State v. Moore , 2013 Ohio 1435 ( 2013 )

[Cite as State v. Moore, 2013-Ohio-1435.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 12 MA 8
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
DARRIN MOORE, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 04CR504.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Lynn Maro
7081 West Boulevard
Youngstown, Ohio 44512
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 27, 2013
[Cite as State v. Moore, 2013-Ohio-1435.]
VUKOVICH, J.
{¶1} Defendant-appellant Darrin Moore appeals after being sentenced on
multiple offenses resulting partially from a plea and partially from a jury verdict
entered in the Mahoning County Common Pleas Court. Appellant sets forth nine
assignments of error, raising issues with joinder, the omission of a name from the
state’s witness list, complicity on a firearm specification, the refusal to permit plea
withdrawal, the admission of testimony from the first trial, sufficiency of the evidence,
flight instructions, prosecutorial misconduct, and weight of the evidence. For the
following reasons, appellant’s convictions are affirmed.
STATEMENT OF THE CASE
{¶2} On September 9, 2003, a woman in a Boardman parking lot was
restrained by two teens armed with a gun. Before the woman escaped, she was hit
with the gun, her purse was stolen, her bra was removed, and her breasts and
buttocks were fondled. The teens then fled in her vehicle. The car was spotted later
that day, and a police car chase ensued. Appellant was eventually apprehended
after fleeing from the vehicle. Weeks later, he escaped from custody after claiming to
need medical treatment.
{¶3} On December 10, 2003, an off-duty security guard reported that his
1993 blue Buick LeSabre was stolen from the parking lot of 541 Club, a private club
on the east side of Youngstown. (Tr. 335-336). The trunk of his car contained his
gun belt with a holster, a silver and black .357 magnum, speed loaders, and .38
caliber bullets. (Tr. 334-336).
{¶4} On December 11, 2003 at 10:20 p.m., Mr. Robert Smith was shot four
times in the parking lot at 541 Club and his 1997 burgundy Cadillac Catera was
stolen from the lot. He died from his wounds. The bullets recovered from the body
and scene were of the type fired by a .357 magnum. (Tr. 381).
{¶5} That night around midnight, appellant and Damon Clark stopped at a
friend’s house. This friend described Clark as acting nervous and appellant as acting
normal. When she asked appellant if he was “up to no good,” he responded, “pow,
pow, pow.” (Tr. 296, 308, 317). She noticed that appellant had a chrome revolver
-2-
and a police-like holster on a belt. She then witnessed appellant empty shell casings
from the gun into an ashtray, empty the ashtray into the trash, and take the trash to
the curb. (Tr. 297-298).
{¶6} At this time, she saw a blue Buick LeSabre on the street in front of her
four-plex. (Tr. 299). She also saw a white van parked across the street. (Tr. 299).
In the back driveway, she noticed a burgundy Cadillac Catera. (Tr. 300). When
appellant left after half an hour, the Cadillac remained. After this witness learned
about what happened to Mr. Smith, she told appellant and Clark to get the Cadillac
out of her driveway. (Tr. 301-302). During this conversation, appellant told her that
“they shot some guy on the south side.” (Tr. 302). Appellant then asked her for a
milk carton so they could burn the car. (Tr. 302-303).
{¶7} A few days after Mr. Smith was killed, the police received a call that a
car was burning on an abandoned road. (Tr. 270-272, 481). The car turned out to
be the one stolen from the murder victim. A witness saw a white van leaving the
scene of the fire. (Tr. 477, 479). This van was also seen at a nearby gas station. A
video surveillance tape showed Damon Clark exiting the stolen white van and buying
gas. (Tr. 480-481).
{¶8} Damon Clark was then arrested, leading police to speak with the friend
who saw appellant empty the shells out of the gun. The police also spoke to Clark’s
cousin, who had been dating appellant for a month. (Tr. 425-426). This witness
stated that appellant and Clark came to her house in the early morning hours of
December 11, 2003 and spent the night. In the morning, they asked her if she saw
the news. (Tr. 428). She also testified that appellant told her he shot a man and he
was worried Clark was going to tell on him. (Tr. 430-431, 435).
{¶9} On January 8, 2004, the police learned appellant’s location and began
surveillance. When appellant drove away in a stolen vehicle, the police activated
their lights. (Tr. 384-385, 387-389). Appellant refused to stop and eventually
crashed into a fence. (Tr. 385). Appellant then fled on foot, and the police found him
hiding behind wooden crates in an industrial park. (Tr. 385- 386).
-3-
{¶10} Appellant was charged with multiple offenses, which as will be seen,
result in a convoluted procedural history. Some of appellant’s offenses were tried to
a jury in 2006. On appeal of those convictions, this court found issues with joinder
and a violation of a pre-indictment non-prosecution agreement entered in the juvenile
court with regards to certain offenses. State v. Moore, 7th Dist. No. 06MA15, 2008-
Ohio-1190. On the joinder issue, we held that appellant’s escape charge from
October of 2003 and his receiving stolen property charge resulting from driving a
stolen car during his January of 2004 arrest should not have been tried with his
December of 2003 aggravated murder and aggravated robbery charges. Id. at ¶ 80-
81 (and a failure to comply charge that no longer exists). We thus remanded for
three separate trials: one for the December of 2003 aggravated murder and
aggravated robbery; one for the October of 2003 escape; and one for the January of
2004 receiving stolen property count. Id. at ¶ 83, 169. (The trial court had already
severed the charges from the September of 2003 carjacking of the woman, and these
had not yet been tried.)
{¶11} After remand, a superseding indictment was filed containing the
following counts: (1) Aggravated Murder; (2) Aggravated Robbery (of the murder
victim on December 11, 2003); (3) Receiving Stolen Property (possessing the stolen
gun on December 11, 2003); (4) Aggravated Robbery (from the September 9, 2003
incident); (5) Gross Sexual Imposition; (6) Kidnapping; (7) Escape (on October 22,
2003); (8) Receiving Stolen Property (the security guard’s car); and (9) Receiving
Stolen Property (the car driven during the January 8, 2004 arrest).
{¶12} On June 22, 2010, appellant entered guilty pleas to counts four, five,
and six, the counts relating to the September 9, 2003 carjacking of the woman in
Boardman. As part of the plea, the gross sexual imposition charge was changed to
complicity at appellant’s request (where he expressly recognized that this did not
change the offense or the sentence). Sentencing on these charges was postponed
until the final sentencing on all charges, and bond was reduced.
{¶13} The court had set all of the December 11, 2003 charges for one jury
trial. On February 14, 2011, the first morning of trial, the defense objected to the
-4-
receiving stolen property count (representing the stolen murder weapon) being tried
with the aggravated murder and aggravated robbery counts. (Tr. 2). Nevertheless,
the trial proceeded on all three counts. On February 22, 2011, the jury found
appellant guilty of these three counts and two firearm specifications.
{¶14} On February 24, 2011, appellant filed a motion to withdraw the plea to
the offenses involved in the September 9, 2003 carjacking: aggravated robbery,
complicity to gross sexual imposition, and kidnapping.
{¶15} The next day, he pled guilty to the escape charge, and the state
dismissed the two receiving stolen property counts and recommended a five-year
concurrent sentence for the escape.
{¶16} After entering this plea, the defense presented arguments in support of
the motion for plea withdrawal on the September carjacking counts. The court
denied this plea withdrawal motion.
{¶17} The court then sentenced appellant on these and the other remaining
counts as follows: (1) twenty years to life for aggravated murder; (2) ten years,
consecutive, for aggravated robbery; (3) eighteen months, consecutive, for receiving
stolen property (gun); (4) ten years, consecutive, for aggravated robbery; (5) eighteen
months, consecutive, for complicity to gross sexual imposition; (6) ten years,
consecutive, for kidnapping; (7) five years, concurrent, for escape.
{¶18} The three-year firearm specifications from the same incidents merged,
leaving one specification for the September carjacking and one specification for the
December murder/robbery. Appellant’s aggregate sentence totaled fifty-nine years to
life, and he was labeled a Tier I sex offender.
{¶19} Trial counsel failed to file a notice of appeal as instructed by the trial
court in its sentencing entry on the belief that the simultaneously appointed appellate
counsel would file the appeal; however, appellate counsel was never informed of her
appointment. This court granted leave to file a delayed appeal in January of 2012,
and the briefs were filed in July and November of 2012.
ASSIGNMENT OF ERROR NUMBER ONE
{¶20} Appellant sets forth nine assignments of error, the first of which alleges:
-5-
{¶21} “THE TRIAL COURT ERRED BY GRANTING IMPROPER JOINDER
OF COUNT 3 OF THE INDICTMENT ON THE MORNING OF TRIAL THEREBY
DEPRIVING APPELLANT OF A FAIR TRIAL IN VIOLATION [OF] THE LAW OF THE
CASE AND THE [CONSTITUTION].”
{¶22} An indictment can contain multiple offenses if the offenses charged “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.” Crim. R. 8(A)
(joinder of offenses). “Joinder is liberally permitted to conserve judicial resources,
reduce the chance of incongruous results in successive trials, and diminish
inconvenience to the witnesses.” State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d
661 (1992).
{¶23} If it appears that a defendant is prejudiced by joinder of offenses, the
court shall order separate trials or provide such other relief as justice requires.
Crim.R. 14 (relief from prejudicial joinder). The defendant bears the burden to prove
prejudice from the joinder of multiple offenses in a single trial and to prove that the
trial court abused its discretion in denying severance. State v. Coley, 93 Ohio St.3d
253, 259, 754 N.E.2d 1129 (2001). There is no prejudice if the evidence of the
offense sought to be severed would have been admissible anyway. Id. Alternatively,
there is no prejudice if the evidence supporting each offense is simple and direct. Id.{¶24} One argument appellant presents here is that joinder of the stolen gun
charge was prejudicial because the evidence regarding the stolen gun does not show
a similar pattern as the conduct involved in the aggravated murder and aggravated
robbery. He emphasizes that the gun was stolen the night before the murder/robbery
from a different victim.
{¶25} However, as appellant recognizes, this court previously ruled that
evidence regarding the security guard’s stolen gun was admissible in the
murder/robbery trial. Moore, 7th Dist. No. 06MA25 at ¶ 85-111. Thus, a charge
regarding the possession of the very weapon used to kill and rob the victim can be
tried at the same time as the murder/robbery case. The possession of the stolen
-6-
weapon and the murder/robbery with that same weapon are connected together and
are part of a course of criminal conduct. See Crim.R. 8(A). Moreover, the evidence
as to each offense was simple and direct and was not confusing. See Coley, 93 Ohio
St.3d at 259. Thus, this argument is overruled.
{¶26} Appellant’s alternative argument is that the trial court violated the prior
appellate mandate and the law of the case. As aforementioned, the aggravated
murder and aggravated robbery charges were previously tried to a jury, and on
appeal, this court sustained appellant’s joinder argument finding in pertinent part that
the October 2003 escape and the January 2004 receiving stolen property counts
should have been severed from the murder/robbery trial. Moore, 7th Dist. No.
06MA25 at ¶84.
{¶27} In doing so, we explained that the trial court had previously severed the
count involving the January of 2004 stolen car from the December of 2003
murder/robbery case, but then on the morning of the murder/robbery trial, the trial
court changed its mind and ordered the stolen property count to proceed to trial that
day. Id. at ¶ 79. We found this inherently prejudicial. Id. at ¶ 80. We also stated
that the evidence used to establish the stolen car count would not have been
admissible at the murder/robbery trial. Id. at ¶81 (making this same holding as to the
escape charge). As a remedy, we ordered three separate retrials on remand: one
for the aggravated murder and aggravated robbery counts; one for the escape count;
and one for the stolen vehicle count. Id. at ¶ 83, 169.
{¶28} On remand, appellant entered a plea on the escape count, and the
stolen vehicle count was dismissed. The aggravated murder and aggravated robbery
trial also contained a receiving stolen property count to represent the stolen gun that
appellant used to commit the murder. Appellant believes that the trial court violated
our mandate and the law of the case by not having a trial that only contained the
aggravated murder and aggravated robbery counts.
{¶29} At its most basic, the law of the case doctrine provides that when a
reviewing court makes a pronouncement on a rule of law, that decision should
continue to govern the same issues in subsequent stages of that same case.
-7-
Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983);
Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). If, at a rehearing
following remand, a trial court is confronted with “substantially the same facts and
issues as were involved in the prior appeal,” the trial court must observe the appellate
court's decision on the applicable law and follow the mandate provided. Nolan, 11
Ohio St.3d at 3-4. The law of the case is said to be an amorphous concept. Arizona,
460 U.S. at 618. It is a rule of practice, as opposed to a binding rule of substantive
law. Nolan, 11 Ohio St.3d at 3
{¶30} Here, the gun count was not at issue in the prior appeal. A superseding
indictment1 added this receiving stolen property count to account for the gun that
appellant used to commit the murder. There is no inconsistency of results involved,
relitigation of settled legal principles, or disrespect of an appellate holding on an
issue of law, and the facts relevant to the indictment are not substantially the same
with regards to the count at issue here. See id. at 3-4.
{¶31} The essence of our holding was that the aggravated murder and
aggravated robbery counts were to be severed from the escape count which would
all be severed from the stolen vehicle count. This occurred on remand. As the legal
issue regarding joinder of the gun count was not before us in the prior appeal, joinder
of the receiving stolen property count upon remand (and after a new indictment
added this charge to account for the stolen gun) would not violate the law of the case
doctrine or defy our prior mandate.
{¶32} Lastly, appellant argues that at least his trial counsel had the right to
assume that, based upon the language of the appellate decision, one trial would
proceed only on the aggravated murder and the aggravated robbery counts.
Appellant suggests that counsel was unaware that the trial would also proceed on the
stolen gun count until the morning of the February 14, 2011 trial, and thus, he was
not prepared to defend this count.
1
Apparently, the re-indictment process was initiated due to concern over a June of 2009 case
out of this court dealing with mental states in the indictment. See State’s July 14, 2009 Motion, citing
State v. Freeman, 7th Dist. No. 08MA81, 2009-Ohio-3052.
-8-
{¶33} Counsel’s arguments to the trial court were mainly based upon our prior
decision, the unfairness of the state adding charges after remand, and his desire to
have more to negotiate with when pleading to other charges. (Tr. 2-3, 5-6). Still, by
stating that he believed the trial court was under the assumption that they were only
proceeding on the murder/robbery, counsel suggested that he was surprised that the
state was proceeding on the stolen gun count as well. However, defense counsel did
not actually assert that he was unprepared to defend the stolen gun count.
{¶34} And, the circumstances do not support a finding of surprise. For
instance, the security guard was listed as a witness for the trial. He testified at the
last trial, and we found his testimony on the stolen gun admissible. In addition, the
friend who saw appellant empty the gun and throw away the casings testified at the
last trial and was again listed as a witness in the murder trial. Thus, counsel was
prepared to be presented with the evidence regarding appellant’s possession of the
stolen gun.
{¶35} Moreover, the trial court’s February 19, 2010 judgment entry (entered
one year prior to trial) stated that a single trial would contain the counts relating to the
December 11, 2003 incident. The stolen gun count was one of those counts as the
indictment alleged that appellant possessed the stolen gun on that day. Accordingly,
reversible error has not been demonstrated.
{¶36} For all of these reasons, this assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
{¶37} Appellant’s second assignment of error provides:
{¶38} “THE TRIAL COURT ERRED IN FAILING TO HOLD A DISCOVERY
SANCTIONS HEARING AND INQUIRE INTO THE CIRCUMSTANCES OF THE
STATE’S DISCLOSURE OF A WITNESS THE MORNING OF TRIAL.”
{¶39} Before jury selection on the afternoon of February 14, 2011, defense
counsel noted that the state had just added Mr. Gregory Hundley to its February 4,
2011 witness list. Defense counsel then stated, “That would require some action on
my part.” The court responded that it would give counsel plenty of time at the end of
the day and suggested that the state bring the witness over from the jail for defense
-9-
counsel. (Tr. 9). Defense counsel replied, “I will just put it this way; for purposes of
the record today I am going to object to him being included in the trial in this action
since he was not on the witness list. He did testify at the previous trial, however.”
(Tr. 9-10). The state pointed out that the defense had the transcript of the witness’s
prior testimony, and the court assured counsel that he would be given sufficient time
to review the transcript. (Tr. 10).
{¶40} Appellant argues here that the trial court did not sufficiently inquire into
why the state’s witness list failed to contain the name of this witness. Appellant notes
that defense counsel was not the same counsel from the first trial and suggests that
there was no reason for counsel to prepare for this witness since his name was not
on the list.
{¶41} The purpose of the discovery rule is to provide the parties in a criminal
case with the information necessary for a full and fair adjudication of the facts, to
protect the integrity of the justice system, the rights of defendants, and the well-being
of witnesses, victims, and society at large. Crim.R. 16(A). Each party shall provide
to opposing counsel a written witness list, including the names and addresses of any
witness it intends to call in its case-in-chief or reasonably anticipates calling in
rebuttal. Crim.R. 16(I).
{¶42} Upon demand, the state is also required to provide the criminal records
of the defendant, a co-defendant, and the record of prior convictions of a witness in
the state’s case-in-chief or that it reasonably anticipates calling as a witness in
rebuttal. Crim.R. 16(B)(2). If it is brought to the attention of the trial court that a party
has failed to comply with the discovery rule, the trial court “may order such party to
permit the discovery or inspection, grant a continuance, or prohibit the party from
introducing in evidence the material not disclosed, or it may make such other order
as it deems just under the circumstances.” Crim.R. 16(L)(1).
{¶43} Appellant believes that the Ohio Supreme Court’s Papadelis case
supports his position that a court abuses its discretion in allowing the state to use a
witness not named until the morning of jury selection without inquiring into why the
state failed to list that witness. However, that case is wholly distinguishable.
-10-
{¶44} In Papadelis, the trial court excluded all of the defendant’s witnesses
from testifying except the defendant himself; those witnesses would have provided a
complete defense to the charges. City of Lakewood v. Papadelis, 32 Ohio St.3d 1,
4, 511 N.E.2d 1138 (1987). The Supreme Court concluded that the discovery
sanction imposed by the trial court denied the defendant the constitutional right to
present a defense. Id. at 4-5.
{¶45} The Court then adopted the position that “when presented with the
claim that exclusion of a criminal defendant's witnesses is too harsh a sanction,” the
trial court must make an inquiry into the surrounding circumstances prior to excluding
a party's witnesses and find that no lesser sanction would accomplish the purpose of
the discovery rules and that the state would be prejudiced if the witnesses were
permitted to testify. Id. at 5. The Court continued: “a trial court must inquire into the
circumstances surrounding a discovery rule violation and, when deciding whether to
impose a sanction, must impose the least severe sanction that is consistent with the
purpose of the rules of discovery.” Id.
{¶46} Papadelis dealt with the defendant’s constitutional right to present a
defense and explained the trial court’s duty prior to imposing discovery sanctions.
The case at bar deals with the trial court’s decision to allow a state’s witness to
testify, rather than imposing the harsh and last-resort sanction of excluding a defense
witness.
{¶47} Furthermore, although there was no direct question presented to the
prosecutor on the record as to why the name was left off the witness list, the majority
of indications in the record leave one with the impression that the omission was the
result of mere accidental oversight. See State v. Parson, 6 Ohio St.3d 442, 445, 453
N.E.2d 689 (1983) (where the Supreme Court merely found there was nothing in
record indicating the lack of disclosure was willful). In addition, the trial court did
inquire into the potential prejudice involved in the late addition to the last official
witness list and the reasons why prejudice was not great (the defense was aware of
the existence of this witness and his story). The court then exercised its discretion to
fashion a remedy involving time and transportation.
-11-
{¶48} Notably, defense counsel did not ask for a continuance but sought total
exclusion of the witness. The trial court fashioned the remedy of providing defense
counsel time at the end of the day to interview the witness and asked the state to
bring the witness to counsel so that counsel would not have to go to the jail. We can
presume that this occurred since no further objection was entered prior to this
witness taking the stand. (Tr. 346-347).
{¶49} Importantly, this witness testified at the prior trial. Defense counsel had
this court’s prior appellate decision, which stated, “Gregory Hundley testified to
Moore’s admission to him in jail about the Smith robbery and murder.” Moore, 7th
DIst. No. 06MA25, ¶ 27. We even cited to pages 623-632 of the transcript where this
occurred. Id. And, defense counsel admitted to the trial court that he possessed this
witness’s prior testimony within the transcript of the prior trial. Presumably, counsel
engaged in the open file discovery offered as well and reviewed the entire case file,
which also contained the state’s supplemental discovery of May 26, 2005 involving
this witness’s detailed statement
{¶50} Also significant here is the fact that, after remand and the appointment
of new trial counsel, Mr. Hundley was subpoenaed to appear for the July of 2009 trial
of this action, which was then continued, eventually resulting in the within February of
2011 trial date. And the state provided the criminal history of Mr. Hundley in its July
10, 2009 supplemental discovery for the trial of the offenses at issue herein. See
Crim.R. 16(B)(2) (the state is required to provide the criminal records of its
witnesses). Additionally, an order to convey Mr. Hundley from jail to testify was filed
on February 11, 2011.
{¶51} Regarding preparation, we point out that, on the day trial began,
defense counsel filed a subpoena for the jail records concerning the pod placements
of Mr. Hundley and appellant. Moreover, the defense objected to this witness prior to
jury selection on February 14, 2011, but Mr. Hundley was not called to testify until
February 17, 2011. (Tr. 9, 321, 347). See Parson, 6 Ohio St.3d at 445 (emphasizing
that by the time the undisclosed evidence was admitted into the trial, appellant was
well aware of its existence). Finally, we note that the court recessed for the day at
-12-
noon on February 15 and at 2:40 p.m. on February 16, providing plenty of extra time
to prepare. (Tr. 139, 321).
{¶52} Considering all of these circumstances, there is no indication that
counsel was not prepared to cross-examine Mr. Hundley or that the trial court abused
its discretion in allowing Mr. Hundley to testify. As such, this assignment of error is
overruled.
ASSIGNMENT OF ERROR NUMBER THREE
{¶53} Appellant’s third assignment of error contends:
{¶54} “APPELLANT WAS DENIED DUE PROCESS AND WAS SUBJECT TO
CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE [CONSTITUTION]
WHEN THE TRIAL COURT IMPOSED A SENTENCE FOR A FIREARM
SPECIFICATION THAT WAS NOT AN ‘OFFENSE’.”
{¶55} The court instructed the jury on complicity. (Tr. 545-547). In doing so,
the court explained that the concept applied to the indicted crimes and to the
specifications. (Tr. 546-547). The only citation to this court regarding an objection to
this instruction is to an argument after the fact at the sentencing hearing where
defense counsel objected to sentencing on the firearm specification pointing to
questions the jury raised and vaguely referencing complicity on firearm specifications.
(Tr. 15-16).
{¶56} “On appeal, a party may not assign as error the giving or the failure to
give any instructions unless the party objects before the jury retires to consider its
verdict, stating specifically the matter objected to and the grounds of the objection.”
Crim.R. 30(A). The failure to object to jury instructions at a time when the court can
correct them waives all but plain error. State v. Hartman, 93 Ohio St.3d 274, 289,
754 N.E.2d 1150 (2001). And, if the record supports the preservation of an issue, the
brief must provide this court with citation to the proper and timely place in the record
where this preservation occurred. See App.R.12 (A)(2); App.R. 16(A)(7), (D).
{¶57} We did notice, in reviewing the record ourselves while conducting our
manifest weight review infra, that during the finalization of instructions, defense
counsel objected to the complicity instruction. However, there was no mention of the
-13-
firearm specification issue. Rather, the instruction seemed to be related to complicity
in general. More specific arguments may have been made earlier. (Tr. 572) (for
instance, when objecting to the flight instruction, counsel referenced the arguments
he made previously). Yet, we have not located prior arguments on the record
specifically contending that the complicity statute is inapplicable to firearm
specifications.
{¶58} In any event, appellant’s argument lacks merit. Appellant
acknowledges that the Ohio Supreme Court has previously held that a defendant is
subject to sentencing enhancement on a firearm specification regardless of whether
he was the principal or an unarmed accomplice. State v. Chapman, 21 Ohio St.3d
41, 42-43 487 N.E.2d 566 (1986). See also State v. Moore, 16 Ohio St.3d 30, 476
N.E.2d 355 (1985).
{¶59} Appellant suggests that the Supreme Court’s Chapman decision
conflicts with the plain language of the complicity statute. This statute begins by
stating in pertinent part: “No person, acting with the kind of culpability required for
the commission of an offense, shall * * * Aid or abet another in committing the
offense.” R.C. 2923.03(A)(2). The statute concludes by stating: “Whoever violates
this section is guilty of complicity in the commission of an offense, and shall be
prosecuted and punished as if he were a principal offender.” R.C. 2923.03(F).
{¶60} Appellant points to the two statutory references to “an offense” and
emphasizes that a firearm specification is not an offense. Notably, the Chapman
court quoted the language of R.C. 2923.03(F) and still concluded that an unarmed
person can be sentenced for a firearm specification if they were only complicit in
committing the offense to which the specification attached. Chapman, 21 Ohio St.3d
at 42.
{¶61} In disregarding this law, appellant relies on the recent Supreme Court
case of State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498. In that
case, the Court held that the offense of discharging a firearm into a habitation and a
firearm specification are not allied offenses of similar import subject to merger
-14-
because a firearm specification is not a criminal offense but is a sentencing
enhancement that attaches to the underlying offense. Id. at ¶ 9, 16, 19.
{¶62} Appellant focuses on the language stating that a firearm specification is
not a criminal offense and believes that this changes the analysis of whether the
complicity statute would apply to a firearm specification since the complicity statute
speaks in terms of “an offense.” He then concludes that Ford implicitly overruled
Chapman.
{¶63} However, when the Chapman Court ruled that an unarmed accomplice
can be convicted of the underlying offense and the firearm specification due to the
complicity statute, the Court’s holding did not rely on a finding that a firearm
specification was an offense as appellant suggests. As such, Ford did not alter
Chapman.
{¶64} Moreover, the Ford case had nothing to do with complicity, and thus,
does not offer a compelling reason to alter well-established complicity holdings. See
State v. Howard, 8th Dist. No. 97695, 2012-Ohio-3459, ¶ 24 (a post-Ford case
stating, “It is well settled that an unarmed accomplice can be convicted of an
underlying felony, together with a firearm specification, based on an aider and abettor
status.”). Finally, when expressly asked to revisit Chapman, the Supreme Court
reiterated that one person’s use of a gun can be imputed to another so that a firearm
specification is proper for an unarmed accomplice. State v. Jackson, 169 Ohio
App.3d 440, 2006-Ohio-6059, 863 N.E.2d 223, ¶ 32.
{¶65} In conclusion, a firearm specification was and still is an enhancement to
a predicate offense, and the complicity statute provides that the person complicit in
the offense can be prosecuted “and punished” as if he were the principal. R.C.
2923.03(F). Thus, complicity can be used to establish the predicate offense, and the
enhancement can follow suit. Accordingly, this assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER FOUR
{¶66} Appellant’s fourth assignment of error argues:
-15-
{¶67} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
MOTION TO VACATE THE PLEA PRIOR TO SENTENCING [IN] VIOLATION OF
THE [CONSTITUTION].”
{¶68} On June 22, 2010, appellant pled guilty to the offenses resulting from
the September of 2003 carjacking of the woman in Boardman: aggravated robbery,
complicity to gross sexual imposition, and kidnapping (each with a firearm
specification merged to a single specification). Sentencing was reserved until after
the trials on the remaining offenses, and appellant’s bond was reduced pending
sentencing.
{¶69} On February 22, 2011, a jury returned guilty verdicts on the offenses
resulting from the December of 2003 murder: aggravated murder, aggravated
robbery, and receiving stolen property (the gun). Sentencing was set for February
25, 2011.
{¶70} On February 24, 2011, appellant filed a brief motion to withdraw the
June 22, 2010 guilty plea. The motion stated that he entered the plea when he was
under some duress over issues relating to other matters pending against him at the
time. The motion contended that plea withdrawal would not negatively affect the
administration of justice because the court had other matters pending against
appellant in the same case number which had yet to proceed to trial.
{¶71} Just prior to the sentencing hearing, however, appellant entered a plea
to escape, and the state dismissed the two remaining counts in the indictment, both
receiving stolen property counts (cars). (Tr. 2, 10). The state also dismissed two
other indictments: involving improper conveyance into a detention facility and two
counts of assault on a police officer. (Tr. 4, 11). And, the state agreed to
recommend a concurrent sentence on the escape count.
{¶72} At sentencing, defense counsel advised that the defendant wanted the
plea withdrawal matter decided that day (because he “wants to delay no
transportation”). (Tr. 18). As the prosecutor had not seen the motion yet, the court
had the prosecutor review it at that time. (Tr. 17). In arguing the motion, defense
-16-
counsel initially merely stated that pre-sentence motions should be liberally granted
and left the decision with the court. (Tr. 19).
{¶73} In responding, the state set forth arguments concerning the various
factors to be considered. The state noted that the court was holding a full hearing on
the motion. The state pointed out that the plea negotiations were extensive in this
case that had been pending since 2004 and that the court held a full plea hearing.
(Tr. 19-20, 22). The prosecutor characterized the reasons for withdrawal expressed
in the motion (stress about other pending charges) as inadequate, emphasizing that
the defendant does not claim actual innocence. (Tr. 20-21). The state suggested
that the defendant already received benefits from the plea in the form of a postponed
sentencing, which allowed him to benefit from a reduced bond pending trial in the
murder case. (Tr. 21).
{¶74} It was urged that the motion was not timely as it was filed the day
before sentencing. (Tr. 20). It was emphasized that the plea was entered on the
morning the case was set to proceed to trial; thus, the state had all its witnesses
present that day (as opposed to a plea entered at a pretrial hearing). (Tr. 21). The
prosecutor alleged prejudice as this 2004 case would be put back on the docket after
remaining inactive for eight months, asserting that some of the witnesses were out-
of-state. As an example of how difficult it was to find witnesses for old cases, it was
noted how they could not find a witness in appellant’s murder case and had to use
her prior testimony. The prosecutor then lamented that these three offenses never
went to trial, so no prior transcripts exist (as they did in the murder case). (Tr. 23).
{¶75} Defense counsel then opined that the state’s timeliness argument
carried no weight because the charges in the plea are in the same indictment as the
charges that went to trial and that a defendant can rightly wish to change his plea on
some charges after receiving a guilty verdict on other charges. (Tr. 25-26). Defense
counsel urged that at the time appellant pled to the carjacking case, he was
anticipating the murder trial would turn out differently. (Tr. 26). Counsel reiterated
the claim in the motion that the defendant was under stress at the time of the plea
due to the multitude of charges pending against him. (Tr. 26-27). Finally, counsel
-17-
argued that if the state was ready to go to trial eight months ago, they could be ready
again. (Tr. 27).
{¶76} The prosecutor then complained that the plea had apparently been
merely a defense strategy with a preconceived intent to seek withdrawal if the
defendant was convicted in the murder case. (Tr. 27-28). The state urged that being
convicted after a jury trial on other offenses is not a valid reason for plea withdrawal.
(Tr. 28). Defense counsel replied, “It’s absolutely a legitimate reason if you have the
hopes that that would not occur.” (Tr. 28).
{¶77} Appellant then spoke. He reminded the court that he previously sent a
letter to the court expressing a desire to withdraw the plea. (This letter is not in the
file or recorded in the docket as being received for filing.) He explained that the only
reason he pled guilty to the carjacking offenses was because he thought his co-
defendant would be testifying against him. (Tr. 29).
{¶78} The co-defendant in the carjacking case, who was not the same co-
defendant as in the murder case, was incarcerated in the Department of Youth
Services. This co-defendant had been offered a deal in exchange for his testimony
against appellant and was subpoenaed to testify at the trial scheduled for the
morning the plea was entered. Appellant disclosed that his reason for plea
withdrawal was that he recently learned that his co-defendant had been proclaiming
that he would not have testified against the defendant had he taken the case to trial.
(Tr. 29-31).
{¶79} It was then mentioned that inmates typically make such remarks after
their testimony is no longer needed. It was also remarked that the state would have
presented the victim’s testimony against appellant in any event. (Tr. 31). In the end,
the trial court overruled the plea withdrawal motion in the carjacking case.
{¶80} On appeal, appellant contends that his duress combined with his belief
that his co-defendant would be testifying against him are sufficient reasons for plea
withdrawal. He states that his motion should not be considered untimely. He also
argues that the state did not show prejudice because the mere reactivation of a case
-18-
on the docket is not a sufficient showing of prejudice and urges that there is no
indication that the case involves out-of-state witnesses as the state claimed.
{¶81} Absent a manifest injustice, a motion to withdraw a guilty plea can only
be made prior to sentencing. Crim.R. 32.1. Thus, a presentence motion to withdraw
“should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584
N.E.2d 715 (1992). Still, a defendant does not have an absolute right to withdraw a
guilty plea prior to sentencing. Id. There must be a reasonable and legitimate basis
for plea withdrawal. Id.{¶82} The decision regarding whether a reasonable and legitimate basis
exists is within the sound discretion of the trial court and that decision thus will not be
disturbed by a reviewing court absent an abuse of discretion. Id. A mere error in
judgment is not an abuse of discretion; rather, we only reverse if the denial of plea
withdrawal was unreasonable, arbitrary, or unconscionable. Id. The good faith,
credibility, and weight of the movant's assertions in support of the motion are
primarily questions for the trial court. State v. Vari, 7th Dist. No. 07MA142, 2010-
Ohio-1300, ¶ 78.
{¶83} This court has set forth a non-exclusive list of factors to be weighed in
considering whether to allow presentence plea withdrawal: (1) the representation
afforded to the defendant by counsel, (2) whether the defendant understood the
nature of the charges and potential sentences, (3) the extent of the plea hearing, (4)
the extent of the hearing on the motion to withdraw, (5) whether the trial court gave
full and fair consideration to the motion, (6) the reasons for the motion, (7) whether
the accused was perhaps not guilty or had a complete defense to the charge, (8)
whether the timing of the motion was reasonable, and (9) whether the state will be
prejudiced by withdrawal. State v. Cuthbertson, 139 Ohio App.3d 895, 898-899, 746
N.E.2d 197 (7th Dist.2000), citing the factors first set forth in State v. Fish, 104 Ohio
App.3d 236, 240, 661 N.E.2d 788, 790 (1st Dist.1995).
{¶84} In Cuthbertson, we reversed the trial court's denial of the defendant's
plea withdrawal motion as there was no allegation of prejudice to the state, counsel
was not very involved in the plea withdrawal request, the defendant claimed that he
-19-
was not the perpetrator of the murder but was merely a witness, and the motion was
timely filed two weeks before the scheduled sentencing hearing and one week after
the plea hearing. Cuthbertson, 139 Ohio App.3d at 899–900.
{¶85} Still, although a lack of prejudice to the state is an important factor, the
mere lack of prejudice does not mandate plea withdrawal. State v. Leasure, 7th Dist.
No. 01BA42, 2002-Ohio-5019, ¶ 19. No one of the factors is conclusive.
Cuthbertson, 139 Ohio App.3d at 899. We proceed to review the factors in light of
the particular circumstances in this case.
{¶86} As to the first factor, there is no allegation that counsel rendered
ineffective assistance, and it appears that counsel afforded proper representation
throughout this case. Regarding the second and third factors, the plea hearing was
not said to be lacking, and appellant does not claim that he did not understand the
nature of the charges or the potential sentences. Plea negotiations were extensive;
with different counsel representing appellant in the early years of negotiation so that
he had the benefit of varied advice regarding the carjacking case.
{¶87} Relevant to the fourth factor, the hearing on the plea withdrawal motion
proceeded on the day of sentencing as requested by appellant. Counsel had the
opportunity to present his arguments, and the defendant was permitted to make his
own arguments concerning plea withdrawal. The record evinces that the trial court
gave full and fair consideration to the motion and appellant’s statements.
{¶88} It is mainly the last four factors on the above list that are at issue here.
The reason for plea withdrawal expressed by counsel in the motion was that
appellant was stressed about other charges. This does not provide a strong reason
for plea withdrawal in itself but rather could provide state of mind evidence if there
were a claim of undue pressure or the like, which there is not.
{¶89} As aforementioned, defense counsel then expressed orally that it is a
legitimate strategy to determine whether to seek plea withdrawal based upon whether
the defendant is found guilty by a jury on other counts. However, this claim does not
weigh in appellant’s favor. Plea withdrawal should not be encouraged merely
-20-
because a defendant loses on other counts that he supposedly anticipated that he
would win.
{¶90} Appellant expressed to the trial court that he only pled guilty in the
carjacking case because his codefendant was subpoenaed from custody at the
Department of Youth Services to testify against him. He believed there was no way
to win if this codefendant was testifying. According to appellant, he was seeking plea
withdrawal because this incarcerated codefendant later told someone that he would
not have testified against appellant had his case gone to trial that day.
{¶91} This is a different scenario than that where, for instance, a victim is
changing her story. In fact, it is not even the changing of a story; it is merely a claim
that a witness would have rejected the deal offered by the state and would have
refused to testify. As defense counsel conceded, codefendants who agree to testify
against the main defendant often make this claim once they are relieved from having
to testify due to the main defendant’s plea agreement.
{¶92} Moreover, merely because appellant heard that this codefendant had
been proclaiming that he would not have gone through with the deal to testify does
not mean that this is in fact the truth. And, there is no indication that appellant had a
complete defense to the charge. The police found him in the victim’s car after a car
chase later that day, and the victim was going to testify against appellant in any
event.
{¶93} The timeliness factor weighs against appellant here as well. The
motion was filed eight months after he pled guilty, and he waited until the day before
sentencing to file the motion. Timing issues are not erased based upon a desire to
wait and see how a jury rules on other charges.
{¶94} As for prejudice to the state, the state points out that the 2003
carjacking charges had been pending for over six years when appellant entered his
plea. The state was prepared for trial on the morning the plea was entered. They
had all of their witnesses and evidence prepared that day. Appellant argues that this
is an admission that they are not prejudiced because they were ready then.
However, that was eight months prior to the plea withdrawal motion. Memories were
-21-
already fading; eight months later, they would be more faded. Unlike some other
cases, this was not a matter of weeks.
{¶95} In addition, the state told the court at the plea withdrawal hearing that
some of their witnesses have moved out of state. The ability to collect the witnesses
again after they were relieved of their testifying duties was thus called into question
by the prosecutor (who had just received the motion at the hearing). In fact,
(according to appellant’s own claim) a codefendant, whom the state had transported
to testify on the day of the plea, may have since been persuaded out of testifying
while incarcerated.
{¶96} Rather than weighing in the defendant’s favor, this claim may be used
by the trial court in favor of the state on the prejudice factor. See State v. Scott, 7th
Dist. No. 08MA12, 2008-Ohio-54032, ¶ 18 (reluctant witness can establish prejudice);
State v. Johnston, 7th Dist. No. 06CO64, 2007-Ohio-4620, ¶ 10-12 (prejudice to state
can be inferred by facts showing reluctant witness). And, it appears that the
codefendant may already have been provided consideration for agreeing to testify at
the trial which never ended up occurring due to appellant’s plea; if the claim about
not testifying in a future trial is true, then the state may suffer prejudice in reworking
the codefendant’s case as well.
{¶97} Furthermore, the motion to withdraw the guilty plea alleged that the
state would not be prejudiced because other charges were still pending in this case.
However, appellant then entered a plea to one of those charges, and the other two
charges were dismissed as part of the plea deal. Plus, two other cases were
dismissed. Thus, appellant’s own actions the day after filing his plea withdrawal
motion eliminated this argument.
{¶98} Finally, the trial court and the parties all agreed that sentencing on this
indictment should proceed at one hearing. In order to maintain this goal, the
sentencing on the aggravated murder, aggravated robbery, receiving stolen property,
and escape counts would have to be postponed indefinitely if plea withdrawal were
permitted on the three carjacking charges.
-22-
{¶99} In any event, prejudice is just one factor, and a lack of prejudice to the
state does not automatically allow presentence plea withdrawal. Leasure, 7th Dist.
No. 01BA42 at ¶ 19. Rather, presentence plea withdrawal is a matter within the trial
court’s sound discretion. Xie, 62 Ohio St.3d at 527. Considering all of the facts and
circumstances existing in this case, we cannot conclude that the trial court abused its
discretion.
{¶100} The trial court heard appellant's claims at the withdrawal hearing and
was in the best position to resolve his good faith and credibility and determine the
weight of his assertions in support of his plea withdrawal motion. See Scott, 7th Dist.
No. 08MA12 at ¶ 26. There are some factors that arguably support appellant's
argument for plea withdrawal; however, a reasonable trial court could use its
discretion to determine that the weight of the factors tips in favor of denying the
request for plea withdrawal. See id. Consequently, this assignment of error is
overruled.
ASSIGNMENT OF ERROR NUMBER FIVE
{¶101} Appellant’s fifth assignment of error provides:
{¶102} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND AN
ABUSE OF DISCRETION BY PERMITTING THE INTRODUCTION OF THE
TRANSCRIPT OF A WITNESS AT THE TRIAL OF THIS CAUSE IN VIOLATION OF
THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”
{¶103} The state introduced the transcribed testimony of a witness from the
first trial of the murder and robbery charges because they could not locate this
witness for the trial after remand. (Tr. 425-440). This witness was the cousin of
Damon Clark who was in a dating relationship with appellant at the time of the
murder. (Tr. 425-426). She testified that Damon Clark and appellant arrived at her
house around 1:30 a.m. on December 12, 2003 and slept at her house. (Tr. 427).
When they woke up, they asked her if she saw the news. (Tr. 428).
{¶104} This witness was asked if appellant thereafter talked to her about what
he did, and she initially said no. When further asked about the statement she gave
to police, she then testified that appellant told her that he shot the victim. (Tr. 430-
-23-
432, 435, 439). She testified that appellant was worried that Damon Clark “was
going to tell on him.” (Tr. 431, 435). Appellant also told her that he loved her. (Tr.
435). On cross-examination, defense counsel asked if she received pressure from
her family to take Damon Clark’s side of the case, and she answered, “Somewhat.”
(Tr. 437).
{¶105} On appeal, appellant argues that the trial court abused its discretion by
permitting the introduction of this prior testimony because there was insufficient
evidence that she was unavailable to testify and there was not a similar motive to
develop her testimony in the first trial, claiming that the remand altered the trial
strategy. This objection was lodged below as well. (Tr. 328-329). Appellant stresses
how important it was for the jury to evaluate the demeanor of this witness as she was
presenting an admission of appellant and she was pressured to take her cousin’s
side.
{¶106} Under certain circumstances, former testimony is not excluded by the
hearsay rule when the declarant is unavailable as a witness. Evid.R 804(B). A
declarant is unavailable if she is absent from the hearing and the proponent of the
declarant's statement has been unable to procure her attendance by process or other
reasonable means. Evid.R. 804(A)(5). If the state presents their witness’s prior
testimony from another hearing in the same or a different proceeding, the defendant
must have had an opportunity and similar motive to develop the testimony by cross-
examination. See Evid.R. 804(B)(1). Thus, the prior testimonial statements of the
state’s witness are subject to the requirements of unavailability and prior opportunity
to cross-examine. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004).
{¶107} We begin with an analysis on unavailability. A witness is not
considered unavailable unless the prosecution has made reasonable, good faith
efforts to secure the presence of the witness at trial. See Ohio v. Roberts, 448 U.S.
56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (abrogated in part on other grounds
by Crawford); State v. Keairns, 9 Ohio St.3d 228, 230, 460 N.E.2d 245 (1984). This
court has concluded that where the state subpoenaed a witness’s last known
-24-
address and used the U.S. Marshal’s Service to try to locate the witness, the trial
court could properly find that the state made reasonable, good faith efforts to secure
the witness at trial. State v. Oliver, 7th Dist. No. 07MA169, 2008-Ohio-6371, ¶ 47.
{¶108} On February 17, 2011, the trial court took testimony on this witness’s
unavailability from an investigator with the prosecutor’s office. The investigator had
been a trooper and a sergeant with the Ohio State Highway Patrol for over twenty-
eight years. (Tr. 323). He stated that he was unable to serve a subpoena on the
witness for this trial or the last time a trial was set. (Tr. 324-325).
{¶109} The investigator used LEADS to check the witness’s motor vehicle
record for a driver’s license or vehicle ownership. (Tr. 324-325). He found that she
does not have a driver’s license but only has a state ID card that was issued in 2007.
(Tr. 327). He also learned that she does not own a car. (Tr. 328). The investigator
checked the witness’s criminal record to discover any recent addresses. (Tr. 328).
He checked with the Adult Parole Authority (as she was previously on probation
through APA), and he learned that she had completed probation a year before. (Tr.
326). The investigator testified that the Victim-Witness program checked their
records and tried to find the witness. (Tr. 327). He asked the sheriff’s department if
they had served her recently and obtained alternate addresses from the Youngstown
Police Department. And, he gathered the old addresses on previous subpoenas.
The investigator also performed a general internet search for the witness. (Tr. 325).
{¶110} From all of this information, the investigator then personally traveled to
seven or eight addresses in search of this witness. A couple people told him that she
previously lived at a particular address, but they no longer knew her whereabouts.
He reported that many of the addresses are now vacant houses. (Tr. 325). He
concluded that the witness had not been around in the past year. (Tr. 328). The
prosecutor added that subpoenas were originally issued for a January 24 trial date
and they had thus been looking for the witness for over three weeks. (Tr. 329).
{¶111} Appellant opines that the state should have somehow tracked the
witness through her state identification card. This argument would seem to suggest
that when a person, whose testimony is sought in court, is carded by a private
-25-
business, a computer sends an alert to police so that they can immediately swoop
into the store in time to meet the ID card user. Even if this were an available method
for finding the general location of a terrorist, for instance, there is no indication that it
is a reasonable way to subpoena a witness. “[I]t is always possible to think of
additional steps that the prosecution might have taken to secure the witness'
presence * * * but the Sixth Amendment does not require the prosecution to exhaust
every avenue of inquiry, no matter how unpromising.” Hardy v. Cross, 132 S.Ct. 490,
495, 181 L.Ed.2d 468 (2011).
{¶112} Considering all of the efforts placed upon the record, we conclude that
the trial court did not abuse its discretion in finding that this witness was unavailable.
See Oliver, 7th Dist. No. 07MA169 at ¶ 47. The state established that it used
reasonable, good faith efforts to secure the witness but was unable to do so. See id.See also Evid.R. 804(A)(5) (state must be unable to procure the witness for trial “by
process or other reasonable means”).
{¶113} We thus move to the second prong of the test for admitting former
testimony: whether there was a prior opportunity and a similar motive to cross-
examine the witness. Evid.R. 804(B)(1). The defense did cross-examine this
witness under oath at the prior trial. The issue is thus mostly whether the motive to
cross-examine was similar.
{¶114} First, we accentuate that this witness’s prior testimony was from
appellant’s actual jury trial prior to an appellate remand. This works in the state’s
favor on this topic. See 1 Weissenberger, Ohio Evidence, § 804.24 (1995). We also
notice that appellant does not specify what questions he would have proposed this
time that were not asked at the first trial.
{¶115} Appellant generally urges that the motive to cross-examine was
different in the second trial because it contained an additional count: receiving stolen
property (the gun used in the murder). However, the testimony of this witness had
nothing to do with the murder weapon (unlike other witnesses who testified at the first
trial regarding the murder weapon and/or its source). The testimony of the witness at
issue was used to support the testimony of others that appellant admitted that he
-26-
committed the aggravated murder and the aggravated robbery of the victim on
December 11, 2003. We conclude that the motive to cross-examine this witness
would have been “similar” if not the same in both trials. See Evid.R. 804(B)(1)
(similar, not identical, motive).
{¶116} Finally, regarding appellant’s emphasis on the fact that this witness’s
testimony was incriminating and the fact that her credibility is important, these facts
may be relevant in an analysis of prejudicial versus harmless error. However, under
the above analysis, there was no error here. For all of these reasons, this
assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER SIX
{¶117} Appellant’s sixth assignment of error contends:
{¶118} “APPELLANT WAS DENIED DUE PROCESS AND THE LIBERTIES
SECURED BY THE [CONSTITUTION] WHEN HE WAS CONVICTED OF THE
OFFENSE OF RECEIVING STOLEN PROPERTY UPON INSUFFICIENT
EVIDENCE.”
{¶119} Appellant briefly argues that there was insufficient evidence that he
possessed a stolen gun to prove the receiving stolen property count. Specifically, he
states that there was no evidence that he was involved in the theft of the security
guard’s vehicle and thus the gun. Appellant also believes that there was no evidence
that the gun allegedly used in the murder was the one stolen from the security
guard’s vehicle.
{¶120} Sufficiency of the evidence is a test of adequacy rather than credibility
or weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). Whether the evidence is legally sufficient to sustain a verdict is a
question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements proven beyond a
reasonable doubt. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998);
State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). When evaluating the
sufficiency of the evidence to prove the elements, it must be remembered that
-27-
circumstantial evidence has the same probative value as direct evidence. State v.
Jenks, 61 Ohio St.3d 259, 272–273, 574 N.E.2d 492 (1991).
{¶121} We review the pertinent evidence. An off-duty security guard testified
that his 1993 blue Buick LeSabre was stolen from the parking lot of the 541 Club the
night before the murder. (Tr. 335-336). The trunk of the car contained his gun belt
with a holster, a silver and black .357 magnum, speed loaders, and .38 caliber
bullets. (Tr. 334-336). The security guard’s vehicle was eventually recovered, but
the weapon and its paraphernalia was no longer in the trunk.
{¶122} The security guard returned to the club the next night because the car
thieves who stole cars from that neighborhood were known to leave the cars near
where they were stolen. That next night, the victim was shot as his vehicle was being
stolen from the parking lot of the very same club. Other vehicles in the parking lot
also showed signs of attempted theft.
{¶123} Testimony connected appellant with a silver gun, its bullets, a holster,
and a gun belt soon after the murder. That is, the murder took place around 10:30
p.m. Near midnight, appellant and Damon Clark went to a friend’s house. She
testified that appellant was wearing a police-type holster on a belt. (Tr. 297-298). He
had a silver revolver. (Tr. 297). He removed empty shells from that gun and placed
them into an ashtray; he then emptied the ashtray into the trash and then took the
trash out. (Tr. 297-299).
{¶124} Besides seeing a car that fit the description of the murder victim’s car
in her driveway, she also saw a car that fit the description of the one stolen from the
security guard on the street in front of her residence. (Tr. 299-300). (As this
assignment of error only relates to the receiving stolen property charge, we need not
fully detail her further testimony connecting appellant with the murder or the
testimony involving appellant’s various admissions that he shot the victim.)
{¶125} As aforementioned, the security guard testified that a .357 magnum
takes .38 caliber bullets, which ammunition was stolen along with the gun. (Tr. 335).
The BCI agent, who analyzed the slugs found in the victim’s body, testified that a
.357 magnum is a type of gun that could have fired the bullets that killed the victim.
-28-
(Tr. 381). Finally, Gregory Hundley testified that appellant admitted to him in jail that
he shot the victim in the back. He believed that appellant told him that he used a
.357 magnum for which he had a holster. (Tr. 354-355).
{¶126} Thus, to sum things up, direct evidence was presented that the
security guard’s black and silver gun, holster, gun belt, and ammunition were stolen
within 24 hours of the murder from the same parking lot as the murder. Direct
evidence was presented that the gun was stolen by a car thief. The murder victim
was shot by appellant while he was stealing the victim’s car. The victim was shot by
a bullet that fits the security guard’s gun. Appellant was seen emptying spent shells
from a silver gun shortly after the murder. At the time, he was wearing a police-type
holster and a gun belt, not a usual sight (unless you are a police officer or a security
guard). And, the witness to appellant’s gun-emptying saw a car fitting the description
of the security guard’s car in front of her house and a car fitting the description of the
murder victim’s car in her driveway. (Tr. 299).
{¶127} As aforementioned, circumstantial evidence has the same probative
value as direct evidence. Jenks, 61 Ohio St.3d at 272–273. The combination of
direct and circumstantial evidence, viewed in the light most favorable to the
prosecution, allows some reasonable juror to find that appellant had the stolen gun at
some point. See Goff, 82 Ohio St.3d at 138; Smith, 80 Ohio St.3d at 113. See also
State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 97, ¶ 50
(emphasizing that the test is whether “any rational trier-of-fact could have found the
essential elements”). Under the unique set of facts existing in this case, we conclude
that the state presented sufficient evidence to allow the case to proceed to a jury for
their determination as to whether the elements of receiving stolen property were
proven beyond a reasonable doubt. This assignment of error is therefore overruled.
ASSIGNMENT OF ERROR NUMBER SEVEN
{¶128} “THE TRIAL COURT ERRED IN PERMITTING TESTIMONY THAT
APPELLANT RAN WHEN OFFICER ATTEMPTED TO ARREST HIM AND ERRED
IN GIVING A FLIGHT INSTRUCTION [VIOLATING] DUE PROCESS OF LAW
UNDER THE [CONSTITUTION].”
-29-
{¶129} A detective-sergeant testified that he received information concerning
appellant’s location on January 8, 2004. While officers were watching that location,
appellant drove away. (Tr. 384, 387-388). A traffic stop was attempted, but appellant
instead opted for a car chase, running two stoplights and a stop sign and then
crashing into a fence. Appellant then alighted from the vehicle, jumped the fence,
and fled into an industrial park. (Tr. 385). The police found him hiding behind
wooden crates at the industrial park. (Tr. 386).
{¶130} Appellant entered a continuing objection to this testimony. (Tr. 384-
385). In charging the jury, the court included a standard and detailed flight
instruction. (Tr. 561-562). Appellant objected to the giving of this instruction. (Tr.
572).
{¶131} On appeal, appellant contends that the evidence and the instructions
on flight were improper because there was no evidence that he knew the police were
looking for him due to the murder/robbery case. He notes that he had multiple cases
pending unrelated to the December of 2003 murder/robbery as he had escaped from
juvenile detention in October of 2003, which detention arose from the September of
2003 carjacking in Boardman.
{¶132} As the state replies, it is “universally conceded” that an accused's
flight, his resistance to arrest, acts of concealment, and related conduct are
admissible evidence of consciousness of guilt, which is evidence of guilt itself. State
v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997). “[A]dmissibility of evidence
of flight does not depend upon how much time passes between the offense and the
defendant's flight.” State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d
151, ¶ 169, approving State v. Alexander, 8th Dist. No. 51784 (Feb. 26, 1987)
(passing of six months between offense and arrest). A jury charge on a topic is
reviewed in the context of the entire jury charge. State v. Price, 60 Ohio St.2d 136,
141, 398 N.E.2d 772 (1979). And, a trial court’s decision to provide a particular jury
instruction based upon the facts of the case is not reversed absent an abuse of
discretion. State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989).
-30-
{¶133} Initially, we respond to appellant’s suggestion that he did not know
they were coming for him by pointing out that a detective testified that Damon Clark
was arrested first. (Tr. 481). This was appellant’s friend who was his accomplice in
the carjacking and present for the murder. Appellant spent the night with this friend
after the incident and spent the next day with him as well. This is the friend who
bought and transported the gas to burn the murder victim’s vehicle. A reasonable
inference can be made that appellant was aware that they would be looking for him
next. And, although the passing of time is not dispositive, appellant’s flight occurred
within a month of the murder.
{¶134} The detective-sergeant’s testimony provided more than sufficient
evidence of flight, resisting arrest, and concealment here. The motive for the various
acts of flight was a jury question, not a legal question merely because there
happened to exist undisclosed prior offenses. That is, when a particular defendant is
so involved in crime that, when he flees from the police, he could be fleeing for any
number of past offenses, this does not mean that a flight instruction cannot be
provided in the trial for the most extreme offense.
{¶135} In fact, if appellant wished to argue that his flight was not due to
consciousness of guilt for the murder but was due to other offenses, he could have
taken the chance and introduced his other criminal acts into evidence. As this
strategy had its own risks, he rationally chose not to do so.
{¶136} Finally, the trial court informed the jury that they should not consider
the flight evidence if they found that another motive prompted the flight or if they were
unable to decide what the defendant’s motivation was. (Tr. 562). This instruction
tempered the instruction that flight and resisting arrest can provide evidence of guilt.
See State v Taylor, 7th Dist. No. 08MA22, 2010-Ohio 1551, ¶ 27. For all of the
foregoing reasons, we conclude that the trial court did not abuse its discretion in
providing a flight instruction. This assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER EIGHT
{¶137} Appellant’s eighth assignment of error alleges:
-31-
{¶138} “APPELLANT WAS DENIED DUE PROCESS, A FAIR TRIAL, AND
THE LIBERTIES SECURED BY THE [CONSTITUTION] AS A RESULT OF THE
IMPROPER ADMISSION OF IRRELEVANT EVIDENCE AND IMPROPER
QUESTIONS AND ARGUMENTS OF THE PROSECUTOR.”
{¶139} Appellant complains here that the prosecutor used certain pieces of
evidence and made certain statements in closing argument to help convict him by
innuendo resulting in prosecutorial misconduct and the admission of evidence that
was not relevant in violation of Evid.R. 401 and 402.
{¶140} On review of a claim of prosecutorial misconduct during closing
arguments, we first determine whether the remarks were improper. State v. Smith,
14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). If the remarks were improper, we then
determine whether the remarks prejudicially affected the defendant's substantial
rights. Id.{¶141} In evaluating the propriety of the remarks, we begin with the principle
that the prosecution is entitled to significant latitude in its closing remarks. State v.
Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). The prosecutor may comment
on what the evidence has shown and the reasonable inferences that may be drawn
from the evidence. Id. Thus, the prosecutor may comment upon the testimony of a
witness and suggest the conclusions to be drawn therefrom. State v. Hand, 107 Ohio
St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 116.
{¶142} Relevant evidence is admissible unless prohibited by another rule,
statute, or the constitution. Evid.R. 402. Evidence which is not relevant is not
admissible. Evid.R. 402. Relevant evidence is defined as “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.” Evid.R. 401.
{¶143} The first argument made here is that the evidence and comments
concerning Damon Clark’s use of the white van should not have been admitted
because the van was not shown to have any connection to appellant. However, the
testimony was that Damon Clark was appellant’s accomplice in carjacking the murder
-32-
victim. In fact, appellant was concerned that Clark would turn him in. They were
together at a friend’s house after the murder, and they both slept at another friend’s
house that night.
{¶144} A white van was parked outside the first friend’s house while they were
there, and they left the murder victim’s car at that residence as well. Appellant asked
this friend for a milk carton so they could fill it with gas to burn the murder victim’s
vehicle. A video shows Clark using the white van while buying gas just before the
murder victim’s vehicle was found burning close by. A white van was also seen
leaving the scene of the car fire. And, there was testimony that appellant admitted to
witnesses that he shot someone the night of the murder while with Damon Clark.
{¶145} All of this sufficiently connects appellant to the white van and the
burning of the murder victim’s vehicle. It is background and setting for the offense
and its aftermath. It shows disposal of evidence belonging to the murder victim.
Someone besides Damon Clark had to assist in driving the two vehicles (the victim’s
vehicle and the white van) to the scene. As testimony established that appellant
admitted he shot someone the night of the murder, a reasonable inference can be
drawn about who disposed of that evidence with Clark, especially since appellant
obtained the milk carton with the expressed intent of burning the car.
{¶146} Consequently, this evidence was not irrelevant and was thus
admissible under Evid.R. 401 and 402. Likewise, the prosecutor’s reference to this
evidence was not improper as the state was entitled to review the evidence
presented and outline the reasonable inferences to be drawn therefrom.
{¶147} Next, appellant complains about the prosecutor’s statement in closing:
“the witnesses can’t tell you what Damon says because this is not the trial of Damon.
This is the trial of Darrin.” The defense objected to this statement, and the objection
was overruled. (Tr. 541). Appellant argues on appeal that this statement was meant
to suggest that Damon Clark had implicated appellant. However, the statement
appears more to have been the state’s attempt to explain why the witnesses were
able to testify about what appellant told them but could not legally testify as to what
-33-
anyone else told them. It does not appear to be a suggestion that Clark previously
testified against appellant.
{¶148} In any event, the contested statement was made in the state’s rebuttal
to the defense’s closing argument. In their own closing, the defense made
pronouncements such as, “How would she even know about them if Darrin Moore
wouldn’t have told her? Or Damon Clark told her? Her friend Damon Clark was
there, or do we forget about that conveniently? Her friend, Damon Clark, stood there
in that house.” (Tr. 519). Similarly, the defense continued, “Did either of them ever
say that Damon Clark shot or did anything to anybody or even participated in
anything? Darrin said. Darrin said.” (Tr. 523). As such, the door was opened to the
prosecutor’s statement. See State v. Brown, 38 Ohio St.3d 305, 316-317 (1988).
(comments are not prejudicial or erroneous where the defense invited or opened the
door to the comments).
{¶149} Appellant also takes issue with a statement made by the prosecutor in
closing argument regarding the prior testimony that was read into the record. At the
time of the murder, appellant was in “somewhat” of a dating relationship with Clark’s
cousin, whose house they slept at after the murder. In referring to her during closing,
the state noted that she was not available, that they could not find her, and that she
was uncooperative the last time she testified. (Tr. 507). The defense objected on the
grounds that the state was commenting on the absence of a witness. Appellant now
argues that there is no evidence that she was uncooperative at the time of her prior
testimony.
{¶150} However, the transcript of her testimony that was read into the record
contains evidence suggesting that she was in fact uncooperative. For instance,
when the prosecutor asked her if she ever talked to appellant about what happened
that night, she responded, “No, not really.” (Tr. 429). The state then elicited that
appellant came back to her house a few days later. The state again inquired if he
talked to her about what he did at that time. She again responded in the negative.
(Tr. 430). The state then resorted to asking her about her statement to the police.
She finally agreed that appellant did tell her that he shot the victim. (Tr. 430-431).
-34-
{¶151} Thus, the state was merely characterizing her two initial negative
responses as evidence that she was initially being uncooperative. This is not
prosecutorial misconduct. Rather, this is merely an example of the prosecutor
recapping the evidence, drawing reasonable inferences from the evidence, and
commenting upon those inferences. See Hand, 107 Ohio St.3d 378 at ¶ 116; Lott, 51
Ohio St.3d at 165. In accordance, this assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER NINE
{¶152} Appellant’s ninth assignment of error provides:
{¶153} “APPELLANT’S CONVICTIONS AND PRISON SENTENCES
VIOLATE THE [CONSTITUTION] AS THE CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶154} Weight of the evidence deals with the inclination of the greater amount
of credible evidence to support one side of the issue over the other. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In reviewing a manifest
weight of the evidence argument, the reviewing court examines the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of
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 reversed and a new trial ordered. Id.{¶155} A reversal on weight of the evidence is ordered only in exceptional
circumstances. Id. In conducting our review, we proceed under the theory that when
there are two fairly reasonable views of the evidence or two conflicting versions of
events, neither of which is unbelievable, it is not our province to choose which one
should be believed. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th
Dist.1999).
{¶156} Rather, we defer to the fact-finder who is best able to weigh the
evidence and judge the credibility of witnesses by viewing the demeanor, voice
inflections, eye movements, and gestures of the witnesses testifying before it. See
Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E. 1273 (1994); State v.
DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 1212 (1967). This is especially true
-35-
after a jury trial where the appellate court is discouraged from sitting as “the thirteenth
juror” and eliminating a jury verdict. See Thompkins, 78 Ohio St.3d at 387. In fact,
only a unanimous three-judge panel can reverse a jury verdict on manifest weight
grounds. Ohio Constitution, Art. IV, Section 3(B)(3).
{¶157} Appellant urges that the verdict is contrary to the manifest weight of
the evidence because there is no eyewitness testimony or physical evidence
connecting appellant to the murder and robbery. He contests the credibility of the
testimony of the friend who saw appellant disposing of empty shell casings and to
whom appellant admitted shooting someone. He notes that Damon Clark’s cousin,
who also testified that appellant admitted shooting someone, was receiving pressure
from her family to testify. He characterizes Mr. Hundley’s testimony as incredible as
he was a convicted robber with incentive to help the state convict appellant in return
for judicial release. Appellant concludes that it is not credible that he would admit that
he shot someone to these three people.
{¶158} Here, we have testimony by an off-duty security guard that his car was
stolen from the parking lot of 541 Club the night before the murder. (Tr. 335-336).
His gun belt with a holster, a silver and black .357 magnum, speed loaders, and .38
caliber bullets were all stolen from the trunk. (Tr. 334-336). When his car was
eventually recovered, these items were not likewise recovered.
{¶159} The day after that car theft, Robert Smith was robbed of his car in the
same parking lot. During this carjacking, he was shot four times by bullets that fit a
.357 magnum. (Tr. 381). A fifth bullet was also recovered from the scene.
{¶160} A friend testified that appellant and Damon Clark stopped at her house
near midnight on the night of the murder. She described Clark as nervous and
appellant as normal. She asked appellant if he was “up to no good,” and he
responded, “pow, pow, pow.” (Tr. 296, 308, 317). She testified that appellant had a
silver revolver and a police-like holster on a gun belt. She also said that she
witnessed appellant disposing of empty shell casings from this gun. (Tr. 297-298).
{¶161} On the street in front of her house, she saw a car fitting the description
of the car stolen from the security guard. (Tr. 299). In her back driveway, she
-36-
noticed a car fitting the description of the murder victim’s vehicle. (Tr. 300). Across
the street, she saw a van fitting the description of the one used to buy gas and
transport it to the scene of the murder victim’s burning car. (Tr. 299).
{¶162} After this witness learned about what happened to Mr. Smith, she told
appellant and Clark to get the murder victim’s car out of her driveway. (Tr. 301-302).
He admitted to her that he shot somebody. (Tr. 308). Appellant emphasizes that
although the murder occurred on the east side, she testified that “he said they shot
some guy on the south side.” (Tr. 302). This witness also testified that appellant
asked her for a milk carton so they could burn the car. (Tr. 302-303). Evidence
established that Damon Clark bought the gas used to burn the murder victim’s
vehicle and delivered that gas to the scene of the burning car, all while driving a
stolen white van. (Tr. 270-272, 477, 479-481).
{¶163} Another witness, Damon Clark’s cousin (whom appellant was dating at
the time), testified that appellant and Clark came to her house in the early morning
hours of December 11, 2003 and slept there. In the morning, they asked her if she
saw the news. (Tr. 428). She testified that appellant told her that he shot a man and
that he was worried that Clark was going to turn him in. (Tr. 430-431, 435).
{¶164} A fellow inmate testified that appellant admitted that he went out one
night to steal a car from a club on the east side and ended up shooting the person
whose car he then stole. (Tr. 352). Specifically, this “jailhouse snitch” testified that
appellant said the victim put his hands up and appellant “emptied the gun” by
shooting the victim in the back. (Tr. 353-354). According to this witness, appellant
mentioned that he used a .357, which he put into a holster after the shooting. (Tr.
355). Finally, when the police tried to arrest appellant some weeks later, he started a
car chase, crashed into a fence, fled on foot, and then hid from police. (Tr. 384-386,
387-389).
{¶165} In examining the entire record and all reasonable inferences that can
be gleaned therefrom, it does not seem that all twelve jurors lost their way in
weighing the evidence, assigning the credibility to the witnesses, or resolving the
-37-
conflicts in the evidence. See Thompkins, 78 Ohio St.3d at 387. A manifest
miscarriage of justice is not apparent, nor are exceptional circumstances. See Id.
{¶166} The witnesses’ stories are not unbelievable, and the inferences drawn
were reasonable, even if the opposite inference could have been drawn on some
matters as well. See, e.g., State v. Vondenberg, 61 Ohio St.2d 285, 289, 401 N.E.2d
437 (1980) (“it is the jury's function to weigh competing inferences, and to accept the
one which it finds to be more reasonable”); Gore, 131 Ohio App.3d at 201 (where
there are two conflicting versions, each one reasonable, we do not choose among
them). We thus defer to the jurors who were best able to weigh the evidence and
judge the credibility of the witnesses by viewing the demeanor, voice inflections, eye
movements, and gestures of those witnesses testifying before it. See Seasons Coal
Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E. 1273 (1994); State v. DeHass, 10
Ohio St.2d 230, 231, 227 N.E.2d 1212 (1967). This assignment of error is overruled.
{¶167} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
Waite, J., concurs.