State v. Echols ( 2021 )

[Cite as State v. Echols, 2021-Ohio-4193.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-587
v. : (C.P.C. No. 18CR-2869)
David J. Echols, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 30, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney and
Sheryl L. Pritchard for appellee. Argued: Sheryl L.
Pritchard.
On brief: Carpenter Lipps & Leland L.L.P., Kort Gatterdam,
and Eric P. Henry, for appellant. Argued: Kort Gatterdam.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, David J. Echols, appeals the judgment of the Franklin
County Court of Common Pleas, finding him guilty of two counts of murder each with a
three-year firearm specification, two counts of attempted murder each with a three-year
firearm specification, and two counts of felonious assault each with a three-year firearm
specification. The two murder charges merged, and the felonious assault charges merged
into the attempted murder charges, and appellant was ultimately sentenced to an aggregate
period of 30 years to life incarceration.
{¶ 2} The plaintiff-appellee, State of Ohio, alleged that on June 9, 2017, appellant
and an unidentified accomplice shot multiple rounds into a vehicle from a short distance
away, causing the death of passenger Damon Waddell and severe injury to the driver,
Tyanna West. A second passenger, Shaiquon Sharpe, seems to have escaped injury, but
Sharpe did not appear at trial and his whereabouts are apparently unknown.
No. 19AP-587 2
{¶ 3} At the time West, Waddell, and Sharpe were driving around the area of West's
home at 1161 Loretta Ave., and after West saw her sister's father "Brandon" outside 1047
Loretta Ave., she stopped the vehicle in the middle of the street, intending to speak with
him. She then saw other people nearby, including appellant and his brother James. A few
months earlier, West's younger brother D'ante had been shot and killed, and although at
the time of this trial no one had been arrested for D'ante's death, West believed that
appellant was responsible. West had placed commemorative stickers honoring D'ante on
her vehicle.
{¶ 4} West stated that when she first saw appellant, he was approximately ten feet
away from the car. She testified that after appellant said "what's up" to her and she said
"what's up" back to him, he immediately began shooting at her vehicle, but she admitted
that she did not see appellant with a gun prior to the shooting and could not identify the
type of gun used. She quickly drove away, telling Waddell they were going to get help, and
fled to her grandmother's house, which was approximately six blocks away. When they
arrived, Sharpe exited the vehicle and left the scene.
{¶ 5} West then attempted to obtain assistance from one of her grandmother's
neighbors, Latisha Laramore. Ms. Laramore testified she heard the gunshots and saw the
vehicle stop in front of her house and heard West state that "they shot us" and that "David"
had shot them. Ms. Laramore called 9-1-1, and police arrived a few minutes later.
{¶ 6} Columbus Police Officer Christopher O'Neall testified at trial that when he
and his partner arrived on the scene, West was hysterical and stated that "the same guy that
killed my brother, shot him," and told him that the shooter's name was "David." (June 25,
2019 Tr. Vol. II. at 320.) Officer O'Neall examined Waddell but was unable find a pulse.
Medics arrived shortly thereafter and pronounced Waddell dead at the scene.
{¶ 7} O'Neall's partner Officer Rick Foster similarly testified that when he arrived
at the scene, he heard West screaming that "he shot me," and that when he asked her who
shot her, she answered "David," and repeated it several times. Id. at 514. West also stated
to Officer Foster that it was the same person who shot her brother in May 2017. Id. at 515.
Officer Foster also testified that he visually evaluated West's injuries and that she appeared
to have been shot in the leg and in the hand, but that her injuries were not life-threatening.
After West was taken to the hospital, Officer Foster interviewed some neighborhood
No. 19AP-587 3
witnesses at the scene, and that one of them told him that she knew who "David" was and
provided him a Facebook photo of appellant under the screenname "David RIP Ace Loc."
Id. at 522.
{¶ 8} Columbus Police Officer Alex Kistner arrived at the scene around the same
time as Officers O'Neall and Foster. Officer Kistner also checked Waddell, but he too was
unable to find a pulse. Officer Kistner activated his body camera as he arrived at the scene,
and footage from the camera was admitted at trial. He also testified that he was able to
match the Facebook photo and screen name "David RIP Ace Loc" to a law enforcement
photo of the defendant, David Echols, and informed homicide detectives arriving at the
scene of the match. Id. at 360-62.
{¶ 9} West was transported to Riverside Methodist Hospital, and while she was
receiving treatment for multiple gunshot wounds, she was visited by a detective who
showed her a photo array including appellant, and she identified appellant as the shooter.
The following day, she was able to identify James Echols in a different photo array, although
she had only seen photos of him on social media and had not seen him in person prior to
the incident.
{¶ 10} The police recovered 16 bullet casings as well as several bullets and bullet
fragments from the scene of the shooting. A crime lab examiner concluded that the bullets
and fragments fired that day came from 2 different guns, one of which fired at least nine
shots, and the other fired at least 7. West testified that she believed only one gun had been
fired that day, although she estimated that more than 10 shots were fired at the vehicle.
Evidence at trial indicated that 6 bullets struck the outside of the driver's side of the vehicle,
but there was no evidence of anyone firing a gun from inside the vehicle.
{¶ 11} Appellant was a juvenile at the time of the shooting. On July 13, 2017, a
complaint was filed against him in the Franklin County Court of Common Pleas, Division
of Domestic Relations, Juvenile Division, alleging one count of murder and two counts of
felonious assault, and the juvenile court approved the addition of firearm specifications to
those charges four days later. The state then filed a motion to transfer jurisdiction to the
General Division of the Franklin County Court of Common Pleas for prosecution of
appellant as an adult. Following a competency evaluation and a hearing, the juvenile court
No. 19AP-587 4
concluded that there was probable cause as to the charges of the murder of Waddell and as
to the felonious assault of West.
{¶ 12} The Franklin County Grand Jury returned an indictment against appellant
on June 26, 2018, charging him with the murder of Waddell, the attempted murder and
felonious assault of West, and the attempted murder and felonious assault of Sharpe. All
charges included firearm specifications. Following a jury trial, on June 27, 2019, a jury
found appellant guilty of all counts. In a sentencing hearing on August 14, 2019, the trial
court concluded that several of the charges were allied offenses and merged them, and
ultimately sentenced appellant to a total period of 30 years to life with 24 years of that
sentence as mandatory incarceration. The trial court also concluded that appellant had a
duty to register as a violent offender upon release. This timely appeal followed, and
appellant asserts 9 assignments error with respect to the trial court's judgment.
Assignment of Error No. 1: Mandatory bindovers under
R.C. 2152.12(A)(1)(a)(i) violate due process and equal
protection rights guaranteed under the United States and
Ohio Constitutions.
{¶ 13} Appellant first argues the Ohio mandatory-bindover procedures in Ohio do
not satisfy either procedural or substantive due process under Mathews v. Eldridge, 424
U.S. 319, 335 (1976) and Kent v. United States, 383 U.S. 541, 557-61 (1966).
{¶ 14} The arguments presented in this assignment of error have already been
rejected by the Supreme Court of Ohio, see State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-
2956 ("Aalim II"), and appellant admits in his brief that he "raises this issue in order to
preserve it for further review." (Appellant's Brief at 18.) In accordance with the Supreme
Court in Aalim II, appellant's first assignment of error is overruled.
Assignment of Error No. 2: The juvenile court erred by
finding probable cause existed to transfer this matter to adult
court in violation of the Fifth and Fourteenth Amendments to
the United States Constitution and Article I, Section 16 of the
Ohio Constitution.
{¶ 15} At the bindover hearing held December 21, 2017 and May 31, 2018, the
juvenile court concluded that the state had established probable cause to transfer
jurisdiction of appellant to the general division for the murder of Waddell and the felonious
assault of West. See, e.g., May 31, 2018 Franklin C.P. No. 17JU-8946 at 80-83. In his second
No. 19AP-587 5
assignment of error, appellant contends that the juvenile court's finding of probable cause
was erroneous.
{¶ 16} Under R.C. 2152.12(A)(1)(a)(i), if a complaint is filed alleging that a child is a
delinquent "for committing an act that would be * * * murder * * * or attempted murder if
committed by an adult," the juvenile court "shall transfer the case if * * * [t]he child was
sixteen or seventeen years of age at the time of the act charged and there is probable cause
to believe that the child committed the act charged." (Emphasis added.) Accordingly,
murder and attempted murder are mandatory-bindover offenses for a seventeen-year-old
child like appellant. And although felonious assault under R.C. 2903.11(A) would normally
be a discretionary-bindover offense under R.C. 2152.10, because it was filed as part of the
same "case" the statute requires transfer of that charge as well. See, e.g., State v. Cockrell,
1st Dist. No. C-150497, 2016-Ohio-5797, ¶ 15-17 (holding that "the legislature intended to
allow the juvenile court to bind over charges that are not mandatory-bindover offenses
along with those that are mandatory-bindover offenses as long as * * * the additional
charges arose from a common nucleus of operative facts as the offenses for which probable
cause was found").
{¶ 17} In In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, the Supreme Court law
regarding the standard of review for juvenile court probable-cause determinations,
concluded that "a juvenile court's probable-cause determination in a mandatory-bindover
proceeding involves questions of both fact and law," and concluded that appellate courts
must "defer to the trial court's determinations regarding witness credibility," but "review
de novo the legal conclusion whether the state presented sufficient evidence to demonstrate
probable cause to believe that the juvenile committed the acts charged." Id. at ¶ 51. The
Supreme Court further clarified the state's burden at a probable-cause bindover hearing:
"[T]he state must provide credible evidence of every element
of an offense to support a finding that probable cause exists to
believe that the juvenile committed the offense before
ordering mandatory waiver of juvenile court jurisdiction
pursuant to R.C. 2151.26(B) [now R.C. 2152.12(A)(1)(a)]. * * *
In meeting this standard, the state must produce evidence
that raises more than a mere suspicion of guilt, but need not
provide evidence proving guilt beyond a reasonable doubt."
(Emphasis sic.) Id. at ¶ 42, quoting State v. Iacona, 93 Ohio St.3d 83, 93 (2001).
No. 19AP-587 6
{¶ 18} Given the foregoing standards, the question presented by appellant's second
assignment of error is whether the state produced evidence of guilt as to every element of
the mandatory-bindover offenses. Appellant admits that there is probable cause that both
the crimes alleged in the complaint were committed but contends that there was
insufficient evidence of identity presented to establish probable cause.
{¶ 19} West testified at the probable-cause hearing: she stated that she saw and
spoke with appellant the day of the shootings, that appellant was the person who "started
shootin' " at both her and the car containing Waddell and Sharpe that day and identified
appellant in the courtroom. (May 31, 2018 Franklin C.P. No. 17JU-8946 Tr. at 45-47.)
West's testimony provided sufficient evidence to support the juvenile court's conclusion
finding probable cause that appellant committed the murder of Waddell and the attempted
murder of West herself. Accordingly, appellant's second assignment of error is overruled.
Assignment of Error No. 3: The trial court entered a
judgment of conviction for matters alleged in counts five and
six of the indictment that were still within the exclusive
jurisdiction of the juvenile court.
{¶ 20} In his third assignment of error, appellant observes that at the juvenile court
probable cause hearing, but prior to the juvenile court's order of bindover, the state
voluntarily dismissed the charges relating to Sharpe. See Id. at 80-81. He therefore argues
that those two charges were not transferred to the General Division of the Franklin County
Court of Common Pleas, and that the trial court lacked jurisdiction to enter convictions for
those charges.
{¶ 21} Under prior versions of the bindover statute, once a child was bound over for
one felony, he or she was treated as an adult for any other prosecutions. But that is no longer
the case. As the Supreme Court has observed:
In State v. Adams, 69 Ohio St.2d 120, 431 N.E.2d 326 (1982),
this court held that once a juvenile is bound over, the juvenile
is bound over for all future felonies. Id., syllabus. However,
the General Assembly expressly overruled this holding as
acknowledged in the legislative notes to R.C. 2151.011:
The General Assembly hereby declares that its purpose in
enacting the language in division (B) of section 2151.011 and
divisions (B) and (C) of section 2151.26 of the Revised Code
that exists on and after the effective date of this act is to
overrule the holding in State v. Adams (1982), 69 Ohio St.2d
No. 19AP-587 7
120 [431 N.E.2d 326], regarding the effect of binding a child
over for trial as an adult.
(Emphasis added.) Am.Sub.H.B. No. 1, Section 3(B), 146 Ohio
Laws, Part I, 1, 96.
In other words, in the wake of Adams, the General Assembly
prohibited juvenile courts from holding that once a juvenile
has been bound over to adult court, the juvenile will be bound
over in all future felonies. * * * According to statute then, a
juvenile court cannot bind over a juvenile on the sole basis
that the juvenile has been previously bound over.
(Emphasis added.) State v. D.W., 133 Ohio St.3d 434, 445-46, 2012-Ohio-4544, ¶ 45-46.
D.W. recognizes that the legislature overruled the first paragraph of the Adams syllabus,
which held in relevant part that "[o]nce a juvenile is bound over in any county in Ohio
* * * that juvenile is bound over * * * for future felonies he may commit." State v. Adams,
69 Ohio St.2d 120, 431 N.E.2d 326 (1982), paragraph one of the syllabus, abrogation
recognized by D.W. at ¶ 45-46.
{¶ 22} But appellant has not identified any specific caselaw holding that the juvenile
court must relinquish jurisdiction over all individual offenses that are part of the same case
and arise from a common nucleus of operative fact prior to those cases being indicted in
the common pleas court. Instead, he points to this court's decision in State v. Hubbard,
10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 79, in which we held that "[w]here a defendant
harms multiple individuals through the same course of conduct, and each offense charged
is defined in terms of conduct toward another, the offenses are of dissimilar import."
Appellant uses the holding of Hubbard as support for the contention that the juvenile court
was required to relinquish jurisdiction over the two offenses relating to Sharpe before he
could be indicted for those offenses.
{¶ 23} In response, the state argues that even after change in the statute, courts of
appeals have continued to apply the second syllabus paragraph of the Supreme Court's
decision in Adams, which provides:
When a minor is transferred from the Juvenile Court to the
Court of Common Pleas on a charge which would constitute a
felony if committed by an adult, the grand jury is empowered
to return any indictment under the facts submitted to it and is
No. 19AP-587 8
not confined to returning indictments only on charges
originally filed in the Juvenile Court.
Adams at paragraph two of the syllabus. The state points to State v. Barnette, 7th Dist. No.
02 CA 65, 2004-Ohio-7211, ¶ 33-39, reversed on other grounds, 109 Ohio St.3d 313, 2006-
Ohio-2109, observing that even following the statutory amendment, Ohio courts continue
to apply the holding of paragraph two of the syllabus of Adams, and that "[t]he
longstanding rule in Ohio is that upon transfer from juvenile court, the grand jury is
authorized to return a proper indictment on the facts submitted to it, and is not confined to
the charges originally filed in the juvenile court." See also State v. Weaver, 6th Dist. No. L-
18-1078, 2019-Ohio-2477, ¶ 14 (observing that other districts have determined "that a
grand jury has authority to include additional charges in the indictment, arising from the
same conduct at issue before the juvenile court * * * [but] may not consider additional
charges arising from different conduct or occurrences, absent proper bindover of those
crimes from juvenile court" and citing cases).
{¶ 24} Barnette addressed a defendant's challenge to his convictions for additional
indicted charges that were not transferred, even though all charges were based on the same
set of events and did not "involve any additional circumstances beyond those that were
under review in the juvenile court." Id. at ¶ 38. The Barnette court held that "the grand jury
was free to indict Appellant on charges arising out of those circumstances, even though the
juvenile court did not specifically transfer those charges when it bound the case over to the
general division of the court of common pleas." Id.
{¶ 25} This approach is sound and is consistent with the general principles and
statutory language of R.C. 2152.12(A)(1)(a)(i), providing that the juvenile court "shall
transfer the case" subject to mandatory bindover if there is probable cause presented.
(Emphasis added.) Compare Cockrell, 2016-Ohio-5797, at ¶ 15-17 (transferring additional
charges arising "from a common nucleus of operative facts as the offenses for which
probable cause was found"), and State v. R.D., 10th Dist. No. 13AP-847, 2014-Ohio-5100,
¶ 35-38 (distinguishing Adams and holding the General Division lacked jurisdiction to
enter a conviction on a case that a juvenile court did not relinquish jurisdiction over, even
though it held jurisdiction over a separately-filed case involving different facts but same
No. 19AP-587 9
juvenile defendant). The important issue regarding transfer is whether "there is probable
cause to believe that the child committed the act charged." R.C. 2152.12(A)(1)(a)(i).
{¶ 26} Given the language in Adams and D.W., as well as the general limitations on
juvenile court jurisdiction, this court must abide by the historic rule that the grand jury can
indict for any offenses arising from the same set of facts as the offense that was originally
bound over. And here, West's testimony at the bindover hearing that appellant shot both at
her and at the car containing Waddell and Sharpe provided sufficient probable cause to
conclude that appellant committed that act as well as the juvenile court's decision to
transfer jurisdiction to the common pleas court over the case flowing from that act. On these
facts, the general division had jurisdiction to indict and convict appellant for the attempted
murder and felonious assault of Sharpe, as that crime resulted from the same act as the
murder of Waddell and the attempted murder of West. Accordingly, appellant's third
assignment of error is overruled.
Assignment of Error No. 4: Appellant's rights to a fair trial
and to due process as guaranteed by the U.S. and Ohio
Constitutions were violated by the admission of hearsay
evidence and evidence precluded by Evidence Rule 403.
{¶ 27} Appellant's fourth assignment of error challenges West's statements in the
aftermath of the shooting that "David" shot her. He argues the statements are hearsay not
falling within any exception, see Evid.R. 801(C), and that therefore they should have been
excluded.
{¶ 28} We begin by noting that although the assignment of error as worded
challenges the statements based on relevancy under Evid.R. 403, the argument thereunder
does not address that issue. We must also observe that appellant trial counsel did not object
to this testimony at any point, meaning that he has forfeited all but plain error regarding
these statements. See Crim.R. 52 and State v. Barnes, 94 Ohio St.3d 21, 27 (2002) (holding
that the plain error doctrine justifies reversal only if: (1) there is error: (2) that is "plain" at
the time it was committed: and (3) that affected the defendant's substantial rights and
therefore the outcome of the proceeding).
{¶ 29} Under Evid.R. 803(2), a hearsay statement is admissible as an "excited
utterance" when it is "a statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition." The
No. 19AP-587 10
Supreme Court has long followed a four-part test for statements alleged to be excited
utterances. See, e.g., State v. Taylor, 66 Ohio St.3d 295, 300-01 (1993). To qualify under
the exception there must be: (1) a startling event; and (2) a statement relating to that event;
that is (3) made by a declarant with firsthand knowledge; and that is (4) made while under
the stress of the excitement caused by the event. See, e.g., State v. Jones, 135 Ohio St.3d 10,
2012-Ohio-5677, ¶ 166.
{¶ 30} Appellant argues that West was not "under the stress of the excitement
caused by the event" when she made her statements. He challenges West's statements to
her grandmother's neighbors, to the responding police, and to the detective who showed
her a photo array at the hospital, all on this same basis. He argues that West had driven at
least three blocks away from the scene of the crime at the time she first made any
statements, and by the time West made statements to her grandmother's neighbors and the
responding police, enough time had passed for the stress of the excitement caused by the
shooting to dissipate. Appellant also asserts that West's statements that "David" shot her
brother cannot be considered an excited utterance, because the shooting of West's brother
occurred in May 2017, two months before the shooting for which appellant was on trial.
{¶ 31} These arguments are not persuasive. First, we observe that West's statements
made in connection with her identification of Echols at the hospital were made "soon after
perceiving the person" under "circumstances [that] demonstrate the reliability of the prior
identification," and are therefore deemed "not hearsay" by rule, since West testified and
was subject to cross-examination. See Evid.R. 801(D)(1)(c). Compare State v. Nevins, 171
Ohio App.3d 97, 2007-Ohio-1511, ¶ 28-31. And second, insofar they relate to the claim that
"David" shot West's brother, her statements are not hearsay because they were not offered
for the truth of the matter asserted but rather for the purpose of identifying who shot West,
Waddell, and Sharpe. Evid.R. 801(C).
{¶ 32} But even assuming that West's statements made to witnesses and police
officers when they arrived on the scene were excludable hearsay, West and her boyfriend
had been shot minutes earlier, she was seriously injured, her boyfriend was dead, and the
shooter was at large and likely nearby. "There is no per se amount of time after which a
statement can no longer be considered to be an excited utterance. The central requirements
are that the statement must be made while the declarant is still under the stress of the event
No. 19AP-587 11
and the statement may not be the result of reflective thought." Taylor, 66 Ohio St.3d, at
303. See also Jones at ¶ 166.
{¶ 33} The decision to admit or exclude evidence lies in the sound discretion of the
trial court. See, e.g., State v. Sage, 31 Ohio St.3d 173, 180 (1987). It was well within the
court's discretion to allow West's statements as excited utterances. Moreover, as there was
no objection to these statements, appellant has failed to demonstrate the court's decision
was plain error. Appellant's fourth assignment of error therefore lacks merit and is
overruled.
Assignment of Error No. 5: The admission of other-acts
testimony and evidence violated Evidence Rules 403 and 404
and appellant's rights to due process and to a fair trial as
guaranteed by the United States and Ohio Constitutions.
{¶ 34} Appellant next asserts that West's statements that "David" was the "same
man who killed her brother" were improper other-act evidence that should have been
excluded under Evid.R. 404(B). The rule provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident. In criminal cases, the proponent of evidence to be
offered under this rule shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.
{¶ 35} West testified at trial without objection: (1) that her brother D'ante was killed
about two months before she was shot (June 26, 2019 Tr. Vol. II at 592); (2) that she had
placed a sticker on the back windshield of her car, which she was driving when she was shot,
that said "Rest in Peace, D'ante," id.; (3) that she believed "David" had something to do with
her brother being killed, id. at 595; (4) that she tried to find "David" on Facebook after
D'ante was killed and identified him as having listed his name as "RIP Loc," id. at 596; (5)
when she saw David on the day in question "[h]e said what's up to me, and I said what's up
back * * * [and] he started shooting," id. at 602-03; (6) that immediately afterward West
fled the area and saw her grandmother's neighbor, she told the neighbor that "me and my
boyfriend been shot and I felt like I was going to die and if I did could she please tell my
No. 19AP-587 12
grandmother who did it * * *. I told her David did it," id. at 609; and (7) identified "David"
in court as being the defendant David Echols. Id. at 611. West was then subjected to cross-
examination specifically about her claim that appellant shot her brother and admitted: (1)
that she did not know appellant's last name, did not know him, and had never been
introduced to him, id. at 624-26; (2) that she believed that her brother and appellant had
been friends but had a falling out, id. at 625; (3) that "some guy" told her that appellant was
paid to kill her and kill her brother, id.; (4) that she did not know why appellant would want
to shoot her, id. at 627; and (5) that she later identified appellant and his brother James to
police officers as being at the crime scene, id. at 630.
{¶ 36} Based on the foregoing, West's testimony and statements were relevant and
admissible to prove both the issue of appellant's motive to commit the shootings of West,
Waddell, and Sharpe, as well as to provide the basis for West's ability to identify appellant
as the person who shot her. Evid.R. 404(B). Therefore, appellant's only remaining
argument under the assignment of error is that all of West's statements to the effect that
"David * * * killed my brother" were used for impermissible purpose of showing that in
shooting West, Waddell, and Sharpe, appellant acted in conformity with his bad character.
{¶ 37} The state's closing argument does not mention the killing of D'ante at all. See
Tr. at 756-79. But D'ante is mentioned in appellant's closing argument, and the defense
crafted West's testimony about him into an argument undermining her credibility
identifying appellant as the person who shot her:
There is no reasonable explanation as to what [Echols']
motive would be, how they just happened to all be on Loretta
at the same time in the middle of the summer when most
people are wearing shorts and tank tops and that kind of stuff,
and he's got a great big gun supposedly that he pulls out and
starts shooting her. It makes no sense.
The only thing that makes sense is that her brother [D'ante] is
dead, she's been told that David killed him, and she needs
closure for that.
She's shot. She's upset. She believes that David killed her
brother, and that's what she says.
We don't know why. It doesn't make any sense. Here, there is
reasonable doubt.
No. 19AP-587 13
Id. at 784.
{¶ 38} The defense, in short, did not object to West's statements because it used
them to argue that her basis for identifying appellant as the shooter was an attempt to gain
what she believed to be justice for her brother's death. And, at no point during the trial did
either party delve into specifics regarding D'ante's death. Rather, it was addressed only in
passing, and only in the context of West's identification of appellant as the person who shot
her, Waddell, and Sharpe. Given the limited nature and vague substance of West's
statements, there was no basis for the trial court to exclude that evidence under Evid.R.
404(B).
{¶ 39} Appellant also contends in passing that one of the officers, during the playing
of bodycam video, stated that he matched an alleged Facebook photo of "David" to
" 'mugshots' of Echols," and that this reference and another use of the term "mugshots"
during the sixteen-minute video footage constituted additional forbidden other-act
evidence. But the parties agreed to the video presentation, and no objections were raised to
it. Even if playing the unredacted video was somehow erroneous, fleeting references to
"mugshots" do not constitute plain error, and given the context presented were
undoubtedly harmless. Appellant's fifth assignment of error is overruled.
Assignment of Error No. 6: Appellant was deprived of the
effective assistance of trial counsel in violation of appellant's
rights under the Sixth and Fourteenth Amendments to the
United States Constitution and Section 10 and 16, Article I of
the Ohio Constitution.
{¶ 40} In order to obtain a reversal on appeal for ineffective assistance of counsel, a
defendant must demonstrate both that defense counsel's performance was deficient, and
that counsel's deficient performance prejudiced the defense. See generally Strickland v.
Washington, 466 U.S. 668, 686 (1984). In assessing claims of counsel's deficiency, "a court
must indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be considered sound trial
strategy.' " Id. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). And in
evaluating whether the challenged action caused prejudice, the court must find that
No. 19AP-587 14
counsel's error was so serious that there is a reasonable probability it affected the outcome
of the trial. See, e.g., State v. Bradley, 42 Ohio St.3d 136 (1989).
{¶ 41} Appellant asserts several deficiencies with defense counsel's performance.
First, he argues that defense counsel failure to challenge a juror; second, he contends that
counsel failed to object to West's hearsay and other-acts evidence and that defense counsel's
cross-examination of witnesses relating to that evidence was ineffective; third, he asserts
that defense counsel failed to object to leading questions and permitted speculative and
inadmissible statements from the bodycam video regarding the strength of West's
identification of appellant; and finally, he suggests that the cumulative effect of all these
deficiencies resulted in him being denied a fair trial.
{¶ 42} Most of appellant's claimed issues recapitulate arguments raised in other
assignments of error. As we have observed in discussing his fifth assignment of error, the
admission of testimony regarding West's belief that appellant killed her brother was part of
a strategy by trial counsel to undermine her identification of appellant as the person who
shot West, Waddell, and Sharpe. Similarly, the passing statements in the video regarding
the progress of the investigation and identification of appellant, were harmless and did not
prejudice appellant's defense, as both West and the officers testified at trial and were
subject to cross-examination on these statements, and cross-examination clarifying and
highlighting the fact that West was the ultimate source of all of the identification evidence
that pointed toward appellant.
{¶ 43} Appellant raises one new issue in this assignment of error, arguing that Juror
No. 10 should have been excused for cause. Good cause exists for the removal of a
prospective juror when "he discloses by his answers that he cannot be a fair and impartial
juror or will not follow the law as given to him by the court." State v. Maxwell, 139 Ohio
St.3d 12, 2014-Ohio-1019 ¶ 94. And where "jurors demonstrate during voir dire that they
are able to remain fair and impartial, no action will lie for ineffective assistance of counsel
for not seeking their removal." State v. Bofia, 3d Dist. No. 07-03-12, 2004-Ohio-3018, ¶ 14.
See also Crim.R. 24(C)(9) ("no person summoned as a juror shall be disqualified by reason
of a previously formed or expressed opinion with reference to the guilt or innocence of the
accused, if the court is satisfied, from the examination of the juror or from other evidence,
No. 19AP-587 15
that the juror will render an impartial verdict according to the law and the evidence
submitted to the jury at the trial.")
{¶ 44} During a break in voir dire, Juror No. 10 indicated to the court bailiff that
some of the witness names sounded familiar. As a result, the trial court individually
questioned the juror, who indicated he "knew some of the older people by their last names"
and he "might know their kids," and that knowing them might affect his ability to serve
"because I was close to the ones who came up with me." (June 24, 2019 Tr. Vol. I. at 83-
84.) But the juror ultimately confirmed that he did not believe he knew any of the witnesses
in this case, and that he believed he could be impartial even if he did know them. Id. at 140-
41. On questioning from defense counsel, the juror stated that he considered himself to be
an "11" on a scale of 1 to 10 regarding open-mindedness. Id. at 230. Defense counsel did not
question the juror further regarding potential bias. Defense counsel did not challenge Juror
No. 10 for cause and passed on the use of counsel's final peremptory challenge. Id. at 257.
{¶ 45} Appellant argues that because another juror was excused for cause after she
stated she lived in the neighborhood and knew about the crime, knew Waddell's family, and
was aware of the alleged perpetrators from social media, see Tr. at 248-55, that Juror No.
10 should also have been excused for cause. But neither his answers during voir dire nor his
actions during the trial demonstrate anything like the suggestion that Juror No. 10 would
not render an impartial verdict, and his general familiarity with the area of the alleged
crimes and the families who lived in that neighborhood does not itself demonstrate bias. In
fact, if anything, he demonstrated and averred that he was extremely open to persuasion
about evidence and the credibility of witnesses. See, e.g., Tr. at 140-47. Given his answers,
there is nothing in the record upon which this court concludes it was prejudicial for the
juror to remain in the venire, and counsel was not ineffective for failing to seek his removal
for cause or by using a peremptory challenge.
{¶ 46} Appellant also suggests that Juror No. 10 may have fallen asleep at points
during trial. The state admits that following some testimony with the lights dimmed for
photographs, there was a concern voiced by the court that "one of the jurors is like nodding
in and out of sleep, and so I wanted to turn the lights on for a moment." Id. at 462. The
juror was not identified at that time, but on the next day, the following exchange occurred:
No. 19AP-587 16
MR. SCHOTT: Your Honor, can we approach with the lights
on, please?
THE COURT: Sure.
***
Thereupon, the following proceedings were held at the bench
with the Court and Counsel outside the hearing of open
court:
***
MR. MANNING: Just so the Juror No. 10 wakes up.
THE COURT: Oh.
MR. MANNING: I just wanted to take a break with the white
noise and the lights just to make sure everybody through this
testimony is good.
THE COURT: Is it the same one as yesterday?
MS. KAISER: Yes.
MR. SCHOTT: (Inaudible) voir dire. I don't know what
happened.
MS. KAISER: My client has noticed every day.
THE COURT: Okay.
MR. SCHOTT: I'll note he was awake for Ms. West's
testimony but - -
THE COURT: He's been awake all morning.
MR. SCHOTT: Yeah. So hopefully it's - -
No. 19AP-587 17
THE COURT: He's good. Thanks.
(June 26, 2019 Tr. Vol. III at 665-66.) Accordingly, there is some equivocal indication
that Juror No. 10 may have dozed off on two occasions, but it appears that both trial
counsel and the court took steps to address the issue as soon as it was observed.
{¶ 47} On appeal, appellant has not argued that his trial counsel was ineffective for
failing to seek a mistrial based on this issue. And given the state of the record, we cannot
say that this evidence, on its own, constitutes a sufficient basis for the juror's removal. And
certainly, the possibility that Juror #10 dozed off during trial cannot be used as retroactive
support for a claim that defense counsel was ineffective for failing to seek Juror No. 10's
removal for cause before it even happened.
{¶ 48} Finally, appellant argues that all these instances of alleged deficient
performance, when taken together, create a reasonable probability had they not occurred
that the outcome of the trial would have been different. As support, he cites State v.
DeMarco, 31 Ohio St.3d 191 (1987), which recognizes the doctrine of "cumulative harmless
error." But to accept his argument, this court would be required to extend DeMarco—
holding that the cumulative effect of several instances of harmless error is prejudicial is not
equivalent to holding that the cumulative effect of several instances of alleged deficient
performance create a reasonable probability of a different outcome at trial. Appellant has
provided no support for extending DeMarco in this fashion. Moreover, he has failed to
show that counsel's performance was in fact deficient in any of the ways he asserts,
rendering this portion of his argument a nullity.
{¶ 49} Accordingly, appellant's sixth assignment of error lacks merit and is
overruled.
Assignment of Error No. 7: The trial court violated
appellant's rights to due process and a fair trial when it
entered a judgment of conviction based on insufficient
evidence and against the manifest weight of the evidence in
violation of appellant's rights under the United States and
Ohio Constitutions.
{¶ 50} Appellant's seventh assignment of error asserts that his conviction was not
supported by sufficient evidence and was against the manifest weight of the evidence. In
addressing sufficiency claims, the Supreme Court held that "[t]he relevant inquiry is
No. 19AP-587 18
whether, after viewing the evidence in a 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. Jenks, 61 Ohio St.3d 259, (1991), paragraph two of the syllabus
(1991), following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). A different
analysis is involved when addressing a claim that a conviction is against the manifest weight
of the evidence—an appellate court considering a manifest weight challenge "may not
merely substitute its view for that of the trier of fact, but must review the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of 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 conviction must be reversed and
a new trial ordered." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins, 78 Ohio St3d 380, 387 at 387.
{¶ 51} Appellate courts should reverse a conviction as being against the manifest
weight of the evidence only in the most " 'exceptional case in which the evidence weighs
heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983). Determinations of credibility and weight of the testimony
are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one
of the syllabus. The factfinder may take note of inconsistencies at trial and resolve them
accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver, 10th
Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
Therefore, "[w]hen a court of appeals reverses a judgment of a trial court on the basis that
the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth
juror' and disagrees with the factfinder's resolution of the conflicting testimony." State v.
Thompkins at 387 (1997), superseded by constitutional amendment on other grounds,
quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982).
{¶ 52} We reject both claims here, as West's testimony and identification alone of
appellant provided evidence sufficient to support his conviction as to all of the offenses.
Appellant himself has acknowledged that all of the elements of murder, attempted murder,
and felonious assault were present in this case—ultimately, he simply challenges his
identification by West. But her testimony was sufficient to show his identity, and given the
additional testimony of other witnesses, including the neighbors and the police, this is not
No. 19AP-587 19
a case where the jury lost its way or where the evidence weighed strongly against conviction.
Appellant has not shown that his convictions were unsupported by sufficient evidence or
were against the manifest weight of the trial evidence. His seventh assignment of error is
therefore meritless and is overruled.
Assignment of Error No. 8: The trial court erred and
abused its discretion in imposing consecutive sentences on
three firearm specifications.
{¶ 53} Appellant admits that given the jury's verdict, the trial court was required to
impose sentences for two of the three charged gun specifications and run those sentences
consecutively under R.C. 2929.14(B)(1)(g). In this assignment of error, appellant argues
that the trial court erred by imposing a sentence for the third gun specification and running
that sentence consecutively as well.
{¶ 54} In relevant part, R.C. 2929.14(B)(1)(g) provides:
[I]f the offender is convicted of or pleads guilty to a
specification of the type described under division (B)(1)(a) of
this section [including firearm specifications as described in
section 2941.141, 2941.144, or 2941.145 of the Revised Code]
in connection with two or more of the felonies [of conviction],
the sentencing court shall impose on the offender the prison
term specified under division (B)(1)(a) of this section for each
of the two most serious specifications of which the offender is
convicted or to which the offender pleads guilty and, in its
discretion, also may impose on the offender the prison term
specified under that division for any or all of the remaining
specifications.
{¶ 55} The statute clearly provides that the sentencing court "in its discretion, also
may impose on the offender the prison term specified under that division for any or all of
the remaining specifications." (Emphasis added.) Id. At the sentencing hearing, the state
specifically indicated to the trial court "by law only two of [the firearm specifications] must
have been run consecutively. The third would have been discretionary." (Aug. 14, 2019 Tr.
at 25.) In response, the trial court stated that it had "exercised discretion and determined
that consecutive sentences were appropriate for all of those reasons." Id.{¶ 56} Appellant has not provided this court any basis in the record or otherwise to
suggest that the trial court's decision was an abuse of discretion; instead, he simply reargues
his third assignment of error and contends that the charges arising from the shooting of
No. 19AP-587 20
Sharpe remain in the exclusive jurisdiction of the juvenile court, adding only that West
admitted that she never specifically saw appellant's firearm. But, we are unable to conclude
that either of these arguments show an abuse of discretion on the part of the trial court in
imposing a consecutive sentence for the third firearm specification. The eighth assignment
of error is accordingly overruled.
Assignment of Error No. 9: The imposition of an
indefinite prison sentence of 15 years to life for murder
violated the Eighth Amendment to the United States
Constitution.
{¶ 57} In his ninth and final assignment of error, appellant contends his sentence
for murder violates the Eighth Amendment as cruel and unusual punishment as he was 17
at the time of the shooting. But unlike the cases he cites in support of his argument,
appellant did not receive a sentence of life without parole. In State v. Wade, 10th Dist. No.
19AP-350, 2020-Ohio-5399, interpreting the same cases that appellant cites here, this
court affirmed the imposition of an effective life without parole sentence upon a defendant
who was 16 at the time of the homicides in question:
Long, Miller, Montgomery and Wade I do not require
sentencing courts to reject life sentences for juvenile offenders
convicted of homicide; they simply require trial courts to
account for the youth of juveniles as a mitigating factor when
sentencing for murder. Here, the trial court specifically stated
that it had evaluated the defendant's youth and determined
that an effective life without parole sentence of 172 1/2 years
to life was appropriate punishment. We do not believe that
caselaw required the trial court to do more than that, even if
it would be a better practice to do so. Accordingly, we conclude
that the trial court did not err in its sentence, and that Wade's
rights under the U. S. Constitution and the Ohio Constitution
to be free of cruel and unusual punishment were not violated.
Id. at ¶ 8. Here, appellant argues that the principles enunciated in Montgomery v.
Louisiana, 577 U.S. 190 (2016) and Miller v. Alabama, 567 U.S. 460, 465 (2012), both of
which we reviewed in Wade, apply to preclude "automatically" sentencing a juvenile like
appellant to 15 years to life with eligibility for parole, and contends that this constitutes
plain error under Crim.R. 52(B). But the lack of eligibility for parole is the crux upon which
Montgomery and Miller turn, and by the plain terms of his sentence, appellant is
automatically eligible for parole after a period of no more than 30 years. Moreover, when
No. 19AP-587 21
sentencing appellant, the trial court specifically stated that it was "mindful of Miller versus
Alabama" and further that "Mr. Echols was 17 when he committed these offenses * * *."
(Aug. 14, 2019 Tr. at 20.) Accordingly, appellant cannot demonstrate any error in his
sentence, and his ninth assignment of error is overruled.
{¶ 58} For all these reasons, appellant's nine assignments of error are overruled, and
the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN, P.J., and SADLER, J., concur.