State v. Rosemond , 2022 Ohio 111 ( 2022 )

[Cite as State v. Rosemond, 2022-Ohio-111.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180221
TRIAL NO. B-1507143
Plaintiff-Appellee, :
vs. :
O P I N I O N.
ANTHONY ROSEMOND, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: January 19, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Jon R. Sinclair, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Defendant-appellant Anthony Rosemond brings a second appeal of the
judgment of the Hamilton County Court of Common Pleas convicting him of murder
with specifications, three counts of felonious assault with specifications, three counts
of having a weapon while under a disability, trafficking in heroin with a specification,
and trafficking in cocaine with a specification.
{¶2} Rosemond’s convictions stemmed from two separate events, occurring
five days apart. His convictions for trafficking and for two of the weapons counts
stemmed from the December 3, 2015, traffic stop of a car in which police believed
Rosemond had been a passenger. Cincinnati Police Officer Robert Wilson testified
that he and his partner were on patrol in the Fay Apartments, a large apartment
complex, when a car drove past them in the opposite direction at an extremely high
rate of speed. Officer Wilson saw two adults in the front seat of the car.
{¶3} When the officers stopped the car, its only occupants were the driver,
Jourdan Bailey, and her young child in the back seat. The child said that his dad had
been in the car and that he had run off.1 In the car, the officers found a baggie of
cocaine between the passenger seat and the passenger door. In the back seat, the
officers found a large, distinctive Pelle Pelle jacket, with a state-issued identification
card belonging to Rosemond inside the jacket. Officers retained the identification
card and returned the jacket to the car. Then officers found heroin, cocaine,
marijuana, a digital scale, and two handguns in an apartment to which Rosemond
had access. Inside the apartment, they also observed clothing for a large adult male.
{¶4} Rosemond’s convictions for murder, three counts of felonious assault,
and one count of having a weapon while under a disability arose from an event that
1 At first, Officer Wilson thought the child said that “the aunt” had been in the car, so when he
asked the child if it was his aunt, the child said, “[N]o, it was my dad.” The defendant referred to
himself by the nickname “Ant” in recorded jail calls and had “Ant” tattooed on his hand
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occurred on December 8, 2015, when gunmen attacked four individuals in a car,
killing one of them and injuring the other three. The shooting was captured by
various security cameras in the area. Officer Wilson viewed the video recordings and
recognized the Pelle Pelle jacket from the earlier traffic stop. The jacket, when
retrieved by law enforcement, had gunshot residue on the sleeve. One of the injured
victims who testified at trial identified Rosemond as the shooter.
{¶5} Rosemond was indicted for offenses relating to both events in a single
indictment. He was convicted of the offenses after a jury trial. The trial court
sentenced him to an aggregate total of 57 years to life in prison. At the sentencing
hearing, the court did not advise Rosemond about postrelease control, but in its
sentencing entry, it imposed periods of postrelease control for each of the offenses,
including the murder.
{¶6} This court affirmed Rosemond’s convictions on direct appeal, but
remanded for proper calculation and award of jail-time credit. State v. Rosemond,
2019-Ohio-5356, 150 N.E.3d 563 (1st Dist.), appeal not accepted, 159 Ohio St.3d
1435, 2020-Ohio-3634, 148 N.E.3d 592 (“Rosemond I”). Rosemond then filed an
application to reopen his direct appeal under App.R. 26(B), asserting that he had
been denied the effective assistance of appellate counsel.
{¶7} We granted the application to reopen the appeal because it
demonstrated a genuine issue as to a colorable claim of ineffective assistance of
appellate counsel in failing to assign as error trial counsel’s ineffectiveness
concerning the imposition of an unauthorized period of postrelease control for
murder. State v. Rosemond, 1st Dist. Hamilton No. C-180221, 2021-Ohio-768, ¶ 1.
Accordingly, we appointed new appellate counsel and ordered that counsel brief the
issue of the imposition of postrelease control for murder and any other nonfrivolous
assignments of error or arguments not previously considered.
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{¶8} Rosemond presents two assignments of error for our review. We
consider the second assignment of error first.
I. Ineffective Assistance of Counsel
{¶9} In his second assignment of error, Rosemond claims that he was
denied the effective assistance of counsel at both the trial-court and appellate levels
when counsel failed to argue that the gun and drug charges should not have been
joined with the murder and assault charges in the same indictment under Crim.R. 8.
In Rosemond I, we found no prejudice to Rosemond in the trial court’s failure to
sever these charges under Crim.R. 14. Rosemond now argues that his counsel at trial
and on appeal should have argued misjoinder under Crim.R. 8, not severance under
Crim.R. 14.
{¶10} Trial counsel will not be considered ineffective unless counsel’s
performance was deficient and caused actual prejudice to the defendant. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Trial counsel’s
performance will only be deemed deficient if it fell below an objective standard of
reasonableness. Strickland at 688; Bradley at 142. A defendant is only prejudiced
by trial counsel’s performance if there is a reasonable probability that the outcome of
the proceedings would have been different but for the deficient performance.
Strickland at 694; Bradley at 142.
{¶11} The Supreme Court of Ohio has stated, “Under Strickland, a
reasonable probability is a probability sufficient to undermine confidence in the
outcome of the proceedings.” State v. Simpson, 164 Ohio St.3d 102, 2020-Ohio-
6719, 172 N.E.3d 97, ¶ 14, citing Strickland at 694. An appellant’s failure to satisfy
either prong of the Strickland test is fatal to an ineffective-assistance-of-counsel
claim. State v. Bandy, 1st Dist. Hamilton No. C-160402, 2017-Ohio-5593, ¶ 73;
Strickland at 697.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} In a reopened appeal, we review the performance of appellate counsel
under the same standard: an appellant must show that appellate counsel’s
performance was objectively unreasonable and that there is a reasonable probability
that the result of the appeal would have been different but for counsel’s errors. See
Simpson at ¶ 14, citing Strickland at 688; App.R. 26(B)(9) (the inquiry is whether
“the performance of appellate counsel was deficient and the applicant was prejudiced
by that deficiency.”).
{¶13} For purposes of this reopened appeal, we assume that the charges were
misjoined under Crim.R. 8. We further assume that trial counsel was deficient for
not arguing this to the trial court. We further assume that appellate counsel was
deficient for not raising it on appeal.
{¶14} Assuming without deciding that trial and appellate counsel’s
performance was deficient for failing to raise misjoinder under Crim.R. 8, we focus
our analysis on the second prong under Strickland as it is determinative in this case.
As to trial counsel’s failure to raise misjoinder, was there a reasonable probability
that the result of the trial would have been different if the gun and drug charges were
not joined with the murder and assault charges? And, as to appellate counsel’s
failure to raise misjoinder on appeal, was there a reasonable probability that the
result of the appeal would have been different? We answer both of these questions
“no.”
A. The Trial
{¶15} The limited issue before us is whether there is a reasonable probability
that: (1) the jury would not have found Rosemond guilty of murder and assault had
the gun and drug charges not been joined; or (2) the jury would not have found
Rosemond guilty of the gun and drug charges had the murder and assault charges
not been joined. We do not think there is a reasonable probability of either outcome.
Stated another way, there is not a probability sufficient to undermine confidence in
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OHIO FIRST DISTRICT COURT OF APPEALS
the outcome of the trial or appeal. The evidence was overwhelming as to each set of
charges.
1. Murder and Assault
{¶16} The evidence considered by the jury as to the murder and assault
charges consisted of, among other things: (1) eyewitness testimony; (2) admissions
by Rosemond in jail calls; (3) video recordings of the shootings, as well as
Rosemond’s actions immediately before and immediately after; and (4) forensic
evidence. Taken together, we cannot say that there is a reasonable probability that
the result of the trial would have been different had the other charges not been tried
at the same time.
a. Eyewitness Testimony
{¶17} Ariontez Nared identified Rosemond as the person who shot him. He
was clearly a reluctant witness, so much so that the trial court called him as its own
witness. In fact, Nared initially told the prosecutor that he was not shot at all, but
rather was hit by a bus.
[PROSECUTOR]: And you and I have met before; correct?
[NARED]: Yep.
[PROSECUTOR]: And you indicated to me that you didn’t want to
participate or testify; right?
[NARED]: Yep.
[PROSECUTOR]: On a prior occasion in court, you even indicated
that you were - - or strike that.
On one occasion you said you didn’t want to testify, and I said
that you had been shot, and that’s why I brought you here. Do you
remember that?
[NARED]: Um-hmm.
***
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OHIO FIRST DISTRICT COURT OF APPEALS
[PROSECUTOR]: And you told me you weren’t shot; you were hit by a
bus; right?
[NARED]: Yep.
[PROSECUTOR]: And you weren’t hit by a bus; right?
[NARED]: No, sir.
[PROSECUTOR]: You just didn’t want to testify; right?
[NARED]: I got frustrated. I was tired of being here.
{¶18} At trial, Nared testified as follows:
[PROSECUTOR]: Kind of describe for us how the shooting happened.
[NARED]: I can’t really tell you, for real. I came out the store, I
proceeded to make a left, and I started walking a little bit. Then I
heard the shots. As I heard them, I looked back.
Over my shoulder I seen a flash from the gun, and I seen his
bitch-ass, and I started walking, and basically - - not walking, but I
started running after I seen the flash - -
[PROSECUTOR]: Let me stop you for a moment. When you say you
“seen his bitch-ass,” who you talking about?
[NARED]: Him, right here.
[PROSECUTOR]: Which person?
[NARED]: Ant.
[PROSECUTOR]: Describe him for us.
[NARED]: Him. You-all know who the - - you-all know who he is.
Him, right here.
[PROSECUTOR]: I know this sounds ridiculous, but you have to - -
you have to identify him.
THE COURT: Is he - - what is he wearing?
[NARED]: White shirt and blue pants.
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OHIO FIRST DISTRICT COURT OF APPEALS
[PROSECUTOR]: This man right here?
[NARED]: The reason we’re here.
What?
[PROSECUTOR]: This guy right here?
[NARED]: Yeah.
THE COURT: He’s picked the defendant.
[PROSECUTOR]: Thank you, Your Honor.
[PROSECUTOR]: Did you see him before you were in the store?
[NARED]: Yeah; it was mass people out there. I ain’t going to
necessarily say I seen his face, but it was hella people out there.
[PROSECUTOR]: When the shooting started, you saw him?
[NARED]: Yep.
[PROSECUTOR]: Where was he?
[NARED]: Standing right there by the wall.
[PROSECUTOR]: And what - - how many - - could you tell how many
people were firing at you?
[NARED]: No; I just seen that flash. When I turn around, I see him.
Try to run, and I fell.
[PROSECUTOR]: Okay. How many times did you get shot, if you
know?
[NARED]: I got shot seven times by four different calibers.
{¶19} In addition, Nared specifically identified Rosemond as the shooter in
his answers on cross-examination:
[DEFENSE COUNSEL]: So you did not see his face?
[NARED]: I told you I seen his face. You heard me say that.
[DEFENSE COUNSEL]: I’m sorry?
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[NARED]: I said I seen his face. I turn around, the flash from the gun
and his face. That’s what made me see the face; the flash from the gun.
***
[DEFENSE COUNSEL]: Okay. Did you see anybody with a gun that
was shooting?
[NARED]: Yep.
[DEFENSE COUNSEL]; And how many people with guns were
shooting?
[NARED]: The person I seen, one.
{¶20} Even defense counsel conceded that Nared “pointed the finger” at his
client. He only argued that Nared’s testimony was not believable.
b. Jail Calls
{¶21} At trial, several recorded jail calls were introduced into evidence.
These calls show that Rosemond was concerned that law enforcement had him on
videotape. He was particularly concerned that they had him on videotape running to
the car after the shootings, and on camera at the scene, wearing the Pelle Pelle jacket.
But, most telling is his admission when talking to a friend about the shooting:
[ROSEMOND]: But, you know, I got the - - the shit - - the ba-ba shit
beat, though, you feel me? They - - all the witnesses said it wasn’t me.
You feel me?
MAN: Right.
[ROSEMOND]: And then dude - - then dude mama showed up and
was clowning on the detectives, and shit, like, You-all got the wrong
person. Let that boy go. You-all fucking up that boy’s life. You feel
me?
MAN: Right.
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[ROSEMOND]: So they - - then the one n***** who - - he got hit on
my shit, he told him, like, he ain’t get shot; he got hit by a
bus, and all this shit. You hear me? Like, so, like - -
(Emphasis added.)
{¶22} In that call, Rosemond admits shooting Nared, when he says: “So they
- - then the one [individual] who - - he got hit on my shit, he told him, like, he ain’t
get shot; he got hit by a bus, and all this shit.” Detective Greg Gehring testified that
he was familiar with this slang and that it meant, “He got hit on what I did, on my
shootings.” The only reasonable interpretation of this statement is that Rosemond is
telling his friend that the guy who got “hit” (shot) on his “shit” (gun or bullet) is now
saying he got hit by a bus. And this admission comes right after Rosemond has said
that all the witnesses said it was not him, so he is clearly talking about the murder
and assault charges, not the drug charges.
{¶23} In the very next call, Rosemond tells a woman that everyone showed
up and said it was not him. He is laughing about it. The woman says, “But it was
you.” And Rosemond does not deny it.
{¶24} And, in the final call, after Rosemond laughingly claims over and over
that they have nothing on him, the mother of his child reminds Rosemond that she
knows what happened because he came to her house. Rosemond repeatedly states
that they have nothing on him, but she says that she does. Rosemond begins calling
her a “rat,” and makes threatening comments.
{¶25} Taken individually and as a whole, these calls constitute admissions by
Rosemond and are evidence of his guilt. And additional charges of guns and drugs
do not change this evidence that the jury considered.
c. Videotape
{¶26} In addition to Rosemond’s own statements and the eyewitness
testimony identifying Rosemond as one of the shooters, the jury also had videotape
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence from the shooting that it considered. Among other things, the video shows
Rosemond following Nared out of the store, approaching the car Nared and the other
victims were in, walking toward the gunfire and not away from it, making
movements as if he were shooting, staying in the area of the gunfire until the
shooting was over, and jumping into a getaway car that had been idling and waiting
for him.
{¶27} As we found in Rosemond I:
And the video recording that captured the incident clearly
shows Rosemond approach the vehicle and dance around it for several
seconds as if firing a weapon. The video also seems to show flashes
around where only Rosemond was standing, indicating that he was
shooting. It was not until the shooting had ended that Rosemond was
seen fleeing from the scene. It strains credibility that someone would
be so close to the scene in which multiple shooters were attacking the
four men and remain there while the shooting occurred, only to run
when it was over. And while all the other cars in the area left, the
Tahoe that Rosemond would eventually get into remained until after
the shooting had ended and he had returned.
Rosemond I at ¶ 82.
{¶28} As the surveillance video recordings were played for the jury, Detective
Gehring described the events depicted in them. Shortly before the shooting
occurred, he noted that Rosemond’s getaway vehicle was in the market parking lot,
its driver “staging up” and “[g]etting ready to pick these guys [up] and get out of
there.” When Nared exited from the Schwarz Market to walk down the sidewalk to
the car where his three companions waited, the detective described Rosemond as
“following or stalking” Nared down the sidewalk. The detective testified that
Rosemond could be seen pointing as he approached the victims’ vehicle. He
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OHIO FIRST DISTRICT COURT OF APPEALS
acknowledged that a gun could not be seen in Rosemond’s hand, but stated, “I think
that motion, the action is consistent with someone pointing a gun.” He testified that
Rosemond “put his arm up pointing to where the gunshots are being received,”
noting that Rosemond was “advancing towards that area with his hand outstretched,
clearly[,] towards the time of the shooting.” He said that the video depicted
Rosemond as he continued to advance toward the victims’ car just before four muzzle
flashes could be seen.
{¶29} We also note that Rosemond himself was concerned with the
inculpatory nature of his actions captured on the videos. In his recorded jail calls,
Rosemond was worried that the videos showed him wearing the Pelle Pelle jacket
and showed him running to the car only after the shooting ended. He was concerned
that DNA tied him to the getaway car. When Rosemond initially spoke with police,
he said he had not heard about the shootings and denied it was him in the still
photos taken from the videos. The videos tell a different story.
{¶30} The dissent in Rosemond I disagreed with the majority as to what the
video showed, and does so again. But the jury reviewed this same evidence and, in
conjunction with the other evidence, found Rosemond guilty of murder and assault.
It reviewed the video, considered the officer’s testimony of what it showed,
considered all of the evidence relied upon by the dissent, and reached its own
conclusion. The issue in this appeal is whether there is a reasonable probability that
the jury would have come to a different conclusion on the murder and assault
charges had the gun and drug charges not been joined for trial.
d. Forensic
{¶31} In addition to the eyewitness identification, Rosemond’s statements,
and the video, the jury also considered forensic evidence. Among other things,
Rosemond’s jacket was tested and found to have gunshot residue (“GSR”) on it. The
dissent argues that the GSR could have been deposited on the jacket from someone
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OHIO FIRST DISTRICT COURT OF APPEALS
else’s shooting. While this is true, it is equally true that it may have been deposited
on his jacket because he shot a gun, just like the eyewitness testified. The jury
certainly could have considered the GSR along with all the other evidence in finding
Rosemond guilty of murder and assault. Again, the issue before us is whether there
is a reasonable probability that the result of the trial would have been different if the
murder and assault charges were not joined with the gun and drug charges.
2. Drugs and Guns
{¶32} The evidence considered by the jury as to the drug and gun charges
consisted of: (1) evidence found in Bailey’s apartment and vehicle; and (2)
admissions by Rosemond in jail calls. Taken together, we cannot say that there is a
reasonable probability that the result of the trial would have been different had the
murder and assault charges not been tried at the same time.
a. Evidence from Bailey’s apartment and vehicle
{¶33} As we stated in Rosemond I:
When [Bailey’s car] was first seen, there were two adults in the
front. When police eventually stopped the car, there was only the
driver. Rosemond insinuates that the police somehow coerced Bailey’s
son into saying that he was the one who jumped out of the vehicle.
But, at the time the child made that statement, the record seems to
indicate that the officers had no idea who the other person was. The
statement was made before Rosemond’s identification card was found
in the Pelle Pelle jacket. The drugs found in the car were found on the
passenger’s side of the car, where Rosemond had been sitting.
Additionally, other evidence provided circumstantial links
between Rosemond and the apartment and its contents. There were a
number of clothing items that would have fit someone of Rosemond’s
larger size.
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Rosemond I at ¶ 76-77.
b. Admissions by Rosemond
{¶34} As we said in Rosemond I:
But, more significant than that, the series of recorded jail calls
between Rosemond and Bailey made it relatively clear that, while there
was no actual DNA evidence found on any of the contraband,
Rosemond believed that it would be. The calls from Rosemond to
Bailey began the day he was arrested and brought to the Hamilton
County Justice Center. He asked her to get rid of various items,
providing evidence that they were working together in a criminal
enterprise. He said that “they made me take DNA for them gun.” He
then referred to the two guns in the apartment. In another call, he
essentially admitted the drugs [were] his when he told Bailey “he
didn’t even charge me with the dope, though. You hear me? He
doesn’t understand. Why they asking me about the guns but not my
drugs that were in that house too?” In another call, Rosemond is
talking to another person about Bailey, and he says, “But I’m gonna
tell her, like, man, my DNA all over that shit; the drugs and the guns.”
In another call, he says, “No, I am talking about the drugs. They got
my DNA on the drugs.”
Rosemond believed that his DNA would be or had been found
on the contraband seized from the apartment. And his flight from the
vehicle when police attempted to stop [it] was further evidence of his
consciousness of guilt.
Rosemond I at ¶ 77-78.
{¶35} With respect to the murder and assault charges, the jury considered
Nared’s identification of Rosemond as the shooter, Rosemond’s statements in the jail
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OHIO FIRST DISTRICT COURT OF APPEALS
call about the shooting, the videotape evidence, and the forensic evidence, including
the GSR on his jacket. With respect to the gun and drug charges, the jury considered
the testimony of the police officers as to the drugs found in Bailey’s car and as to the
guns and drugs found in her apartment, in addition to Rosemond’s numerous
statements about the guns and drugs in the jail calls. Given the overwhelming
evidence of Rosemond’s guilt as to each set of charges, we do not find a “probability
sufficient to undermine confidence in the outcome of the proceedings.” See
Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, 172 N.E.3d 97, at ¶ 14. Therefore,
we hold that Rosemond has failed to demonstrate that he suffered prejudice as a
result of trial counsel’s failure to argue that the murder and assault charges should
not have been joined with the gun and drug charges under Crim.R. 8.
B. The Appeal
{¶36} Because Rosemond has failed to demonstrate that he suffered
prejudice as a result of trial counsel’s failure to raise the issue of misjoinder under
Crim.R. 8, he cannot demonstrate that he was prejudiced by appellate counsel’s
failure to assign as error trial counsel’s deficiency. We hold that there is no
reasonable probability that the result of the appeal would have been different but for
appellate counsel’s deficiency. We overrule the second assignment of error.
II. Postrelease Control
{¶37} In his first assignment of error, Rosemond argues that the trial court
erred by imposing postrelease control as part of his sentence for murder and by
“fail[ing] to state terms of post-release control during sentencing for other
convictions.” The state concedes the error.
{¶38} Murder is a special or unclassified felony to which the postrelease-
control statute does not apply. See State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-
3748, 893 N.E.2d 462, ¶ 36; R.C. 2967.28(B). Rather, an offender convicted of
murder may become eligible for parole after the expiration of the minimum prison
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OHIO FIRST DISTRICT COURT OF APPEALS
term. R.C. 2967.13(A)(1). Therefore, the trial court erred in imposing postrelease
control as part of Rosemond’s sentence for murder. See Rosemond, 1st Dist.
Hamilton No. C-180221, 2021-Ohio-768, at ¶ 8. In addition, at the sentencing
hearing, the trial court failed to notify Rosemond about postrelease control when it
sentenced him on the remaining felony offenses. See R.C. 2929.19(B).
{¶39} Prior appellate counsel’s failure to challenge the imposition of
postrelease control prejudiced Rosemond. Therefore, we sustain the first assignment
of error.
III. Conclusion
{¶40} We hold that Rosemond was not sentenced in conformity with the
statutes governing postrelease control, and that prior appellate counsel’s
performance in that regard was prejudicially deficient. See App.R. 26(B)(7).
Accordingly, upon the authority conferred by App.R. 26(B)(9), we vacate that part of
our December 27, 2019 judgment affirming his sentences. And we vacate, and
remand for correction of, the postrelease control portions of those sentences, in
accordance with law and this opinion. In all other respects, the judgment of
conviction is affirmed.
Judgment accordingly.
BOCK, J., concurs.
ZAYAS, P.J., dissents.
ZAYAS, P.J., dissenting.
{¶41} I agree that the trial court erred in imposing postrelease control as part
of Rosemond’s sentence. However, I respectfully disagree with the majority’s
resolution of Rosemond’s second assignment of error. Rosemond’s trial counsel was
deficient for failing to file a motion to sever under Crim.R. 8 because the motion had
a reasonable probability of success. Appellate counsel was also deficient in failing to
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OHIO FIRST DISTRICT COURT OF APPEALS
raise the issue on appeal. The misjoinder resulted in substantial prejudice to
Rosemond.
I. Misjoinder
{¶42} “ ‘When a claim of ineffective assistance of counsel is based on
counsel’s failure to file a particular motion, a defendant must show that the motion
had a reasonable probability of success.’ ” State v. Jones, 10th Dist. Franklin No.
11AP–1123, 2012-Ohio-3767, ¶ 31, quoting State v. Carmon, 10th Dist. Franklin No.
11AP–818, 2012-Ohio-1615, ¶ 12. To determine whether trial counsel’s performance
was deficient, we must first determine whether the motion would have been
successful. See id.{¶43} Joinder under Crim.R. 8 “involves a question of law we review de
novo.” State v. Kennedy, 2013-Ohio-4221, 998 N.E.2d 1189, ¶ 24 (1st Dist.). Crim.R.
8(A) provides that “two or more offenses may be charged in the same indictment” if
the offenses are (1) “of the same or similar character”; (2) “based on the same act or
transaction”; (3) “based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan”; or (4) “part of a course of criminal
conduct.” Crim.R. 8(A). “Ohio law clearly favors joining multiple offenses in a single
trial if the requirements for joinder under Crim.R. 8(A) are met.” State v. Lee, 8th
Dist. Cuyahoga No. 109215, 2021-Ohio-2925, ¶ 12. However, if the charged offenses
do not meet at least one of the four joinder requirements, the charges should be
severed, “even in the absence of prejudice.” Kennedy at ¶ 24.
{¶44} Here, the state argues that joinder was proper under Crim.R. 8(A) as
offenses “connected together” due to the connection of “evidence, witnesses, and
overlapping investigations.” Essentially, the state argues that the charges were
connected together because the witnesses and evidence in both sets of charges
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overlapped. The state cites to no case law interpreting Crim.R. 8. to support that
proposition, and I could find none.
{¶45} Courts have found offenses sufficiently connected together when the
evidence shows the offenses are related to each other. See United States v. Cole, 857
F.2d 971, 973 (4th Cir.1988) (Finding offenses “connected together” where the
evidence established that the “various drug charges stemming from a large-scale
cocaine distribution ring with the defendant’s alien smuggling charges where the
aliens smuggled into the country began to sell cocaine for his distribution ring after
their arrival.”).
{¶46} Courts have found that offenses are not “connected together” when the
offenses are not logically related. See United States v. Terry, 911 F.2d 272, 274 (9th
Cir.1990) (finding “improper joinder of charges of narcotics possession and being a
felon in possession of a firearm, where narcotics were found in the defendant’s
vehicle forty miles away from his home and a search of the defendant’s home
thirteen days later uncovered a shotgun but no evidence of drug activity.”); United
States v. Cardwell, 433 F.3d 378, 387 (4th Cir.2005) (requiring “additional facts”
beyond the discovery of a gun during the investigation of a murder-for-hire plot as a
basis for joinder of the possession of a gun charge with the murder-for-hire charge);
United States v. Hawkins, 776 F.3d 200, 209 (4th Cir.2015) (explaining that “a mere
temporal relationship is not sufficient to establish the propriety of joinder.”).
{¶47} The state relies on State v. Jeffries to support its claim that offenses
are properly joined when they were investigated at the same time and have
overlapping witnesses. See State v. Jeffries, 2018-Ohio-2160, 112 N.E.3d 417, ¶ 55.
In Jeffries, this court found that the sex offense charges and drug charges were
properly joined under Crim.R. 8(A) because “the offenses were part of a course of
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OHIO FIRST DISTRICT COURT OF APPEALS
criminal conduct.” Id. at 56. Here, the state does not argue the charges were part of
a course of criminal conduct, and a review of the indictment and the evidence
presented at trial substantiates the lack of a nexus or link between the two sets of
charges.
{¶48} With respect to the overlapping investigations, the Ohio Supreme
Court expressly rejected that argument in State v. Atkinson, 4 Ohio St.2d 19, 211
N.E.2d 665, (1965). In Atkinson, the state argued that joinder was proper because
the charges “arose out of the investigation of counts one and two.” (Emphasis in
original.) Id. at 20. The court concluded that:
This proposal or argument of the prosecuting attorney would create a
new category or classification of offenses that may be joined in an
indictment under the heading of ‘Offenses Connected in their
Discovery.’ The statute does not make any such provision nor does the
record itself show any connection between counts one and two and the
third count in the acts or conduct of the defendant.
Id. at 21.
{¶49} The state further argues that the same witnesses and evidence were
necessary for each group of charges because the officer involved in the drug and gun
arrests found Rosemond’s jacket and provided Rosemond’s name to the officers
investigating the shooting, and Rosemond was wearing the jacket at the time of the
shooting. But, Crim.R. 8(A) provides no category of joinder on that basis.
{¶50} Moreover, Rosemond’s identity was not at issue in the shooting
offenses. In the opening remarks, the defense admitted that Rosemond was present
at the time of the shooting, but was not one of the shooters. Thus, the officer’s
testimony about finding the coat and Rosemond’s ID in the car, was not relevant to
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OHIO FIRST DISTRICT COURT OF APPEALS
the shooting offenses. Finally, as we acknowledged in Rosemond I, “the evidence
related to the counts arising from the December 3 traffic stop was distinct from the
evidence related to the December 8 shooting.” Rosemond I at ¶ 16.
{¶51} Therefore, I would hold that the two sets of offenses were not
connected together as contemplated by Crim.R. 8(A) and joinder was improper. Had
trial counsel filed a motion challenging the misjoinder, the motion had a reasonable
probability of success. Accordingly, I conclude that trial counsel’s performance fell
below an objective standard of reasonable representation.
II. The Misjoinder was Prejudicial
{¶52} To show prejudice, Rosemond must establish that “there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104
S.Ct. 2052, 80 L.Ed.2d 674. Prejudice from defective representation justifies
reversal only where the results were unreliable or the proceeding was fundamentally
unfair as a result of the performance of trial counsel. State v. Carter, 72 Ohio St.3d
545, 558, 651 N.E.2d 965 (1995), citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113
S.Ct. 838, 122 L.Ed.2d 180 (1993).
{¶53} “The prejudice inquiry, thus, focuses not only on outcome
determination, but also on ‘whether the result of the proceeding was fundamentally
unfair or unreliable.’ ” State v. Smith, 2016-Ohio-7566, 76 N.E.3d 551, ¶ 69 (5th
Dist.), quoting Lockhart at 369. See United States v. Cronic, 466 U.S. 648, 658, 104
S.Ct. 2039, 80 L.Ed.2d 657 (1984) (“[T]he right to the effective assistance of counsel
is recognized not for its own sake, but because of the effect it has on the ability of the
accused to receive a fair trial”). “Thus, an analysis focusing solely on mere outcome
determination, without attention to whether the result of the proceeding was
fundamentally unfair or unreliable, is defective.” Lockhart at 369.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶54} The majority’s analysis focuses solely on outcome determination
without any discussion of the unreliability and fundamental unfairness of the trial.
Moreover, the majority’s conclusion that “the evidence was overwhelming as to each
set of charges” is inconsistent with the Rosemond I conclusion that the convictions
on the drug and weapon counts were based upon “circumstantial evidence.”
Rosemond I at ¶ 79. With respect to the drug and gun charges, the Rosemond I
majority acknowledged that the “evidence provided circumstantial links between
Rosemond and the apartment and its contents” and the convictions were based on
“circumstantial evidence [linking] Rosemond to the drugs and weapons seized on
December 3, 2015.” Rosemond I at ¶ 77, 79. Bailey, who possessed the key to the
apartment, lived in the apartment and “faced the same charges related to the drugs
and guns. Id. at ¶ 6, 8, 112. “She resolved the charges by pleading guilty upon
reaching an agreement with the state.” Id. at ¶ 112.
{¶55} Additionally:
Rosemond did not live at the Nottingham apartment where the
drugs and gun were located. His identification card listed his address
as Hewett Avenue, and the docketing statement in this case reflects his
Hewett address. The search did not yield any mail or personal papers
belonging to Rosemond. Other than a pair of pants that “could” be
large enough to fit Rosemond, there is no evidence that Rosemond
lived there or was an overnight guest prior to the search.
Id. at ¶ 95 (Zayas, J., concurring in part and dissenting in part).
{¶56} Similarly, after viewing the evidence in the light most favorable to the
state, the majority in Rosemond I relied on circumstantial evidence to conclude the
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence was sufficient to support the convictions on the murder and assault
charges. Id. at ¶ 81-83. The alleged motive for the murders was that Austin, one of
the victims, “was executed for having testified in another murder trial.” Id. at ¶ 73.
“Austin had been trying to keep a low profile because he had testified in the trial of a
man who had killed Austin’s cousin.” Id. at ¶ 9. Yet the state presented no evidence
tying Rosemond to Austin, the person accused of murdering Austin’s cousin, or
Austin’s cousin. The state did not recover a murder weapon, and the video does not
depict Rosemond holding or firing a gun. The video confirms what Rosemond
admitted at trial: he was present during the shooting.
{¶57} The video also depicts two individuals who appear to be shooting
toward the victims, one on the sidewalk to the left of Rosemond, and one inches
away from him on the right. As the trace examiner explained, the GSR found on
Rosemond’s coat was the result of the jacket “having been in the vicinity” of a
discharged firearm. The trace examiner also testified that she did not know whether
the GSR was on the sleeve of the jacket or the body of the jacket. Thus, I note that
the majority’s assertion that the GSR was on the sleeve of the jacket is contrary to the
trace examiner’s testimony. Accordingly, the GSR evidence, at most, establishes
what Rosemond admitted at trial: he was present during the shooting.
{¶58} The shooting ended 15 seconds after it started, and at that time,
Rosemond ran to the parking lot. The video shows that the driver of the Tahoe
attempted to leave multiple times but was blocked in its parking spot by other cars
that were leaving. When Rosemond arrived at the parking lot, the driver, who finally
had a clear path, was leaving when Rosemond arrived. Thus, it cannot be said that
the video evidence conclusively established that the Tahoe deliberately remained at
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OHIO FIRST DISTRICT COURT OF APPEALS
the scene to serve as the “getaway car.” Unlike the majority, I rely on the events as
depicted in the video rather than the detective’s interpretation of the video.
{¶59} Additionally, as I previously articulated,
One of the victims testified that Rosemond did not shoot him,
and that he was shot by a skinny man in red. Notably, the video shows
a skinny man in red in the street, to the right of Rosemond, who
appears to be dancing as if he were shooting,2 and moving towards the
victim’s car. A second victim did not see any of the shooters.
A third victim, Nared was shot seven times by four different
calibers of guns. Initially, he did not implicate Rosemond in the
shooting. However, at trial, he testified for the first time that he saw
Rosemond standing by the wall after the shooting started. But, the
video shows that it was not Rosemond standing by the wall when the
shooting started. Instead, it was a man in white tennis shoes standing
on the sidewalk by the wall, moving his feet as if he were firing a gun,
who then ran down the sidewalk toward Nared.
Although Rosemond was visible in the video, he was never seen
with a gun. When the shooting started, he ducked next to the driver’s
side of the white car and was no longer visible. Simultaneously, the
skinny man entered the video and appeared to be shooting for the next
six seconds. Once the skinny man ran away from the scene, Rosemond
again appeared, plodding up the sidewalk next to the white car.
Rosemond is a very large man who is 6 feet 2 inches tall and weighs
300 pounds. He does not appear to move very quickly, and it took him
2 Gehring testified that when the feet are moving as if dancing, the person may be firing a weapon.
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OHIO FIRST DISTRICT COURT OF APPEALS
a full second to run the length of the white car. Notably, he was not
carrying a gun, and his hands were in his pockets.
Two seconds after Rosemond ducked behind the white car, four
flashes can be seen, but those appear to be coming from the right of
the victim’s car, which was approximately 54 feet away from where
Rosemond ducked behind the car. Three seconds after the flashes
stop, Rosemond plodded by the white car. It appears that he had been
hiding between the white car and the Honda, because he did not run in
front of the headlight of the victim’s car.
During the shooting, several people called 911 and provided
descriptions of the shooters. One of the callers described the suspect
as a black male, wearing a brown jacket with fur that left the scene in a
white Bronco. Another witness, Teresa, described one shooter as a
black male, 30-40, whose nickname was possibly Capone, wearing a
brown, puffy coat with a fur collar and standing next to a white SUV.
She also described a second shooter as an 18-19 year old male black
wearing a red shirt or sweatshirt and dark pants, who fled on foot.
According to one witness, the shooters were wearing masks. Another
witness stated that three suspects fled on foot. One witness provided
the nicknames of four suspects. Yet none of the witnesses who called
described Rosemond as one of the shooters.
Finally, I am not convinced that Rosemond’s statement that
Nared was “hit [on] my shit” was correctly interpreted by the majority.
The majority characterized this statement as a joking admission to
shooting Nared. However, in a different call where he is discussing the
accusations made by the police, he stated, “They hit me with some fake
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OHIO FIRST DISTRICT COURT OF APPEALS
shit.” Based on the context of this statement, I cannot conclude that
“hit me” refers to shooting.
Rosemond I at ¶ 113-118.
{¶60} I am equally unpersuaded by the majority’s interpretation of two other
jail calls as “admissions.” The majority claims that Rosemond did not deny an
accusation that he was the shooter. Having listened to the call, Rosemond was
speaking when the comment was made. Rosemond continued to speak as if he did
not hear the comment when the call was abruptly disconnected. The final call was a
contentious call with a woman named Brie. During that call, Brie threatened to harm
Rosemond’s mother, then he threatened to harm her. When she realized the call
was being recorded, she claimed that she knew what happened and would testify
against him. Rosemond repeatedly stated that there was nothing for her to testify
about. Then he offered to give her telephone number to the prosecutor, and she told
him not to. Rosemond called her a “rat” after she discussed working with the DEA
and building a case against him as a detective. The two bickered throughout the call,
and when Rosemond asked to speak with his daughter, she claimed he was not the
father. Given the context of the calls, I do not interpret them as admissions of guilt,
and I disagree with the majority’s conclusion that “the evidence was overwhelming as
to each set of charges.”
{¶61} But, our task is not to determine whether the evidence was sufficient.
The issue here is whether Rosemond was prejudiced by the misjoinder. Because the
evidence here is circumstantial and subject to multiple interpretations, the
misjoinder resulted in the improper admission of prejudicial evidence that rendered
the trial “unreliable” and “fundamentally unfair.” See State v. Carter, 72 Ohio St.3d
545, 558, 651 N.E.2d 965 (1995), citing Lockhart, 506 U.S. at 369, 113 S.Ct. 838, 122
L.Ed.2d 180.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶62} The admission of drugs and a gun unrelated to the shooting was
irrelevant and highly prejudicial and “leads only to inferences about matters that
were not properly provable in this case, i.e., the defendant’s dangerous character.”
State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 41, quoting
Walker v. United States, 490 F.2d 683, 684-685 (8th Cir.1974). The evidence of an
unrelated gun “could only have inflamed the passions of the jury. This evidence
added absolutely nothing to the [murder] case against the defendant except to
suggest to the jury that he was a bad man.” Id. at ¶ 43, quoting People v. Drake, 142
Mich.App. 357, 360, 370 N.W.2d 355 (1985). The admission of the gun was
“presumptively harmful error because of the danger the jury will consider the
accused’s bad character or propensity to crime as evidence of guilt.” Id. at ¶ 42,
quoting Agatheas v. State, 77 So.3d 1232 (Fla.2011).
{¶63} Likewise, the evidence related to the murder and felonious-assault
charges was unrelated to the drug and gun charges and would have been
inadmissible if the offenses had not been improperly joined. The admission of the
other acts evidence “suggested that Rosemond has a general propensity to commit
serious and violent crimes which can have a ‘substantial and injurious effect or
influence in determining the jury’s verdict.’ ” Rosemond I at ¶ 120, citing United
States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), quoting
Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
{¶64} As I previously explained,
The bad conduct offered in evidence to prove the unrelated
offenses certainly had a substantial effect on the jury’s verdict. See,
e.g., United States v. Holloway, 1 F.3d 307, 312, (5th Cir.1993)
(concluding that by failing to sever the weapons charge from the
unrelated robbery charges, “the jury emphatically was told that [the
defendant] was a bad and dangerous person ‘by his very nature,’ and
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OHIO FIRST DISTRICT COURT OF APPEALS
that a felon who carried a gun was just the sort of character who was
most likely to have committed the robberies charged in the
indictment.”). Here, as in Holloway, Rosemond “was unjustifiably
tried, at least in part, on the basis of who he was, and not on the basis
of the material evidence presented against him.” See id.The evidence submitted to support the unrelated charges
portrayed Rosemond as a violent and dangerous person as evidenced
by the prosecutor’s remarks that Rosemond “shot up people” and
“executed” and “gunned down” the victim in the shooting, and that he
was a guy who bought, sold, and used drugs and carried guns. The
jury was told that Rosemond was a violent, drug trafficker who
possessed guns and was likely to commit all of the charged offenses.
See id.And the record reflects that the jurors became fearful about
their names being publicly released during the course of the trial.
During an unrecorded break, the trial court, prosecutor, and defense
counsel had a conversation regarding the jurors’ concerns regarding
the murder case. By agreement, the trial court spoke with the jurors
and attempted to allay those concerns. On that same day, the court
ordered that all records with personally identifying information about
the jurors, including the entirety of the voir dire, be sealed from the
public view. The bad-conduct evidence regarding the unrelated
charges had a strong impact on the jurors’ emotions.
Rosemond I at ¶ 120-122.
{¶65} I conclude that the misjoinder resulted in a trial that was unreliable
and fundamentally unfair because of the deficient performance of trial counsel. See
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OHIO FIRST DISTRICT COURT OF APPEALS
Smith, 2016-Ohio-7566, 76 N.E.3d 551, at ¶ 69. I would reverse Rosemond’s
convictions and remand the cause for two new trials. Ultimately, “[s]ociety wins not
only when the guilty are convicted but when criminal trials are fair; our system of the
administration of justice suffers when any accused is treated unfairly.” Brady v.
Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Please note:
The court has recorded its own entry this date.
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