.” (6/10/19 Tr., p. 249.) Although the statements
are racist and inflammatory in nature, that fact alone does not make them inadmissible
as an exception to hearsay under Evid.R. 801(D)(2)(a). Collins’ testimony regarding the
significance of the use of a racial slur directed at his fiancé is not prejudicial to Appellant
in this matter, as it speaks to Collins’ experience and feeling regarding the use of the
statement and explains why he struck Appellant. Of particular importance is the fact that
Appellant concedes Traylor’s testimony regarding Appellant’s use of a racial slur was
already before the jury. Thus, whether Appellant made the derogatory comment and the
impact this may have had on the situation appears relevant as to what led to Collins’
decision to strike Appellant, at the very least. Appellant also cannot demonstrate that
Collins’ testimony materially prejudiced him at trial. Appellant admits he shot Collins in
the back. Whether he directed the slur at Traylor or not, the record is devoid of any facts
that would allow a jury to find he was justified in the use of deadly force, here.
{¶34} Appellant’s fourth assignment is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRED AND DENIED APPELLANT A FAIR TRIAL
AND DUE PROCESS BY ALLOWING RACE TO BE A FACTOR IN THE
CASE AND PERMITTING THE PROSECUTOR TO PRESENT
TESTIMONY PREJUDICING APPELLANT. (Trial Transcript at 299).
{¶35} Appellant argues cumulative errors occurred regarding the jury instructions
and Collins’ testimony, and that these collectively deprived him of a fair trial, warranting
reversal. Under the doctrine of cumulative error, a conviction will be reversed when the
Case No. 19 MA 0095
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cumulative effect of error during a trial deprives a defendant of a fair trial even though
each of the alleged instances of error do not individually constitute cause for reversal.
State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987). An error-free, perfect trial
does not exist, and is not guaranteed by the Constitution. State v. Hill, 75 Ohio St.3d 195,
212, 661 N.E.2d 1068 (1996). In order to find cumulative error, a record must contain
multiple instances of harmless error. State v. Austin, 7th Dist. Mahoning No. 16 MA 0068,
2019-Ohio-1185, ¶ 64. When an appellate court determines no error has occurred, the
doctrine cannot apply. State v. Lyons, 7th Dist. Jefferson No. 16 JE 0008, 93 N.E.3d 139,
2017-Ohio-4385, ¶ 46. As we have found no error in three of Appellant’s assignments
and only harmless error in the remaining argument, Appellant’s fifth assignment based
on cumulative error clearly has no merit.
{¶36} Appellant has failed to show the trial court abused its discretion in giving a
flight instruction and that any error with regard to the self-defense instruction is harmless.
His convictions were not against the manifest weight of the evidence. Likewise, there
was no error in admitting certain portions of the victim’s testimony. Hence, Appellant
cannot demonstrate cumulative error. For the foregoing reasons, all of Appellant’s
assignments of error are without merit and the judgment of the trial court is affirmed.
Donofrio, P.J., concurs.
Robb, J., concurs.
Case No. 19 MA 0095
[Cite as State v. Italiano, 2021-Ohio-1283.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.