State v. Travis , 2020 Ohio 628 ( 2020 )

[Cite as State v. Travis, 2020-Ohio-628.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2018-T-0101
- vs - : 2018-T-0102
HAROLD TRAVIS, JR., :
Defendant-Appellant. :
Criminal Appeals from the Trumbull County Court of Common Pleas, Case Nos. 2015
CR 00161 and 2016 CR 00580.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
David Cripps and Phillip Comorski, 1300 Broadway Street, Suite 800, Detroit, MI 48226;
and Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For
Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Harold Travis, Jr., appeals from the November 9, 2018 Entry on
Sentence of the Trumbull County Court of Common Pleas sentencing him to a total term
of 36 years imprisonment. For the reasons that follow, we affirm.
{¶2} The initial underlying case originated as Case No. 2015 CRA 00405, in
which appellant was indicted on five counts: (1) Felonious Assault, a felony of the second
degree, in violation of R.C. 2903.11(A)(1)&(D)(1)(a); (2) Kidnapping, a felony of the first
degree, in violation of R.C. 2905.01(A)(1)&(C)(1); (3) Kidnapping, a felony of the first
degree, in violation of R.C. 2905.01(A)(3)&(C)(1); (4) Extortion, a felony of the third
degree, in violation of R.C. 2905.11(A)(4)&(B); and (5) Having Weapons While Under
Disability, a felony of the third degree, in violation of R.C. 2923.13(A)(3)&(B). These
events were alleged to have occurred in February 2015 on Elm Road in Warren, Ohio
against appellant’s wife, Shateara Frank Travis. Appellant pleaded not guilty.
{¶3} While the first case was pending, appellant was charged, in Case No. 2016-
CR-580, with three new counts: (1) Felonious Assault, a felony of the second degree, in
violation of R.C. 2903.11(A)(1)&(D)(1)(a); (2) Kidnapping, a felony of the first degree, in
violation of R.C. 2905.01(A)(3)&(C)(1); and (3) Abduction, a felony of the third degree, in
violation of R.C. 2905.02(A)(2)&(C). These events were alleged to have occurred in
February 2016 on Douglas Street in Warren, Ohio against Jeremy McMahan and
Shannon Johnson. Appellant pleaded not guilty. Appellant’s counsel stipulated to the
consolidation of the cases for trial and the court journalized the stipulation and
consolidated the cases. The counts were ultimately renumbered as one continuous list
of charges.
{¶4} The case proceeded to trial, where the jury ultimately found appellant guilty
of Count 1, Felonious Assault of Shateara Frank Travis; Count 3, Kidnapping of Shateara
Frank Travis; Count 5, Having Weapons While Under Disability; Count 6, Felonious
Assault of Jeremy McMahan; Count 7, Kidnapping of Jeremy McMahan; and Count 8,
Abduction of Shannon Johnson.
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{¶5} The court sentenced appellant to seven years for the Felonious Assault of
Shateara and 10 years for the Kidnapping of Shateara, to be served consecutively for a
term of 17 years. Additionally, the court sentenced appellant to seven years for the
Felonious Assault of Jeremy and 10 years for the Kidnapping of Jeremy, to be served
consecutively to each other for a term of 17 years. For the Abduction of Shannon, the
court sentenced appellant to a 24-month term. And for Having Weapons Under Disability,
the court sentenced appellant to a 24-month term. The two terms of 17 years and the 24-
month sentence on the Abduction count are to run consecutively, while the 24-month term
for Having Weapons Under Disability is to run concurrently. In all, appellant was
sentenced to a total term of imprisonment of 36 years.
{¶6} Appellant filed two notices of appeal, assigned Case Nos. 2018-TR-101 and
2018-TR-102, which this court sua sponte consolidated. He assigns five errors for our
review. Appellant’s first assignment of error states:
{¶7} The evidence was insufficient to support the convictions against
appellant with respect to the kidnapping, felonious assault, having
weapons while under disability, and abduction charges.
{¶8} “A ‘sufficiency’ argument raises a question of law as to whether the
prosecution offered some evidence concerning each element of the charged offense.”
State v. Swiggett, 11th Dist. Trumbull No. 2017-T-0003, 2017-Ohio-8203, ¶9, citing State
v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “‘[T]he proper inquiry
is, after viewing the evidence most favorably to the prosecution, whether the jury could
have found the essential elements of the crime proven beyond a reasonable doubt.’”
Swiggett, supra, quoting State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9 (11th
Dist.).
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{¶9} The testimony and evidence presented at trial shows the following facts
related to Counts 1 through 5. Nyiesha Frank, the mother of Shateara, testified that
appellant and Shateara are married and have one child together, but that their marriage
was “rocky,” and they had been living apart for some time. Appellant confirmed he and
Shateara were not living together at the time of the incidents in question. Around
February 14, 2015, Nyiesha was uncharacteristically unable to get in contact with
Shateara. Around the same time, she testified that appellant contacted her stating his
“bag” was missing and threatened to cut off Shateara’s fingers unless Nyiesha produced
$5,000. The police were contacted on February 23, 2015, and officers were dispatched
to conduct a welfare check at appellant’s house on Elm Road. No one answered and the
police left.
{¶10} On February 24, 2015, Shateara knocked on the door of Keri Bellay, who
let her inside. Ms. Bellay testified that Shateara was crying, panicky, breathing heavily,
badly bruised, carrying her infant child, and that neither were properly dressed for the
weather. Ms. Bellay called 9-1-1 and handed the phone to Shateara. Ms. Bellay testified
that she heard Shateara talk with the 9-1-1 operator; the 9-1-1 call was entered into
evidence. Shateara told the operator she was held against her will at her husband’s
house for approximately two weeks, that he had beaten her up, and that she was able to
escape when he left to go to court. The operator asked her why she did not yell out when
police conducted the welfare check the day prior, and she stated he threatened her to
stay quiet with a gun.
{¶11} The police arrived at Ms. Bellay’s residence. Responding officers testified
that Shateara was manic and hectic, crying, and had multiple injuries. She provided a
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statement, in which she reiterated that she was held against her will at her husband’s
house, that he beat her up, and threatened her and her family with a gun. Shateara was
taken away in an ambulance.
{¶12} On February 25, 2015, an arrest warrant was executed at appellant’s
residence on Elm Road. Appellant was found hiding alone in the upstairs attic and was
arrested. The following day, Warren Police executed a search warrant at appellant’s
residence and found loose and boxed ammunition for handguns and rifles. They also
found a loaded, operable shotgun in the attic where appellant was found. Officers also
collected a video surveillance system and portable hard drive of the videos. However,
the cameras were not synched, did not display accurate dates and times, did not record
non-stop, and had various blocks of time missing.
{¶13} Detective Mackey conducted a follow-up interview with Shateara on
February 26, 2015, at which time she showed him a conversation between her and
appellant on Facebook, in which they discuss their child and the incident in question.
Appellant confirmed that was his Facebook account but asserted that other people had
his password. The messages appear to show appellant responding to Shateara, “I know
I f ***ed up and I know how and I don’t know how to make it right,” and “trust me, I know
what I did and why you feel the [sic] way.” When Shateara told appellant she had a
cracked rib and concussion, and appellant responded, “I swear it was out of anger and
hurt * * * yeah I did all that.”
{¶14} Shateara was declared an unavailable witness and her preliminary hearing
testimony was read to the jury. At the preliminary hearing, she testified that in February
2015 when she went to drop off an individual at appellant’s residence, he approached her
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with a gun and forced her into the home. She testified that he accused her of stealing
money from him, beat her, threatened her and her family, and held her against her will for
about two weeks, until she was able to get away.
{¶15} The testimony and evidence presented at trial shows the following facts
related to Count 6 through 8. Jeremy McMahan and Shannon Johnson both testified at
trial that they were in a relationship in early 2016, and that they were both heroin addicts.
Their heroin dealer was appellant’s father, Harold Travis, Sr., with whom they resided in
exchange for running drugs and errands, and taking care of Harold Travis, Sr., who had
limited mobility and other health conditions. It was there that they met appellant. Jeremy
and Shannon also visited appellant’s home; Jeremy would sometime help by cleaning up
after appellant’s dogs.
{¶16} At one point, a necklace disappeared from appellant’s house. Shannon and
Jeremy testified that appellant accused them of stealing it and assaulted Jeremy. When
the necklace was found behind a dresser a few days later, appellant apologized and gave
them crack and heroin. Later, in July 2016, appellant again accused them of stealing;
this time, some of appellant’s father’s prescription pills were missing. Appellant, and
others at appellant’s father’s house, again assaulted Jeremy. Jeremy was able to flee
the residence and called the police. He reported that Shannon was being held against
her will at appellant’s father’s house on Douglas Street. The police arrived removed
Shannon, who told them she was afraid of being beaten or killed. Shannon and Jeremy
obtained a voucher for a motel but left later that evening to go get food. While driving
around town, they encountered appellant and others with him in a white car and were
shown a gun and ordered back to appellant’s father’s house. Shannon, who was driving,
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unsuccessfully attempted to evade them. Once at the residence, Jeremy tried to walk
away but was forced into the house.
{¶17} Jeremy and Shannon testified that once inside, appellant, his father, and
the other individuals began to beat, choke, and prod Jeremy with a screwdriver. Shannon
was made to punch Jeremy in the face. In the evening, Jeremy was able to jump through
a window and ran to his aunt’s house, where he called the police. Around midnight,
Warren Police again went to appellant’s father’s house. They found Shannon in the
house, who, upon being assured the officers could ensure her safety, stated she was held
against her will. She provided a statement, in which she also confirmed they were forced
into the home, and that appellant and others assaulted Jeremy.
{¶18} Appellant took the stand and testified that he was not at his father’s house
at all on the day in question. However, appellant was under house arrest during the time,
and wore an ankle bracelet which sent a radio signal with his location so long as he was
within 150 feet of the receiver located at his residence on Elm Road. During July 12 to
July 14, 2016, on the dates and around the times Jeremy and Shannon said they
encountered appellant, several instances were logged where appellant left his residence
without authorization.
{¶19} Additionally, while appellant was in jail, he began talking to a fellow inmate,
Joel White. After pleading guilty to unrelated charges, Mr. White contacted the
prosecutor’s office in July 2018 to provide information he had regarding appellant’s
pending cases. He stated he received no deals, representations, or promises of leniency
in his criminal case in exchange for his cooperation in this matter. Mr. White testified that
appellant mentioned he was getting victims to change their statements and lie in order to
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“beat” his case, and that appellant had Shateara write letters contradicting her original
statements. He also testified that appellant admitted to holding Shateara at his house for
a couple of weeks, that he “dogged” her a little, which Mr. White understood to mean
assaulted her, and that she was leaving the state to avoid being subpoenaed. Mr. White
also testified that appellant told him he was charged with “a gun specification” because
they found his gun in the attic. Additionally, Mr. White testified that appellant told him he
beat Jeremy for stealing prescription pulls and kept him hostage on at least two
occasions, but that he had escaped, and that appellant had someone give Jeremy drugs
to overdose on.
{¶20} On appeal, appellant argues that while there was some evidence presented
to support his convictions, “the evidence as a whole was constitutionally insufficient to
prove the essential elements.”
{¶21} In addressing his sufficiency argument, we take each of appellant’s
convictions in turn. First, appellant was convicted of Having Weapons While Under
Disability, in violation of R.C. 2923.13, which states:
{¶22} (A) Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any
firearm or dangerous ordnance, if any of the following apply:
{¶23} * * *
{¶24} (3) The person is under indictment for or has been convicted of any
felony offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse or has
been adjudicated a delinquent child for the commission of an offense
that, if committed by an adult, would have been a felony offense
involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse.
{¶25} Appellant does not dispute the evidence concerning the underlying
elements of this conviction but only disputes the issue of his identity as to the conviction.
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He argues a rational trier of fact could not have found that appellant was the person who
put the gun in the attic, because he asserts that he was not the last person to be seen
where the gun was found and that the state presented no evidence that appellant was
anywhere near the area where the gun was found.
{¶26} However, the arresting officers testified that appellant was found hiding,
alone, in the attic of his own residence. Contrary to appellant’s assertion that he was not
anywhere near the shotgun, the next day officers found the shotgun within four to five feet
of the opening of the attic; it was not hidden or covered and had no dust or dirt on it.
Moreover, his fellow inmate testified that appellant admitted to him that police had found
his gun. Viewing the evidence most favorably to the prosecution, the jury could have
found that it was appellant who as in possession of the shotgun beyond a reasonable
doubt.
{¶27} Appellant was also convicted of Kidnapping and Felonious Assault against
Shateara and Jeremy, in violation of R.C. 2905.01(A)(3) and R.C. 2903.11(A)(11),
respectively.
{¶28} R.C. 2905.01(A) states:
{¶29} (A) No person, by force, threat, or deception, or, in the case of a
victim under the age of thirteen or mentally incompetent, by any
means, shall remove another from the place where the other person
is found or restrain the liberty of the other person, for any of the
following purposes:
{¶30} * * *
{¶31} (3) To terrorize, or to inflict serious physical harm on the victim or
another * * *.
{¶32} R.C. 2903.11(A) states “[n]o person shall knowingly * * * [c]ause serious
physical harm to another * * *.
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{¶33} In regard to Shateara, appellant argues that the state did not present any
evidence of a purpose to terrorize or inflict serious physical harm, and that there was no
evidence of physical harm to Shateara by appellant, since Shateara did not testify at trial
and Nyiesha’s testimony was hearsay. However, the State presented the testimony of
Shateara from the preliminary hearing, in which she identified appellant as her husband
and the person who held her against her will and assaulted her. The State also presented
the Facebook conversation between Shateara and appellant in which appellant appears
to admit he caused Shateara’s broken rib and concussion. Additionally, the State offered
the medical records from Shateara’s hospital visit, which states: “[patient] states held in
house and beatten [sic] by husband for past 2 wks * * * states was hit and kicked by
husband several times past 2 wks.” Pictures of Shateara’s injuries were also submitted.
From this, the jury could reasonably conclude it was appellant’s intent to terrorize or inflict
serious physical harm on Shateara, and that he did, in fact, do so. Thus, the State
presented sufficient evidence of each of the essential elements of Kidnapping and
Felonious Assault against Shateara.
{¶34} In regard to Kidnapping Jeremy, appellant argues the state did not show
evidence of a purpose to terrorize or to inflict serious physical harm to Jeremy or restrain
him from leaving. And in regard to the Felonious Assault of Jeremy, appellant seems to
argue that he could not have “knowingly caused” his injuries because they resulted from
the actions of other individuals. However, Jeremy testified that appellant was the one
who ordered him and Shannon to return to his father’s house by showing them a gun. He
stated that once at appellant’s father’s house, he attempted to walk away but that
appellant and the others with him surrounded him and made him go into the house. The
10
prosecutor asked him if he went into the house of his own freewill and he responded “not
really * * * I didn’t want to.” Furthermore, he testified that as soon as he entered the
house, appellant and others began to assault him. Shannon also testified that
immediately after being forced in the house, appellant and others began to assault
Jeremy. Shannon and Jeremy both testified that they tried to get away from appellant
and his father’s house because they feared being beaten or killed after being accused of
stealing from appellant and his father. Furthermore, the State entered pictures of
Jeremy’s injuries and the medical records from his related hospital visit. The jury could
reasonably conclude from this evidence that appellant’s intent was to return Jeremy to
his father’s house in order to terrorize or inflict serious physical harm to him, and that he
did, in fact, cause such harm. Thus, there was sufficient evidence of each of the essential
elements of Kidnapping and Felonious Assault against Jeremy.
{¶35} Finally, appellant was convicted of the Abduction of Shannon in violation of
R.C. 2905.02(A)(2), which states: “[n]o person, without privilege to do so, shall knowingly
* * * (2) [b]y force or threat, remove another from the place where the other person is
found.” Appellant argues that the state did not present any evidence of force or threat,
but that the testimony only alleges appellant and others showed them a gun and asked
them to follow them back to the residence. However, Jeremy testified:
{¶36} [Jeremy:] I was forced to go back to Douglas Street.
{¶37} [Prosecutor:] How were you forced to go back to Douglas Street?
{¶38} [Jeremy:] They kept going up next to us, showing us guns, and telling
us to go to his dad’s house.
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{¶39} Similarly, Shannon testified that appellant was the one holding the gun and
told them to go back to the house on Douglas Street. She testified that she tried to outrun
them and get away by going down side roads.
{¶40} [Shannon:] They pulled up behind me and I knew that we weren’t
going to get away. And at that point in time, I—I don’t know why I
didn’t think of it to call the cops or instead drive to the police station
like I should have but I followed them.
{¶41} Shannon also testified that once they arrived at the house:
{¶42} [Shannon:] Me and Jeremy reluctantly got out of the car. * * * Harold
Travis, Jr., and the other two guys got out of the car and came up
front to where we were parked and made sure that we walked inside
of the house through the side door.
{¶43} * * *
{¶44} [Prosecutor:] And you did not go back to the house – you did not go
into the house voluntarily?
{¶45} [Shannon:] No.
{¶46} By showing a gun and telling them to return to the house, and by not
allowing Shannon to evade them, a rational jury could find that appellant forced or
threatened Shannon to return to appellant’s father’s house. Thus, the State presented
sufficient evidence of each of the essential elements of the Abduction of Shannon.
{¶47} In light of the foregoing, appellant’s first assignment of error is without merit.
{¶48} Appellant’s second assignment of error states:
{¶49} Appellant’s convictions are against the manifest weight of the
evidence.
{¶50} A court reviewing the manifest weight observes the entire record, weighs
the evidence and all reasonable inferences, considers the credibility of the witnesses and
determines 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
12
reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
The role of the reviewing court is to engage in a limited weighing of the evidence in
determining whether the state properly carried its burden of persuasion. Id. at 390. If the
evidence is susceptible to more than one interpretation, an appellate court must interpret
it in a manner consistent with the verdict. State v. Banks, 11th Dist. Ashtabula No. 2003-
A-0118, 2005-Ohio-5286, ¶33. “‘The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.’” Thompkins, supra, quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st.Dist. 1983).
{¶51} Appellant argues that the inconsistencies are so numerous that they are
impossible to list and that the only evidence linking appellant to the crimes charged was
testimony from Shannon and Jeremy, who he purports are not trustworthy, and Joel
White, whose motives are suspect.
{¶52} However, as discussed under the first assignment of error, the State
presented, contrary to appellant’s assertion, evidence of each element of the crime for
which appellant was convicted. And after a thorough review of all the evidence, we find
appellant’s conviction was not against the manifest weight of the evidence.
{¶53} The various inconsistencies that appellant complains of are largely based
on the differing testimony of appellant versus the other witnesses. However, it is well
established that “the weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus. Moreover, many inconsistencies were countered by other
evidence or testimony. For example, appellant asserted he was not at his father’s house
13
on the day which Jeremy was assaulted. However, his house arrest ankle monitor
showed he was not at home without authorization. Additionally, the jury heard a phone
conversation between Jeremy and appellant, after appellant had been arrested, in which
Jeremy states the police got his testimony wrong and that he didn’t say anything against
appellant. At trial, however, Jeremy testified that he was lying to appellant on the phone
“because [his] life is important to [him].”
{¶54} As for the untrustworthiness of Shannon, Jeremy, and Joel, we reiterate that
is a matter for the jury to decide. And in light of the evidence, it was not unreasonable for
the jury to believe these witnesses. First, the only criticism appellant makes in support of
Shannon and Jeremy’s untrustworthiness was that they were drug addicts. However, the
use of drugs does not automatically equate to untrustworthiness. Second, the prosecutor
and defense counsel thoroughly examined and cross-examined Joel to ascertain his
motives. He had signed a plea agreement before contacting the prosecutor about this
case. Furthermore, he testified that he was never told by anyone to talk to appellant
about his case. He stated that he testified without any promises of leniency in his own
case; only that the prosecutor at his own sentencing would say that he cooperated and
testified in this case. Instead, Joel testified he began to resent appellant’s actions
because his brother had recently died of an overdose. Finally, although Joel was in jail
on drug related charges, he noted that his drug related activities happened before his
brother died and that the drugs were Suboxone, which is intended to help the user get off
heroin.
{¶55} Finally, appellant argues that Nyiesha’s testimony that appellant was the
one who caused Shateara’s injuries was hearsay because Shateara did not testify at trial.
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Contrary to his assertion, however, this was not the only evidence of Shateara’s assailant
entered into evidence. Any error in this regard is harmless as the state properly entered
into evidence Shateara’s preliminary hearing testimony, in which she identified appellant
as her assailant, and her medical records, in which she states that her husband was her
assailant.
{¶56} In light of the foregoing, we cannot say that the jury clearly lost its way in
finding appellant guilty; the evidence does not weigh heavily against the convictions.
Appellant’s second assignment of error is without merit.
{¶57} Appellant’s third assignment of error states:
{¶58} The trial court erred by denying appellant’s motion for severance of
the indictments.
{¶59} At pre-trial in February 2017, the state, appellant, and appellant’s counsel
discussed consolidation of the two criminal cases for the purposes of trial. Appellant’s
counsel withdrew and new counsel filed a notice of appearance. New counsel and the
state again discussed consolidation of the two criminal cases. On June 12, 2017,
appellant’s new counsel stipulated to the consolidation, which the court journalized, and
the cases were consolidated. Counsel then withdrew, and ultimately new counsel was
appointed.
{¶60} In July 2018, appellant filed a Motion for Severance of the two consolidated
criminal cases. The state responded noting that discussions regarding consolidation had
been occurring with prior counsel since February 2017, over a year earlier. The court
denied appellant’s motion.
{¶61} Crim.R. 8(A) states that:
{¶62} [t]wo or more offenses may be charged in the same indictment,
information or complaint in a separate count for each offense if the
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offenses charged, whether felonies or misdemeanors or both, are of
the same or similar character, or are based on the same act or
transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or
plan, or are part of a course of criminal conduct.
{¶63} Crim.R. 13 allows a court to try two or more indictments together if the
offenses could have been joined in a single indictment. Crim.R. 14, however, requires
separate trials if it appears that a defendant or the state would be prejudiced by such
joinder.
{¶64} A defendant bears “the burden of showing the trial court’s refusal to allow
separate trials of multiple charges under Crim.R. 14 has the burden of affirmatively
showing that his rights were prejudiced; he must furnish the trial court with sufficient
information so that it can weigh the considerations favoring joinder against the
defendant’s right to a fair trial, and he must demonstrate that the court abused its
discretion in refusing to separate the charges for trial.” State v. Torres, 66 Ohio St.2d
340, syllabus, (1981).
{¶65} An appellate court reviews a denial of a motion to sever under an abuse of
discretion standard. State v. Stoutamire, 11th Dist. Trumbull No. 2007-T-0089, 2008-
Ohio-2916, ¶52. The phrase “abuse of discretion” is one of art, connoting judgment
exercised by a court which neither comports with reason, nor the record. State v.
Ferranto, 112 Ohio St. 667, 676–678 (1925). “An abuse of discretion may be found when
the trial court ‘applies the wrong legal standard, misapplies the correct legal standard, or
relies on clearly erroneous findings of fact.’” State v. Figueroa, 11th Dist. Ashtabula No.
2016-A-0034, 2018-Ohio-1453, ¶26, quoting Thomas v. Cleveland, 176 Ohio App.3d 401,
2008-Ohio-1720 (8th Dist.).
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{¶66} “‘A prosecutor can use two methods to negate such [defense] claims of
prejudice.’ First, if one offense could have been introduced under Evid.R. 404(B) at the
trial of the other offense, no prejudice could have resulted from joinder. Evid.R. 404(B)
recognizes that evidence of other crimes may ‘be admissible for * * * proof of motive,
opportunity, intent, preparation, plan.’ Second, the state can refute prejudice by showing
‘that evidence of each of the crimes joined at trial is simple and direct.’” State v. Brinkley,
105 Ohio St.3d 231, 2005-Ohio-1507, ¶30, quoting State v. Lott, 51 Ohio St.3d 160, 163
(1990), and State v. Franklin, 62 Ohio St.3d 118, 122 (1991).
{¶67} Appellant argues for the first time on appeal that the charges of kidnapping,
abduction and assault were improperly included with gun possession charges. In his
motion for relief from prejudicial joinder, made July 18, 2018, appellant argues that the
cases should be separated because the events happened over a year apart, the motives
appeared to be different, and there were no common victims. He argues the jury would
be prejudiced because they would be unable to segregate the evidence. However, no
argument was made as to gun possession charges being erroneously joined with
kidnapping, abduction, and felonious assault charges. Appellant cannot raise this
argument for the first time on appeal; accordingly, we review only for plain error. See
State v. Goodner, 195 Ohio App.3d 636, 2011-Ohio-5018, ¶35 (2d Dist.). “[P]lain error
does not exist unless, but for the error, the outcome of the proceedings would have been
different.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph two of the syllabus.
Because the evidence of each charge was strongly supported by the evidence and the
evidence presented was simple and direct, as discussed under the second assignment
17
of error and further below, we are not persuaded the outcome would have been different,
and thus we find no plain error.
{¶68} Appellant also contends that joinder was improper because the criminal
offenses were not of the same or similar character. He notes that the crimes were
committed more than a year apart, involved different victims, and occurred at different
locations and that “the joinder served only to inflame the jurors’ passions.” He further
asserts joinder effectively denied him the right to a fair and impartial trial because the
evidence on each count would not have been admissible under Evid.R. 404(B) to the
other counts, if the offenses were tried separately. The State, however, does not argue
that as a basis for consolidating the cases. Instead, the state argues that the evidence
of each of the crimes joined at trial was simple and direct.
{¶69} The object of simple and direct evidence is to prevent the trier of fact from
confusing the offenses or from improperly cumulating evidence of various crimes. Lott,
supra, at 163-164; State v. Roberts, 62 Ohio St.2d 170, 175 (1980). This test “focuses
on whether the trier of fact is likely to consider ‘evidence of one [offense] as corroborative
of the other.’” State v. Wiles, 59 Ohio St.3d 71, 77 (1991), citing Dunaway v. United
States, 205 F.2d 23, 27 (D.C.Cir.1953).
{¶70} Appellant argues that the presentation of different factual situations relating
to different counts is complex and will confuse the trier of fact at the defendant’s expense.
In support, he cites State v. Van Sickle, 90 Ohio App.3d 301, 303 (10th Dist.1993) and
Gregory v. United States, 369 F.2d 185, 186 (D.C.Cir.1966).
{¶71} In Van Sickle, the Tenth District found that the gruesome video of the
murder victim’s burnt corpse, though admissible on the abuse of corpse charge, was more
18
prejudicial than probative on the joined aggravated murder charge. In Gregory, the
District of Columbia Circuit court found that although the joinder of the claims was proper
under Crim.R. 8, it was unfairly prejudicial to the defendant because the evidence as to
one of the counts was “so weak as to lead one to question its sufficiency to go to the jury.”
Id. at 189.
{¶72} Neither case is particularly relevant to these proceedings. The evidence of
each of the relevant incidents appear to be of similar severity and the evidence of similar
weight. Moreover, contrary to appellant’s assertion, the fact that the crimes were
committed more than a year apart, involved different victims, and occurred at different
locations does not show they were not of the same or similar character. To the contrary,
in each case, evidence was presented to show appellant accused the victims of stealing
from him, forced them to a location they did not want to go to by showing them a gun, and
assaulted them. The resulting indictments and convictions on each of these counts
included Felonious Assault and Kidnapping or Abduction.
{¶73} The burden is on appellant to show that he was prejudiced by the joinder.
He asserts that the evidence of each event was “hardly simple or direct” and that the jury
was incapable of segregating the proof required for each offense. We disagree. The
different victims, the different locations, and the different times support a finding that the
evidence of each crime was simple and direct. Appellant testified at trial in an attempt to
refute the evidence presented within each count; while this may have made the evidence
within each count less straightforward, the evidence of each count was clear and distinct
from the evidence presented to support each other count.
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{¶74} The State first examined the witnesses who had knowledge about the 2015
incident; then, it examined the witnesses who had knowledge about the 2016 incident.
The only deviation was of the three witnesses who testified about both incidents: Ronald
Metz, who wrote bail bonds for both cases; Joel White, who met and spoke with appellant
while in jail; and Detective Wayne Mackey, who was involved in both investigations. Each
witness’ testimony was simple and direct. They discussed each of the events separately;
they did not go back and forth mixing details involving Shateara with those involving
Shannon and Jeremy. They used names or identified people by their relationship to
appellant and were not vague in their use of pronouns. And there was a clear “changing
of gears” between the testimony of each incident.
{¶75} In light of our finding that the two cases were of a similar nature, and the
evidence presented for each was simple and direct, and considering that prior defense
counsel stipulated to the joinder of the claims, we find appellant’s third assignment of
error is without merit.
{¶76} Appellant’s fourth assignment of error states:
{¶77} The trial court erred by refusing to allow appellant to represent
himself.
{¶78} Appellate courts “review a trial court’s denial of a request for self-
representation asserted prior to the commencement of trial de novo.” State v. Degenera,
11th Dist. Trumbull No 2015-T-0104, 2016-Ohio-8514, ¶19.
{¶79} The Ohio Supreme Court has recognized “that the Sixth Amendment
“guarantees that a defendant in a state criminal trial has an independent constitutional
right of self-representation and that he may proceed to defend himself without counsel
when he voluntarily, and knowingly and intelligently elects to do so.” State v. Obermiller,
20
147 Ohio St.3d 175, 2016-Ohio-1594, ¶28, quoting State v. Gibson, 45 Ohio St.2d 366(1976), paragraph one of the syllabus. “The Sixth Amendment does not provide merely
that a defense shall be made for the accused; it grants to the accused personally the right
to make his defense.” Faretta v. California, 422 U.S. 806, 819 (1975).
{¶80} “A criminal defendant must ‘unequivocally and explicitly invoke’ the right to
self-representation.” Obermiller, supra, at ¶29. “Additionally, as was recognized in
Faretta, the trial court must be sure that the criminal defendant ‘knowingly and
intelligently’ forgoes the ‘traditional benefits associated with the right to counsel.’” Id, at
¶30, quoting Faretta, supra, at 835. “Thus, a defendant’s unambiguous assertion of the
right to self-representation triggers a trial court’s duty to conduct the Faretta inquiries to
establish that the defendant is knowingly and voluntarily waiving his constitutional right to
counsel.” Obermiller, supra, citing United States v. Cromer, 389 F.3d 662, 682-683 (6th
Cir.2004). “[A] trial judge “must investigate [a defendant’s request for self-representation]
as long and as thoroughly as the circumstances of the case before him demand.”
Obermiller, supra, at ¶42, quoting Von Moltke v. Gillies, 332 U.S. 708, 723-724 (1948).
{¶81} Here, it is not disputed that appellant unequivocally requested to represent
himself. Contrary to his assertion that the trial court ignored his request, however, the
court made at least three formal attempts to conduct a Faretta colloquy and ensure that
appellant was “made aware of the dangers and disadvantages of self-representation.”
Faretta, supra, at 835. Appellant refused to cooperate on every occasion.
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{¶82} On December 11, 2018, a pretrial hearing was held to determine whether
appellant understood the consequences of being his own attorney.1 The following
conversation took place, on the record:
{¶83} [The Court:] Do you understand that you have the right to have a
lawyer represent you and the Court will appoint a lawyer for you at
no cost if you cannot afford an attorney?
{¶84} [Appellant:] Your Honor, how you doing today? How you doing
today?
{¶85} [The Court:] I am doing fine. Can you answer my question?
{¶86} [Appellant:] For the record on the record, anything you put on the
record I would like to strike them because he’s a third-party debt
collector. And I feel that you have an interest in this case and –
{¶87} [The Court:] Are you going to answer my question?
{¶88} [Appellant:] Can I talk, please?
{¶89} [The Court:] No, you can’t. You have to answer my question.
{¶90} [Appellant:] I want to know how you tolling my speedy time trial? Like,
you is violating my rights.
{¶91} [The Court:] Have you thought this matter through and you are
certain that you wish to proceed without a lawyer?
{¶92} [Appellant:] Why are you violating my speedy time rights?
{¶93} [The Court:] Do you understand that your current lawyers that you
had were experienced and any other attorney that the Court may
appoint are experienced in criminal matters and in particular handling
criminal jury trials? Do you understand that?
{¶94} [Appellant:] Objection. I don’t agree to no trial.
{¶95} [The Court:] Do you understand that --
{¶96} [Appellant:] I’m done talking to you, Your Honor, ‘cause you’re not --
{¶97} [The Court:] All right. In that case, I’m going to make my ruling that
you will not be permitted to be a pro se Defendant in this case. Your
1. The court noted that it had previously made an attempt at this on November 20, 2017 but was unable
to do so.
22
refusal to answer questions posed to you or your decisions to make
other generalized comments --
{¶98} [Appellant:] Objection. You’re not allowed to give me legal advice.
{¶99} [The Court:] --makes it understandable to this Court that you are not
capable of representing yourself in this case.
{¶100} On February 14, 2018, with new counsel appointed, the court told appellant:
{¶101} [The Court:] You can have [defense counsel] represent you in this
case and he is a seasoned attorney who has tried every kind of case
imaginable in criminal matters and is one of the best in the entire
area. * * * The other option is one that has you defending yourself
and he acts as standby counsel. The problem that we’ve had in the
past is in order for you to represent yourself, I am obligated to inquire
of you and make a ruling that you’re capable of defending yourself.
There are questions and there is [sic] procedures as to how that’s
done and if you answer those questions and they’re answered to my
satisfaction, I will allow you to represent yourself with [defense
counsel] as standby counsel. If one of two things happen; one of
which is that you simply don’t answer them or if you answer them
and I’m not satisfied that you’ve answered them sufficiently to satisfy
this Court and appellate courts that will hear this case afterwards,
that you are in a position to adequately represent yourself, then in
this situation, [defense counsel] will be your counsel in defense of
this case. Do you understand that?
{¶102} * * *
{¶103} [Defense Counsel:] Can I have just one second? * * * I want to ask
him if he want to do the Faretta.
{¶104} [The Court:] Yes.
{¶105} [Defense Counsel:] He wants to ask you questions, are you
indicating that you want to represent yourself?
{¶106} [Appellant:] I don’t feel like I want to answer these questions today.
{¶107} [The Court:] You don’t want to answer the questions that I need to
ask you in order to make a determination --
{¶108} [Appellant:] Not today, sir.
{¶109} [The Court:] All right.
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{¶110} Finally, on February 28, 2018, the court again met to conduct a Faretta
colloquy.
{¶111} [The Court:] * * * We’re here this morning in order to ask the
Defendant questions to make sure that he understands and that it’s
a knowing, voluntary decision on his part to be his own counsel, or
to be pro se, as they call it. So Mr. Travis, I’m going to ask you some
questions. And also for the record, I would note that [defense
counsel] is here who has been appointed as standby counsel in this
matter. And [defense counsel], it’s my understanding that you did
have an opportunity to discuss what the issue is as far as the Court
entertaining answers to my questions by the Defendant to make sure
that he understands the consequences and the parameters of being
a pro se attorney.
{¶112} [Defense Counsel:] I did, Your Honor. If I may just sort of fill in where
we were from the last time we were here. The Court will recall, I’m
sure, that Mr. Travis at that point chose not to answer the Faretta
questions. I had written a letter to him basically saying, did you
change your mind. When I was here on Monday for another case, I
went over to the jail, unfortunately, he hadn’t received that letter yet
but when I spoke to him, I explained once against that the Judge
can’t really let you exercise your Faretta rights unless and until he
asks you those questions. I believe that Mr. Travis now understands
that and I believe that he does want to answer those questions and
that’s why the Court was kind enough to schedule this hearing.
{¶113} [The Court:] Okay. All right. The first thing I’m going to ask you just
generally is why you want to represent yourself, just generally as
opposed to having a skilled attorney who handles these things?
{¶114} [Appellant:] Is that the question you to ask me, like --
{¶115} [The Court:] That’s the first question.
{¶116} [Appellant:] May I see that question, please? May I see that question,
please?
{¶117} [The Court:] It’s here. Here. You got it now.
{¶118} [Appellant:] May I see that on paper, please?
{¶119} [The Court:] I can read all of this or none of this. I’m just asking you
why you want to be your own attorney?
{¶120} [Appellant:] Because I feel like representing myself.
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{¶121} [The Court:] You think you can do better than having a skilled criminal
trial attorney?
{¶122} [Appellant:] I feel that I represent myself the best.
{¶123} [The Court:] Okay. So that’s your main reason?
{¶124} [Appellant:] Yeah. * * * Can I see that question on paper please, Your
Honor?
{¶125} [Defense Counsel:] May I have just a second, Your Honor?
{¶126} [The Court:] Yes. These are questions that have been accumulated
in order to satisfy certain case law that’s come out. They’re not
verbatim anything from any particular court case. Each Judge does
his own. They have to be consistent with what’s required by the
Supreme Court.
{¶127} After further discussion, in which appellant insists on seeing the questions
in writing, the prosecutor further attempted to explain to appellant the Faretta case and
requirements.
{¶128} [Prosecutor:] * * * Similarly, in this kind of situation, there are
questions that the Judge asks of you about the legal process in order
to make a determination that you know what you are doing and what
you understand your responsibilities are as a person defending
themselves or a pro se litigant. And so the Judicial Conference
prepared these sample questions for the Judge to look at –
{¶129} [Appellant:] These questions come from the Judicial Conference?
May I see these questions?
{¶130} [Defense Counsel:] The point is this, unless you --
{¶131} [Appellant:] I want to see these questions on paper because I will not
be judged – this man, the prosecutor, I object -- I’m objecting to him
even prosecuting this case, not [the prosecutor]. * * *
{¶132} [The Court:] Do you want to answer my questions?
{¶133} [Appellant:] May I see these questions, please?
{¶134} [The Court:] Answer my question. Are you going to answer my
questions?
{¶135} [Appellant:] Yes, I will answer your question once I see these is --
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{¶136} [The Court:] I’m not showing you this.
{¶137} [Defense Counsel:] He’s not required to show them to you.
{¶138} [The Court:] I’m not going to show them to you.
{¶139} [Appellant:] Well, I will --
{¶140} [Defense Counsel:] You can’t represent yourself unless you waive
your right to counsel and his questions, [the Judge’s] questions --
{¶141} [Appellant:] Well, we’ll be back next week.
{¶142} [The Court:] We’re not coming back next week. He’s going to
represent you and if you change your mind on the day of the trial --
{¶143} [Appellant:] Objection.
{¶144} [The Court:] -- then that day you will have to answer these.
{¶145} [Appellant:] Objection, Your Honor. Objection.
{¶146} The record is clear that it was appellant’s refusal to participate in the Faretta
colloquies that resulted in the trial court’s denial of his request for self-representation.
Without the cooperation of appellant, the court was unable to determine that appellant
understood the consequences and responsibilities of representing himself. Being unable
to ascertain this, as required by law, the court did not err in denying appellant’s request
to represent himself. Accordingly, appellant’s fourth assignment of error is without merit.
{¶147} Appellant’s final assignment of error states:
{¶148} The trial court erred by denying appellant’s motion for removal of an
electronic restraint vest, as it deprived him of the ability to fully
communicate with his lawyer during trial without the fear of receiving
a debilitating electronic jolt at any time.
{¶149} The general rule is that “‘no one should be tried while shackled, absent
unusual circumstances.’” State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, ¶104,
quoting State v. Kidder, 32 Ohio St.3d 279, 285 (1987). “‘However, shackling is left to the
trial court’s sound discretion.’” Adams, supra, quoting State v. Richey, 64 Ohio St.3d 353,
26
358, (1992). “Courts have upheld restraints in trials of defendants with a documented
history of violence or escape attempts. See, e.g., Harrell v. Israel (C.A.7, 1982), 672 F.2d
632, 636; Kennedy v. Cardwell (C.A.6, 1973), 487 F.2d 101, 105, fn. 5.” Adams, supra.
“[A]n appellate court will not disturb the trial court’s exercise of its discretion to impose
restraints if the record demonstrates ‘a compelling need to impose exceptional security
procedures.’” State v. Frazier, 1st Dist. Hamilton Nos. C-030571 and C-030572, 2004-
Ohio-4108, ¶5, quoting State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶82.
{¶150} In Adams, the Ohio Supreme Court upheld the use of a stun belt on the
defendant during trial. There, the trial court found that the defendant posed a risk of
escape, had difficulty in adequately controlling his frustrations and anger, and threatened
to punch his attorneys. It also noted that the device was not visible to the jury and unless
activated the jury would not know it was being worn.
{¶151} Here, the court conducted a hearing, which does not appear to be part of
the record, to determine whether it was necessary for appellant to wear the electronic
restraint vest. On October 18, 2018, the court issued a Judgment Entry approving the
use of an electronic restraint vest to be worn by appellant under his civilian clothing during
trial. The court noted, and the record shows, that appellant had various outbursts and
interruptions during hearings on several occasions and did not respond to admonishment;
that appellant had threatened correction officers while in jail; and appellant had numerous
incidents while at the Trumbull County Jail that resulted in his solitary confinement and
ultimate transfer to Mahoning County Jail.
{¶152} Additionally, while arguing that he would wear the vest over his civilian
clothing, appellant threatened to spit on the officers and his attorney. The record also
27
shows that prior to trial appellant violated the terms of his house arrest numerous times
and had even removed the ankle monitor. After posting bail, he failed to appear for court
and was ultimately located by a fugitive recovery team in Georgia.
{¶153} Although appellant blanketly asserts that the vest prevented him from
talking with his attorney, he makes no specific references to how this prevented him from
talking with his attorney, neither does the record show any such instances. Indeed, it did
not deter him from taking the stand and testifying in his own defense.
{¶154} In light of appellant’s history of uncooperative attitude, disruptive behavior,
destructive actions, and absconsion, the trial court did not abuse its discretion in requiring
appellant to wear an electronic restraint vest during trial under his civilian clothing and not
visible to the jury.
{¶155} Appellant’s fifth assignment of error is without merit.
{¶156} Accordingly, for the reasons set forth herein, the judgment of the Trumbull
County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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