State v. English , 2020 Ohio 4682 ( 2020 )

[Cite as State v. English, 2020-Ohio-4682.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180697
TRIAL NO. B-1804296
Plaintiff-Appellee, :
vs. : O P I N I O N.
KAHLIA ENGLISH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 30, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael K. Allen & Associates, Michael K. Allen and Bryan R. Perkins, for
Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Kahlia English was convicted of murder and having weapons while
under a disability for fatally shooting Elijah Wheeler (“Elijah”), after Elijah became
the target of English’s anger toward Elijah’s uncle, Eric Wheeler (“Eric”). English
now appeals, arguing his convictions should be reversed due to the lack of credible
evidence, the admission and use of propensity evidence, the introduction of
unauthenticated Facebook evidence, the prosecutor’s misconduct, the jury’s
observation of him in handcuffs, the denial of his right to the effective assistance of
counsel, the trial court’s mishandling of the jury’s verdicts, a Batson violation during
voir dire, and the cumulative effect of error at trial. For the reasons that follow, we
affirm.
Background Facts and Procedure
{¶2} English was tried to a jury on charges related to the July 27, 2018,
shooting death of Elijah in the Cumminsville area of Cincinnati. Elijah was shot five
times and died shortly thereafter in front of a church on Weber Street at Borden
Street. The church was where members of the Wheeler and English families often
gathered with friends. The families are related by the marriage of Eric’s aunt to
English’s uncle. At the time of the shooting, there was a group of men gathered in
front of the church gambling and smoking marijuana. To prove that English
murdered Elijah, the state relied primarily on the testimony of Eric and two
eyewitnesses, Brandon Crawford—Eric’s first cousin but also a relative of English—
and Angela Hardin—a distant relative on English’s side of the family.
{¶3} Eric testified that he and English, known as “Kaleek,” shared a close,
“brother-like” bond, evinced by a hand tattoo on each of the other’s birthdate. That
close bond ended and became hostile in 2016 or 2017, when English was injured in a
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shooting. Eric would not elaborate about the demise of the close relationship. He
implied it involved his refusal to become involved when English was shot, explaining
that he likes to “stay in [his] own lane.” He further indicated that English, who he
knew to sometimes carry a firearm, “just be outgrowing people.”
{¶4} According to Eric, on the day of the shooting, he and English were in
front of the church in the late afternoon playing dice with others, including Elijah
and Crawford. At one point, Eric became so angry at English that he grabbed the
dice off the ground and threw them before leaving. Eric further testified that he
received a call from Crawford about 15 minutes later telling him that Elijah had been
shot.
{¶5} Crawford testified that he had known English as “Kaleek” for many
years and considered him a “friend.” Like Eric, Crawford said that on the day of the
shooting he was “chilling” in front of the church with English and others. Around
5:30 p.m., Eric became upset during a dice game, “threw the dice,” and then left.
Upon Eric’s dramatic departure, English also departed.
{¶6} According to Crawford, English returned to the church a short time
later in a car. After exiting from the car, English “called everybody together” to the
“church steps.” As Crawford walked toward the steps, he heard English give “a little
speech” to Elijah and the seven or so others who had assembled.
{¶7} Crawford recalled that during the speech English reminded the crowd
“that he had been shot before.” English then focused on Eric’s disrespectful actions.
English said that he “loved everybody” and did not know why Eric had thrown the
dice and he wished “it wasn’t like that.” English then taunted: “if anybody got a
problem with me,” “[y]ou-all going to have to kill me.” After a silent period, Elijah
spoke up and had words with English. Crawford could not remember details except
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that the argument involved something in the past and an accusation of a “set up.”
When Elijah defended his family, Crawford saw English pull out a gun and fire at
Elijah while threatening “to kill” everyone around him. He described English’s gun
as “kind of big,” and an “automatic,” not like a revolver.
{¶8} Crawford saw no other guns before he ran away from the scene while
English was shooting. He did not look back, but returned minutes later to find Elijah
lying on the sidewalk in front of the church steps taking his last breaths. English was
not there and the police soon responded.
{¶9} Crawford further testified that he called Eric and told him what he
had seen, and gave a statement to the police identifying “Kaleek” as the shooter.
{¶10} Hardin testified she was returning to her home on Weber Street in her
truck with the windows down just before the shooting. She heard “a lot of hollering”
from a “bunch of boys” in front of the church as she approached the intersection of
Weber and Borden Streets. As she turned the corner to Weber Street, she heard a
“gun shot.” When she looked out her side window opening, she saw a black male
with black hair “standing in the crowd” “on the sidewalk,” in front of the church with
an “arm out shooting the gun.” Then the crowd “r[an]” in different directions while
“screaming.” As she continued to her home on the dead-end street, she heard “four
or five shots” but did not look back at the crowd. She described the gun as “gray or
silver,” and further testified that she had not seen any other weapons, but had seen a
black, mid-sized sedan on the street.
{¶11} When asked by the prosecutor if the body type of the shooter matched
that of English, Hardin said that she did not know English by sight. She was
subsequently impeached on the former statement by the detective investigating the
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murder, who testified that Hardin had told the police that the shooter’s body type
matched that of English.
{¶12} The evidence collected by the police, who had arrived at the scene
about eight minutes after the shooting, corroborated Crawford’s and Hardin’s
eyewitness accounts. Although the police did not recover a weapon, the ballistic
evidence and location of the six “Hornady .40 caliber S&W” spent casings suggested
there was just one shooter, who had shot a larger-sized, semiautomatic handgun
from the sidewalk.
{¶13} Additionally, a surveillance video captured from a property down the
street from the church showed a black sedan traveling up Borden Street toward the
scene shortly before the shooting. Subsequently, three males are seen running away
from scene, followed less than a minute later by the same sedan.
{¶14} The state’s evidence also showed that English was arrested several
days after the shooting upon his arrival at his final appointment with his probation
or parole officer in Northern Kentucky. English was driving a black Nissan Altima
sedan. The unique features of that black Nissan appeared to match those of the black
sedan in the surveillance video. The Nissan was registered to English’s brother
Dante. The brothers generally did not look alike and Dante was bald, unlike English
and the shooter.
{¶15} Police officers searching the Nissan found cash amounting to $6,100
in the glove box, and bags of clothes and English’s personal items in the main
compartment, including English’s driver’s license and a motel receipt from July 29,
2020. Officers who searched English’s apartment found it deserted. Further,
English’s cellphone records showed pings off of cell towers in the Cumminsville area
just before and after the shooting.
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{¶16} When arrested, English was notified of his rights before speaking with
detectives. He provided several contradictory explanations as to how he learned that
Elijah, who “was like a cousin,” had died. The first was particularly incriminating.
He told the detectives he found out through Facebook, but when asked about his
Facebook page, he said he did not have one. The trial evidence showed that he did.
Ebony Wheeler (“Ebony”), Elijah’s aunt and Eric’s twin sister, authenticated at trial
postings from the Facebook page that she had created for English in 2011. This
evidence showed that instead of offering condolences to the Wheeler family after the
shooting, English posted a “no snitching emoji.” That July 29, 2018 posting was
printed out and admitted as an exhibit at trial, along with other postings Ebony had
seen on English’s Facebook page. Ebony additionally testified that she knew English
to carry a gun, and she described him as a “shystie” and “dangerous,” even though
she admitted that she “loved” him like a “brother.”
{¶17} Eloise Wheeler (“Eloise”), who was Elijah’s grandmother and Eric and
Ebony’s mother, went to the scene immediately after she learned about the shooting
from Eric. She arrived at the scene several minutes before the police.
{¶18} Eloise testified about what she had seen after the shooting and had
shared with the police, and gave background information about the relationship
between English and her family. She explained that English and Eric had been very
close, a relationship she did not condone because she thought English was “sly, slick,
and wicked” and “sold drugs.” She confirmed the more recent hostility between the
two, and said she had seen English and Eric “getting into it” several weeks before the
shooting at a Fourth of July gathering. Despite her dislike of English, she remained
Facebook friends with him.
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{¶19} English did not present any witnesses at trial. He did, however,
introduce several exhibits, including an image purportedly from his Facebook page
depicting him holding what looked like an assault-rifle style “toy” gun, marked by an
orange tip. Defense counsel argued that that toy gun was the same gun that was
partially depicted in a grainy Facebook post authenticated by Ebony. Other defense
exhibits included a photograph depicting Elijah and friends holding what looked like
real guns, and a copy of a 2010 murder indictment issued against one of Eloise’s sons
for a shooting at the same church corner.
{¶20} These defense exhibits were used during cross-examination to bolster
the theme of the defense, introduced during opening statement, that the church
corner was a frequent gathering place for “a gang of people known to carry guns,”
“any one of whom could have shot Elijah,” and that the jury would never know which
one had shot Elijah because of an inadequate police investigation and a Wheeler
family cover up.
{¶21} The final defense exhibit was a photograph of English with Eloise and
Eric, smiling together at a birthday gathering. Defense counsel argued that image
showed the Wheeler family witnesses were untruthful when they said that English
was “evil” and they did not want to be around him.
{¶22} In closing argument, the state asserted that it had established all the
elements of the offenses, citing the abundant evidence of guilt. The state contended
that it had additionally established English’s motive for killing Elijah: it was an
explosion of English’s building anger caused by Elijah’s uncle’s disrespect and lack of
support.
{¶23} At the conclusion of the trial, the jury found English guilty on two
counts of murder with firearm specifications and a single count of having weapons
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while under a disability. The disability arose from English’s stipulated-to prior
conviction for a felony drug offense.
{¶24} Before sentencing, English moved for a new trial on several grounds.
These included alleged irregularities involving the receipt and sharing of the jury’s
verdicts and the jury’s observation of English in handcuffs. The trial court overruled
the motion and, after merging the murder offenses, sentenced English to an
aggregate prison term of 21 years to life. English now appeals, raising ten
assignments of error. For ease of discussion, we address the assignments out of
order.
Sufficiency and Weight of the Evidence
{¶25} We first address English’s eighth and ninth assignments of error, in
which he argues his convictions are not supported by sufficient evidence and are
against the weight of the evidence.
{¶26} English argues the state did not prove he was the shooter beyond a
reasonable doubt because the state did not present forensic-type evidence connecting
him to the shooting, such as DNA samples, or evidence that the murder weapon was
found on him at the time of his arrest. Further, he claims there was evidence that
pointed to other suspects. Finally, he contends that the only witness to identify him
as the shooter—Crawford—was not credible.
{¶27} English’s challenge to the sufficiency of the evidence is meritless. As
the Ohio Supreme Court recently reiterated
An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed,
would convince the average mind of the defendant's guilt beyond a
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reasonable doubt. 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 of the crime proven
beyond a reasonable doubt.
(Internal citations omitted.) State v. McFarland, Slip Opinion No. 2020-Ohio-3343,
¶ 24.
{¶28} The McFarland court further emphasized the trier of fact’s
responsibility “ ‘[to] fairly [] resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.’ ” Id., citing
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
{¶29} To satisfy its burden in this case, the state was not required to present
DNA evidence connecting English to the crime or to recover the murder weapon
from him. English argues Crawford’s testimony could not be relied upon because he
suffered from the mental illness paranoid schizophrenia. But the record
demonstrates that Crawford was a competent witness to the shooting and a
competent witness on the stand at trial, having taken medication to control his
paranoid schizophrenia in both instances. The jury was able to view Crawford’s
demeanor at trial and immediately after the shooting, when he first identified
“Kaleek” as the shooter upon questioning by the officer responding to the scene,
because that officer’s body camera footage was admitted into evidence.
{¶30} English’s other arguments attacking Crawford’s credibility are
similarly untenable. He claims that the body camera footage shows Crawford
agreeing with the officer that “Kaleek’s” last name was “Walker.” But this is not
accurate. Crawford told the officer, “I don’t know his last name.” English’s
contention that Crawford conspired with Eloise and the Wheeler family in the
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minutes before the police arrived to concoct a story to frame him and alter the crime
scene is similarly unavailing based on the evidence. The body camera footage upon
the officer’s arrival shows Eloise extremely distraught and angry at the senseless
killing of her grandson over a “dice game.” She was also upset at the failure of
witnesses to cooperate with the police, shouting “there’s a bunch of mother*******
over there that can tell you what you need to know. If they don’t, I ain’t leaving.”
Thus, English’s claim of a cover up is incredible.
{¶31} Crawford’s testimony that English was the shooter was unwavering,
even when subjected to vigorous cross-examination. Moreover, his testimony was
corroborated by Hardin’s testimony and the physical evidence.
{¶32} English further argues that the state’s theory was undermined by
evidence that the crime involved a drive-by shooting from a blue car. He cites a
broadcast the responding officer received from the dispatcher relaying a report of a
“blue vehicle” and “shots fired out of that.” That report, however, does not
undermine the state’s evidence.
{¶33} First, the source of the cited 911 report is unknown, and the
dispatcher later relayed of a report of a “black” car at the scene, which Hardin and
the video surveillance confirmed. Notably, blue, like black, is a dark color. English
suggests that a blue car was at the scene when the police arrived and its occupants
were allowed to leave, but that car was “greyish” and contained a family with small
children.
{¶34} Second, two undisputed facts rendered incredible the claim that the
crime was a drive-by type shooting, and not a shooting that started on the sidewalk
in front of the church on Weber Street. First, Elijah was the only victim in the crowd
who was shot, sustaining five well-placed wounds. And, second, as the crime scene
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investigator explained, a spent casing found atop the landing of the nine steps in
front of the church could not have been fired from a vehicle due to the height of the
landing.
{¶35} Further, the report of “shots fired out of” a dark-colored car was not
inconsistent with Crawford’s testimony that he saw English shoot from the sidewalk,
and Hardin’s corroborating testimony that she saw the shooter in the crowd on the
sidewalk, because neither saw the shooter leave and fire his last shoots. They both
escaped the scene by travelling down Weber Street, a dead-end street, and away from
Borden Street. They did not see English leave the scene because, as the surveillance
video confirmed, English drove away on Borden Street. The other five spent casings
were found in Weber Street, one just next to the sidewalk in front of the church and
the others progressively closer to the middle of the street.
{¶36} English’s challenge to the sufficiency of the evidence further collapses
because his actions after the shooting were indicative of guilt. This includes the
indisputable evidence of flight, English’s use of the no snitching emoji on his
Facebook page, his conflicting statements during his police interview explaining how
he learned of the shooting, and his failure to reach out to the Wheeler family after the
shooting.
{¶37} When the evidence is viewed in the light most favorable to the state,
we conclude that any rational trier of fact could have found proof of guilt beyond a
reasonable doubt. Thus, we reject English’s sufficiency-of-the-evidence-based
challenge to his convictions.
{¶38} Our review of a claim that a jury verdict is against the weight of the
evidence involves a different inquiry. State v. McKnight, 107 Ohio St. 3d 101, 2005-
Ohio-6046, 837 N.E.2d 315, ¶ 71. But this is not an “ ‘exceptional case in which the
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evidence weighs heavily against the conviction.’ ” See State v. Thompkins, 78 Ohio
St.3d 380, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App. 3d 172, 175,
485 N.E.2d 717 (1st Dist.1983). We find that the jury neither lost its way nor created
a miscarriage of justice in convicting English of murder or the separate weapons
offense. The state rebutted English’s theories of innocence and presented
overwhelming evidence of guilt. Accordingly, we overrule the eighth and ninth
assignments of error.
Propensity Evidence
{¶39} In his third assignment of error, English argues that the trial court
erred when it allowed the jury to consider propensity-type evidence weighing
negatively on his character. This includes evidence that he was on “probation” or
“parole,” was “wicked,” “dangerous,” “sold drugs,” and carried and sought guns. In
addition to this testimony, English directs us to closing argument, when the
prosecutor remarked:
[N]ow, as I said before, we don’t have to prove motive, but I think
there was a motivation to kill Elijah Wheeler in this case. Eric Wheeler
said he had outgrown Kaleek. We had ample testimony describing
what type of person that Kaleek was in that community; that he was
wicked, that he was violent, that he did bad things. And Eric Wheeler
told you he was outgrowing him, he wanted to get away from that, and
that Kaleek did not like it, and that’s why he was saying stuff and
getting Eric upset.
{¶40} Later, in the rebuttal portion of closing argument, the prosecutor
argued:
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What type of person is Kahlia English? He’s got a terrible temper, he
carries guns, he’s not afraid to use. He shoots and kills someone, at
close range.
{¶41} English concludes that because these attacks on his character were so
pervasive and inflammatory, and were used by the prosecutor as proof of his guilt, a
purpose specifically prohibited under Evid.R. 404(A) and (B), the aggregate effect of
the evidentiary errors was a denial of his due-process right to a fair trial.
{¶42} Ohio’s rules of evidence contain exceptions to the principle that all
relevant evidence is admissible. State v. Morris, 132 Ohio St. 3d 337, 2012-Ohio-
2407, 972 N.E.2d 528, ¶ 12 (“Morris I”). Generally, the state is forbidden from
initially introducing evidence of the accused’s bad character until the accused
presents evidence of his good character for the purpose of proving conformity with
that good character. Evid.R. 404(A). “Although character is not irrelevant, the
danger of prejudice outweighs the probative value of such evidence.” State v. Lytle,
48 Ohio St. 2d 391, 401-402, 358 N.E.2d 623 (1976), vacated on other grounds, 438
U.S. 910, 98 S. Ct. 3135, 57 L. Ed. 2d 1154 (1978).
{¶43} Evid.R. 404(B), along with R.C. 2945.59, prohibits the admission of
other-acts evidence to prove a character trait for the purpose of showing (1) conduct
in conformity with that trait or (2) the accused’s general propensity to commit
crimes. State v. Hartman, Slip Opinion No. 2020-Ohio-4440, ¶ 21-22; State v.
Thomas, 152 Ohio St. 3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 35.
{¶44} A nonexclusive list set forth in the rule includes the use of probative
other-acts evidence for a limited purpose to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R.
404(B); R.C. 2945.59. That nonpropensity purpose must pertain to a “ ‘material’
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issue that is actually in dispute.” Hartman at ¶ 27, quoting Huddleston v. United
States, 485 U.S. 681, 686, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988). Further, there must
be “ ‘substantial proof’ ” that the defendant committed the alleged other act at issue.
Hartman at ¶ 28, quoting State v. Carter, 26 Ohio St. 2d 79, 83, 269 N.E.2d 115
(1971). Finally, the evidence must “connect[] to a proper purpose without relying on
any intermediate improper-character inferences.” Hartman at ¶ 23.
{¶45} Even so, the evidence is not admissible if its “probative value” for that
nonpropensity purpose “is substantially outweighed by the danger of unfair
prejudice.” Evid.R. 403; Hartman at ¶ 29, citing State v. Williams, 134 Ohio St. 3d
521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20. [“W]hen such evidence is only slightly
probative of a nonpropensity theory but has a high likelihood of unfairly prejudicing
the defendant or confusing or misleading the jury, the evidence must be excluded.”
Hartman at ¶ 33.
{¶46} The trial court’s provision of a “tailored” instruction to the jury on the
limited purpose of other-acts evidence can reduce the danger of unfair prejudice. See
Hartman at ¶ 34, 70; Williams at ¶ 24. These rules can guard against a conviction
based upon propensity evidence, which may violate the due-process right to a fair
trial.
{¶47} The questions ordinarily presented on appeal with respect to potential
propensity-type evidence is whether the evidence was admissible because “it [wa]s
probative of a separate, nonpropensity-based issue,” an issue of law, and if so,
whether the trial court abused its discretion by admitting it according to the
balancing test in Evid.R. 403. See Hartman at ¶ 22, 29-30. If we find error in the
admission of the evidence, we must then determine if the state has shown the error
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did not prejudice the defendant. State v. Morris, 141 Ohio St. 3d 399, 2014-Ohio-
5052, 24 N.E.3d 1153, ¶ 23 (“Morris II”).
{¶48} In determining whether to grant a new trial as a result of the
erroneous admission of evidence under Evid.R. 404(B), an appellate court must
consider both the impact of the offending evidence on the verdict and the strength of
the remaining evidence after the tainted evidence is removed from the record. Id. at
¶ 33. A “strong case” may require reversal if the evidentiary error is combined with
the prosecutor’s emphasis on the improperly admitted evidence, resulting in “blatant
prejudice.” Id. at ¶ 31-32. However, if, after the tainted evidence is removed, the
remaining evidence is overwhelming, the erroneous admission of character and
other-acts evidence may be deemed harmless beyond a reasonable doubt. See id. at ¶
32.
{¶49} Our review in this case is hampered because, as the state points out,
English did not object to this evidence on the basis now raised. Thus, English
forfeited all but plain error. See, e.g., Evid.R. 103(A)(1) and (D); Thomas, 152 Ohio
St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, at ¶ 32.
{¶50} Under the plain-error doctrine, the defendant bears the burden of
demonstrating that plain error affected his substantial rights. See Crim.R. 52(B);
Thomas at ¶ 32. He is required to show a “reasonable probability” that the error
affected the outcome of the trial, id. at ¶ 33; in other words, the type of error so
serious it deprived him of a fair trial, one with a result that is reliable. See
Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)
(explaining the reasonable-probability standard.). Even if the defendant meets his
burden, this court has discretion to ignore the error, and should do so except “to
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OHIO FIRST DISTRICT COURT OF APPEALS
prevent a manifest miscarriage of justice.” (Internal citations omitted.) Thomas at ¶
34.
{¶51} The alleged evidentiary errors occurred during the testimony of
Detectives Sieving and Gehring, Eloise, and Ebony. English cites several portions of
Ebony’s testimony, including testimony concerning other weapons evidence.
{¶52} The first incident involved firearm-related postings Ebony had seen
on English’s Facebook page that were printed out and admitted as exhibits. One
posting, state’s exhibit 27 (“Exhibit 27”), showed two loaded firearm magazines and
was captioned “60bangbang.” The other, state’s exhibit 28 (“Exhibit 28”), was a
blurry and partial image of an assault-rifle type gun. Defense counsel objected to the
admission of these exhibits on “relevancy” grounds, citing the age of the postings.
The trial court overruled the objection.
{¶53} Later, during cross-examination, defense counsel asked Ebony if her
relationship with English had soured a year before the shooting, and she agreed.
But she then explained that English was a “shystie” and “dangerous.” Defense
counsel did not object or move to strike the testimony. Subsequently, when defense
counsel was asking Ebony to concede that the blurry Facebook image in Exhibit 28
was of a toy gun, Ebony gave a variety of unresponsive answers, all indicating that
she had seen English with many guns. Later, Ebony replied to defense counsel’s
questioning by saying that English had brought guns to her mother’s house and had
guns in his sister’s basement. Defense counsel twice objected, and the court in
response instructed Ebony to simply answer the questions. Defense counsel did not
move to strike Ebony’s unresponsive testimony.
{¶54} Finally, English cites Ebony’s unobjected-to testimony on redirect
that she had seen English with “revolvers and pistols, and all kinds of guns” and that
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he had “been trying to bribe” her into getting “a gun and bullets” for him “since she
turned 18.”
{¶55} Although English objected at trial to Exhibits 27 and 28 on general
relevancy grounds, the test of Evid.R. 401, he does not articulate any relevancy-
based challenge now. Instead, he argues the exhibits involve “inflammatory” other-
acts evidence. Inflammatory other-acts evidence should be excluded under Evid.R.
403 because the probative value of the evidence for a nonpropensity purpose is
substantially outweighed by the danger of unfair prejudice. See Hartman at ¶ 29;
Williams, 134 Ohio St. 3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 20 and 24.
{¶56} The Ohio Supreme Court recently warned of error in the admission
of “other weapons evidence.” Thomas, 152 Ohio St. 3d 15, 2017-Ohio-8011, 92
N.E.3d 821, ¶ 35. At a minimum, “[t]he evidence must be excluded when it leads
only to inferences about the defendant’s character.” State v. Jones, 1st Dist.
Hamilton No. C-170647, 2020-Ohio-281, ¶ 32, citing Thomas at ¶ 41; State v.
Carusone, 1st Dist. Hamilton No. C-010681, 2003-Ohio-1018; State v. Crosby, 186
Ohio App. 3d 453, 2010-Ohio-1584, 928 N.E.2d 795, ¶ 16 (8th Dist.).
{¶57} The state argues that the trial court did not err in admitting Exhibits
27 and 28. Although the state did not expressly articulate the nonpropensity purpose
for offering the exhibits in the trial court, the state’s theory of the case suggests the
exhibits were offered to confirm Eric’s reason for disliking English, which helped to
explain English’s anger and prove English’s motive for shooting Elijah. On appeal,
the state articulates that the exhibits were relevant to English’s “knowledge of and
possession of guns,” at issue because an eyewitness testified to seeing English shoot
Elijah with a handgun and English pleaded not guilty to the charges. The state does
not argue that the exhibits contained the murder weapon, and it does not address
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whether the probative value of these exhibits to show the nonpropensity purpose was
substantially outweighed by the danger of unfair prejudice.
{¶58} We do not address the legal inquiry required of Evid.R. 404(B)—
whether the evidence was admissible for a nonpropensity purpose—because English
does not present that argument on appeal. But we agree with English that the
evidence should not have been admitted under Evid.R. 403(A). Any probative value
of these exhibits for a nonpropensity purpose was substantially outweighed by the
danger of unfair prejudice. The state argued that the murder weapon in this case was
a semi-automatic pistol, and the undated image of an assault-style rifle in Exhibit 28
does not link the defendant to that handgun.
{¶59} Even if Exhibit 28 was probative of the nonpropensity purpose of
proving motive, it should not have been admitted because any probative value of the
undated image was substantially outweighed by the danger of unfair prejudice—
namely, the inference that English had a violent, criminal disposition and had acted
in conformity with that on the day of the shooting. This “ ‘demonstration of a pattern
and the inference that [the defendant] acted in conformity with the pattern is
precisely why other-acts evidence is generally inadmissible.’ ” State v. Cobia, 1st
Dist. Hamilton No. C-140058, 2015-Ohio-331, ¶ 20, quoting State v. Kelly, 1st Dist.
Hamilton No. C-140112, 2014-Ohio-5565, ¶ 8.
{¶60} Similarly, there was underwhelming evidence linking Exhibit 27, the
March 2016 posting of the two extended magazines, captioned “60bangbang,” to the
murder weapon. While Crawford testified, consistent with the ballistic evidence,
that the murder weapon was a “bigger,” automatic-type handgun, and the firearms
examiner explained that a handgun can be equipped with a magazine that extends
beyond the “grip,” the examiner never stated that those magazines would have fit
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OHIO FIRST DISTRICT COURT OF APPEALS
the predicted murder weapon. In light of the violent caption and the age of the
posting, we conclude that the probative value was substantially outweighed by the
danger of unfair prejudice.
{¶61} Ultimately, Exhibits 27 and 28 should have been excluded because
any value they had for establishing a nonpropensity purpose was substantially
outweighed by the risk of unfair prejudice. See Evid.R. 403(A).
{¶62} Similarly, Ebony’s testimony concerning English’s desire to bribe her
to obtain guns, his stockpiling of guns, and her other general testimony reflecting
negatively on his character should not have been admitted. Notably, English did not
place his character at issue in this case. See Evid.R. 404(A). But the erroneous
admission of Exhibits 27 and 28 and Ebony’s other-acts and negative character
testimony did not rise to the level of plain error that affected English’s substantial
rights, because it did not affect the outcome of the trial.
{¶63} The prosecutor’s remarks in closing argument directed to English’s
character increased the risk of unfair prejudice, as did the lack of an instruction on
any legitimate purpose for the evidence. But defense counsel mitigated the prejudice
by rebutting the claim that the postings on English’s Facebook page involved real
weapons. Further, the jury was desensitized to the negative proclivities of gun
ownership. Defense counsel began this process in opening statement by remarking
that: “The fact of the matter is that this place, this church, is a frequent gathering
place for a gang of people down there who are known to carry guns, who are known
to be involved in drug trafficking. It's a very violent group with big guns that are
there frequently,” thereby desensitizing the jurors to the testimony they were about
to hear.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶64} Additionally, the jury was aware that English carried a gun through
Eric’s testimony, and that testimony is not challenged on appeal. Finally, and most
importantly, when Exhibits 27 and 28 and all of Ebony’s challenged testimony that
negatively reflected on English’s character is removed, the remaining evidence of
guilt is overwhelming. The case boiled down to whether Crawford was a believable
witness when he repeatedly named English as the shooter. We conclude that all of
the challenged weapon and bad-character evidence admitting during Ebony’s
testimony could not have appreciably impacted that determination, because of the
strength of the evidence corroborating Crawford’s testimony—the physical evidence,
Hardin’s testimony, and English’s actions after the shooting, including indisputable
evidence of flight.
{¶65} The court’s admission of evidence showing English was on parole or
probation at the time of his arrest was not error, much less plain error. The jury
learned during the testimony of the detectives assigned to the case that English was
arrested on a sealed warrant after appearing for his final appointment with his
probation or parole officer in Newport, Kentucky. The Fugitive Apprehension Unit
had learned of this appointment after making some inquiries, and an effort was
made to keep the news of the planned arrest from English and the public. The court
sustained objections to Detective Sieving’s testimony based on “hearsay” and
“speculation,” but defense counsel did not move to strike the testimony, object on
relevancy or propensity grounds, or request a limiting instruction. Defense counsel
did not object at all to Detective Gehring’s testimony.
{¶66} Although English now claims the information was “irrelevant” and
“prejudicial,” we disagree. The detectives’ testimony was offered to rebut defense
counsel’s claim in opening statement that the evidence would show English had
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OHIO FIRST DISTRICT COURT OF APPEALS
turned himself in to authorities and to explain the evidence of flight. And the
evidence was not unduly prejudicial, because the jury was aware that English had a
prior conviction that prevented him from having weapons and because the
challenged evidence could be viewed as showing English’s success on postconviction
supervision. Further, defense counsel used this evidence to support a claim of
innocence, raising the point, during cross-examination and in closing argument, that
individuals “on the run” do not “check in” with their “parole” or “probation officer.”
{¶67} Finally, we determine that the trial court’s admission of Eloise’s
challenged testimony was not plain error. Eloise testified that she never liked
English because he was “sly, slick, and wicked,” he was known for doing things such
as “selling [] drugs,” and Eric was going to school and she did not want Eric “to hang
with him” and “ruin” his progress. Defense counsel did not object to this testimony.
The state argues that this testimony was offered to give context to the inter-family
dynamics that July. But this part of Eloise’s testimony explained the relationship
when Eric and English were younger.
{¶68} This evidence involves negative character and other-acts evidence.
English did not put his character at issue, and the probative value of this evidence for
a nonpropensity purpose, if any, was substantially outweighed by the danger of
unfair prejudice. The impact, however, was minimized to some extent. Defense
counsel used this testimony, along with a photograph of Eloise and Eric with English
appearing happily together at a dinner party, in an attempt to impeach Eloise’s
credibility. Although the prosecutor in closing argument encouraged the jury to use
this character and other-acts evidence as evidence of guilt, when this evidence is
removed, the outcome of the trial would be the same because the remaining evidence
is overwhelming. Thus, the admission of this testimony was not plain error.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶69} Finally, we conclude that the cumulative effect of the trial court’s
evidentiary errors did not affect English’s substantial rights. Ultimately, the trial
court’s erroneous admission of other-acts and character evidence did not affect the
outcome of the trial nor could it have denied English his due-process right to a fair
trial. Accordingly, we overrule the third assignment of error.
Prosecutorial Misconduct
{¶70} In his fourth assignment of error, English raises misconduct by the
prosecutor as a ground for overturning his conviction. The test for prosecutorial
misconduct is whether the prosecutor's actions and remarks were improper, and, if
so, whether they prejudicially affected the defendant's substantial rights. See State v.
v. Smith, 97 Ohio St. 3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45.
{¶71} The prosecutor may “strike hard blows,” but must refrain from
“strik[ing] foul ones.” Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79
L. Ed. 1314 (1935). The core of our analysis, however, is “is the fairness of the trial,
not the culpability of the prosecutor.” State v. Pickens, 141 Ohio St. 3d 462, 2014-
Ohio-5445, 25 N.E.3d 1023, ¶ 110, quoting Smith v. Phillips, 455 U.S. 209, 219, 102
S. Ct. 940, 71 L. Ed. 2d 78 (1982).
{¶72} We first reject English’s claim that the prosecutor’s elicitation and
improper use of character and other-acts evidence, referenced in the previous
assignment of error, was misconduct that resulted in an unfair trial. A prosecutor
may not elicit improper character and other-acts evidence and then use the evidence
in closing argument to portray the defendant as a violent, gun-toting individual who
had acted in conformity with his bad character in carrying out the murderous act
identified in the indictment. See Carusone, 1st Dist. Hamilton No. C-010681, 2003-
Ohio-1018, at ¶ 41. But we have already determined that error in the admission of
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OHIO FIRST DISTRICT COURT OF APPEALS
character and other-acts evidence did not affect English’s substantial rights. English
did not object to the prosecutor’s remarks in closing argument emphasizing the
propensity evidence. While those remarks were improper, the attack on English’s
character did not pervade the closing argument and rebuttal. Instead, they were
overshadowed by proper argument directing the jury to the overwhelming evidence
of guilt. Thus, we are persuaded that the verdicts would have been no different in the
absence of the challenged conduct.
{¶73} English also contends the prosecutor elicited irrelevant and
inflammatory evidence from Detective Gehring in an attempt to show that the state’s
witnesses and potential witnesses were in fear of English. Although the prosecutor
should refrain from eliciting irrelevant and inflammatory evidence, we disagree with
English’s characterization of this evidence.
{¶74} The prosecutor’s purpose for eliciting testimony from the detective
concerning the reactions to subpoenas was to rebut the defense’s theories that the
state did an incomplete job of interviewing witnesses and failed to bring in
eyewitnesses to testify, and to explain the discomfort displayed by those who did
testify. As Eric explained, he did not want to testify because those who do “get
shot”—“[i]t[’s] just how it do.” In the one instance that English objected to this type
of questioning of the detective on relevancy grounds, the trial court found his
testimony relevant, and that evidentiary ruling is not assigned as error on appeal.
{¶75} English argues that the jury’s concern over their safety after the trial
demonstrates the prosecutor’s conduct denied him a fair trial. Admittedly, the jurors
were concerned about their safety after the trial. This is not surprising, however,
concerning their exposure to violent crime occurring in broad daylight in their
community. We conclude there is no reasonable probability that the jury convicted
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OHIO FIRST DISTRICT COURT OF APPEALS
English as a result of its fears and passions, improperly aroused by the prosecutor,
and not because of the overwhelming evidence guilt.
{¶76} Finally, English claims prosecutorial misconduct occurred during jury
selection. The prosecutor, when introducing the trial process and the general facts of
the case to the jury, stated, “we don’t know what [defense counsel] thinks the
evidence is going to show. She does not have to tell us, and that’s totally fair and
within the rules. But we don’t know what her case theory is. We’ll find out when you
find out.”
{¶77} Defense counsel did not make a contemporaneous objection, waiting
instead until the following day. At that time, defense counsel asserted that the
prosecutor had “impli[ed]” that “[I] was doing something improper by not providing
[the state] a theory of the defense.” The trial court overruled the objection, finding
that if the prosecutor was implying anything improper, it “certainly [was] not enough
to affect the jury.”
{¶78} It is improper for counsel to denigrate opposing counsel in the jury’s
presence. State v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶
167. We do not condone the prosecutor’s unnecessary comment. But the record
reflects that it was, in context, a spontaneous reaction, upon learning that the trial
would start that day, as the defendant confirmed on that date the waiver of his right
to discovery because he wanted to be tried “right away.” And the prosecutor was
explaining, apologetically, that the state may be reviewing with potential jurors what
turned out to be irrelevant topics such as self-defense. We cannot say that these
remarks had any impact on the verdicts. The trial court was in the best position to
gauge potential prejudice from the prosecutor’s comment and found none. The
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OHIO FIRST DISTRICT COURT OF APPEALS
comment during voir dire did not pervade the entire trial, and the jury was
subsequently repeatedly told that the defense did not have any burden at trial.
{¶79} Under these circumstances, we conclude that there is no basis for
disturbing English’s conviction on the grounds of prosecutorial misconduct. The
fourth assignment of error is not well taken and is overruled.
Admission of Facebook Postings
{¶80} In his fifth assignment of error, English argues that the trial court
erred by admitting into evidence Facebook postings that were attributed to him.
These posting were admitted after Ebony testified to her knowledge of Facebook, and
that she had set up English’s Facebook account at his request in 2011, kept in touch
with him through Facebook, and had seen the postings on his page. He contends the
postings were never properly authenticated, that they contained hearsay, and that
their admission violated his constitutional right to confront witnesses against him.
We disagree.
{¶81} The standard for authentication of evidence, including these
Facebook printouts, is low and was met in this case. See State v. Gibson, 6th Dist.
Lucas Nos. L-13-1222 and L-13-1223, 2015-Ohio-1679, ¶ 46-47, cited in State v.
Gordon, 2018-Ohio-2292, 114 N.E.3d 345, ¶ 69 (8th Dist.). The proponent must
present “evidence sufficient to support a finding that the matter in question is what
the proponent claims.” Evid.R. 901(B)(1). Testimony by a witness with knowledge
“that a matter is what it is claimed to be” is an acceptable method of authentication.
Here, where Ebony presented detailed testimony explaining how the account was
opened for English using the moniker “Ju-Ju Williams,” and that she had received
communications from English through that account as recently as late June 2018,
the trial court did not abuse its discretion by admitting the postings as evidence over
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OHIO FIRST DISTRICT COURT OF APPEALS
defense counsel’s objection. See Gibson at ¶ 70. Further, the statements in the
postings were statements by English, thus their admission did not violate the rules of
hearsay or English’s right to confront witnesses. Consequently, English has failed to
demonstrate that the trial court erred by admitting the challenged Facebook
postings. The fifth assignment of error is overruled.
Viewing of Defendant in Handcuffs
{¶82} The sixth assignment of error involves English’s claim that he was
denied a fair trial because the jury allegedly saw him in handcuffs in the caged area
of a police cruiser during the jury’s viewing of the crime scene. He contends the
police car that took him to the scene was parked next to the juror van, which would
have allowed the jurors to see him.
{¶83} A jury may develop prejudice against a defendant tried while
shackled, and that circumstance should be avoided when possible. State v. Kidder,
32 Ohio St. 3d 279, 285, 513 N.E.2d 311 (1987). But it is well accepted that the danger
of that prejudice “is slight” where a juror’s view of a defendant in custody is “brief,
inadvertent and outside of the courtroom.” Id. at 286.
{¶84} This issue was first raised in English’s postverdict motion for a
mistrial, after the jurors had been dismissed. The lateness of the motion eliminated
the trial court’s chance to cure the alleged error by conducting a further voir dire of
the jurors. While the record establishes that the jurors had the opportunity to view
English, it is devoid of evidence demonstrating any juror actually observed him or
any prejudice resulted from this opportunity. The danger of prejudice from such a
viewing was very low, id. at 286, and English indicated that he “ducked” so he would
not be seen. Consequently, we overrule the sixth assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Ineffective Assistance of Counsel
{¶85} In his seventh assignment of error, English argues he was denied the
effective assistance of trial counsel because counsel failed to timely move for a
mistrial after the jury had the opportunity to see him in handcuffs at the scene
viewing.1 To prevail on a claim based on the ineffectiveness of counsel, the record
must demonstrate that defense counsel’s performance fell below “an objective
standard of reasonable representation,” and that the deficient performance
prejudiced the defense so as to have deprived the defendant of a fair trial. State v.
Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus,
following Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
{¶86} English argues that the only prudent course of action would have
been to move for a mistrial after the jury returned from the scene viewing.
Admittedly, this would have allowed the court the opportunity to question the jurors
about English’s claim that the jurors had seen him in handcuffs. But English also
relays that defense counsel had said to him after the viewing, “You don’t want a
mistrial, right?” This indicates that counsel’s inaction was tied to English’s directive,
well established in the record, for a trial on the charges without a delay.
{¶87} We need not address the deficient-performance prong of English’s
ineffective-assistance-of-counsel claim, however, because English failed to satisfy the
prejudice prong. Any inadvertent and brief sighting of English in restraints by the
jury, while English was in the back seat of the police cruiser during the jury's view of
1 English’s reply brief contains other examples of defense counsel’s alleged ineffectiveness. These
new arguments do not rebut the state’s response to the assignment of error. See App.R. 16.1(C).
The state has not had an opportunity to address these new arguments. Accordingly, we do not
address them.
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OHIO FIRST DISTRICT COURT OF APPEALS
the scene, did not affect the outcome of this trial. Accordingly, we overrule the
seventh assignment of error.
Irregularity with Receipt and Sharing of Verdicts
{¶88} English’s first assignment of error involves an alleged irregularity that
occurred with the trial court’s receipt of and sharing of the verdict. According to
English, the verdicts were returned to the trial judge in the jury room, then shared
with the prosecutor, and not first returned in open court in his presence. He argues
this irregularity violated R.C. 2938.11(F),2 Crim.R. 31(A),3 and his constitutional
rights to a public trial and to be present at all critical stages of the proceedings.
{¶89} Although the alleged irregularity did not contribute to the guilty
verdicts, which were confirmed by jury polling, English argues the irregularity
requires a reversal of his convictions because it amounted to structural error.
Structural error “means [] that the government is not entitled to deprive the
defendant of a new trial by showing that the error was ‘harmless beyond a reasonable
doubt.’ ” Weaver v. Massachusetts, __ U.S. ___, 137 S. Ct. 1899, 1910, 198 L. Ed. 2d
420 (2017), citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967).
{¶90} To prevail on his claim of structural error, English must, as a
threshold matter, show the violation of a fundamental constitutional right; a
violation of a statute or rule of procedure will not suffice. See State v. Jones, Slip
Opinion No. 2020-Ohio-3051, ¶ 2, citing State v. Fisher, 99 Ohio St. 3d 127, 2003-
Ohio-2761, 789 N.E.2d 222, ¶ 18.
2 R.C. 2938.11(F) provides that “[a]ny verdict arrived at by the jury, or finding determined by the
judge or magistrate in trial to the court, shall be announced and received only in open court as
soon as it is determined.”
3 Crim.R. 31(A) provides that “[t]he verdict shall be unanimous. It shall be in writing, signed by
all jurors concurring therein, and returned by the jury to the judge in open court.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶91} The alleged irregularity occurred on the first full day of jury
deliberations. The transcript of proceedings shows that the trial judge, accompanied
by a court reporter, was in the jury room based on the agreement of the parties to
answer a jury question involving juror anonymity and safety after the trial. The
judge provided the agreed-upon answer to the jurors, and told them to continue
deliberations and notify the court when finished. In response, multiple jurors said,
“[w]e are finished.” Then the following transpired:
The Court: Okay. Well, tell me when you have the final verdict
forms.
Various jurors: We do.
The Court: Okay. Can I have them, then, and we’ll –
Jury foreman: Yes.
The Court: Okay. I’ll show them to the attorneys. Thank you.
{¶92} The transcript next contains a notation in parenthesis that “[t]he
Court and the court reporter exit the jury room and return to the courtroom,”
followed by, “[t]he jury entered the courtroom.” And then the following:
The Court: Mr. Foreman, have you reached a verdict?
Jury Foreman * * *: Yes, Your Honor.
The Court: If you could hand the verdict to the bailiff, please.
Mr. Bailiff, if you could read the verdicts please.
{¶93} The bailiff then read the guilty verdicts into the record. The jury was
polled at defense counsel’s request, and all jurors indicated that the verdicts were
true. The court entered the guilty findings and thanked and dismissed the jurors.
{¶94} English filed a motion for a new trial two days later. In that motion,
defense counsel asserted, “upon information and belief,” that after the jury had
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OHIO FIRST DISTRICT COURT OF APPEALS
advised the trial judge that they had reached a verdict, “the Judge took the verdict
forms from the jury, left the jury in the jury room, responded to the courtroom and
shared those verdict forms with the prosecuting attorney—not defense counsel.
Defense counsel was then notified that there was a verdict not what the verdict was.”
{¶95} Although English contends his constitutional rights to a public trial
and to be present were violated, he has failed to demonstrate the factual basis for the
claimed constitutional violations. One part of the transcript suggests that the trial
judge took the verdict forms from the foreman in the jury room. But subsequent
notations suggest that the judge did not do so at that time, because when the jury
entered the courtroom, the judge instructed the foreman to hand the verdict to the
bailiff. Further, while the transcript indicates that the judge said he was going to
“show” the verdict forms to counsel, other evidence indicate that the judge did not
mean “show” in its literal sense. To that end, in the motion for a new trial, defense
counsel relayed that the judge had merely “notified” her that there was a verdict
before those verdicts were read in the courtroom. Defense counsel also conveyed her
belief that the judge had already told the prosecutor about the content of the
verdicts, but she did not explain the basis for her conjecture. The record contains no
comment from the prosecutor or the trial judge as to the facts, and we are left with
defense counsel’s speculation of an irregularity.
{¶96} The trial court’s order denying the motion for a new trial provides no
reasoning for its decision. But we can presume that the trial court came to the same
conclusion that we are reaching—English’s claim simply was not supported. See
State v. Phillips, 74 Ohio St. 3d 72, 92, 656 N.E.2d 643 (1995) (Noting that a
reviewing court generally presumes regularity in the trial court, unless the record
demonstrates otherwise.). Ultimately, the record fails to demonstrate that the
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OHIO FIRST DISTRICT COURT OF APPEALS
verdict was first announced in private and when English was not present, threshold
facts for establishing the claimed constitutional violations and triggering any
structural-error analysis. Accordingly, we overrule the first assignment of error.
Batson Challenge
{¶97} In his second assignment of error, English argues the trial court
erred during jury selection by allowing the prosecutor to use a peremptory challenge
to remove an African-American potential juror, in violation of the prohibition against
racial discrimination set forth in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90
L.Ed.69 (1986). Batson created a three-part test for determining whether the state’s
use of a peremptory challenge is discriminatory. “First, a defendant must make a
prima facie showing that a peremptory challenge has been exercised on the basis of
race; second, if that showing has been made, the prosecution must offer a race-
neutral basis for striking the juror in question; and third, in light of the parties’
submissions, the trial court must determine whether the defendant has shown
purposeful discrimination.” Snyder v. Louisiana, 552 U.S. 472, 476-477, 128 S. Ct.
1203, 170 L. Ed. 2d 175 (2008), quoted in Foster v. Chatman, ___ U.S. ___, 136 S. Ct.
1737, 1747, 195 L. Ed. 2d 1 (2016).
{¶98} English’s argument implicates the third step of Batson. The inquiry
during this step of a Batson challenge involves a review of all the circumstances
bearing on the issue of discriminatory intent. Foster at 1748. A trial court’s ruling
on the issue of discriminatory intent will be accepted on appeal unless it is “clearly
erroneous.” Flowers v. Mississippi, ___ U.S. ___, 139 S. Ct. 2228, 2243–2244, 204
L. Ed. 2d 638 (2019); see State v. Hernandez, 63 Ohio St. 3d 577, 589 N.E.2d 1310
(1991).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶99} English argues the striking of prospective juror number 12 (“Juror
12”), an African-American woman, was racially motivated. The record shows that on
the first day of jury selection, Juror 12 revealed that the father of her child had been
released from prison two years before for committing aggravated robbery. When
asked if the child’s father was still in her life, her answers indicated that he was, but
only when he showed up to visit the child. The prosecutor moved on, and
questioning continued until the court concluded proceedings for the day. At that
time, the trial court instructed the potential jurors that they were to avoid discussing
the case with others.
{¶100} On the second day of jury selection, the prosecutor asked Juror 12
why she had responded “unknown” to several inquiries on the juror questionnaire.
This included a question about whether she or members of her family had been
charged with a crime, were a victim of a crime, or were involved in a lawsuit. With
respect to that question, Juror 12 explained that she had a large family and had not
known the history of her older relatives when she filled out the questionnaire. She
then offered that she had asked her aunt for information and had learned “yesterday”
that her uncle had served a lengthy prison sentence.
{¶101} After this questioning, the prosecutor passed for cause. Defense
counsel subsequently questioned the prospective jurors and passed for cause. When
peremptory challenges started, the prosecutor indicated that he wished to challenge
Juror 12, and defense counsel raised a Batson challenge. The prosecutor then
provisionally asked if he could amend his request to make a for-cause challenge,
alluding to Juror 12’s statement about conversing with her aunt the previous day.
The prosecutor explained, “I know the court was definite, and I think the jurors
understood, that they really can’t talk to anybody about the case while it’s pending
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OHIO FIRST DISTRICT COURT OF APPEALS
about anything discussed in here. And she said today she talked to a family member
* * * about whether anybody else had been incarcerated, and I think that’s a clear
violation of her oath.”
{¶102} Defense counsel indicted that she “thought” Juror 12 said that she
had “called [her aunt] when she was filling out her questionnaire, * * * before she got
the instruction,” but she “was not sure” and “maybe misheard.”
{¶103} The trial court apparently misheard the prosecutor’s reasoning
behind the challenge, responding with, “[because] somebody has somebody locked
up * * * [t]hat doesn’t necessarily mean they’re going to be one way or the other,” and
it was not a “reason for a cause challenge.”
{¶104} No further inquiry was made as to Juror 12’s conversation with her
aunt, including when it had occurred. The court proceeded by evaluating the
prosecutor’s removal request as a peremptory challenge, and the prosecutor cited
Juror 12’s on-going relationship with her child’s father as a race-neutral reason in
support. He explained, “I think there’s a closeness between that event and somebody
else charged with a violent felony, and for that reason I don’t think she could be fair.”
{¶105} Defense counsel argued that “all her answers were appropriate” and
suggested that having a relationship with someone who had been incarcerated did
not make one biased. The trial court found no discriminatory intent and dismissed
the juror.
{¶106} English argues the prosecutor’s claimed fear of Juror 12’s partiality
due to her relationship with the father of her child was pretextual. He claims the
discriminatory intent is demonstrated by the prosecutor’s provision of a factually
inaccurate reason in support of removal for cause—Juror 12’s discussion with her
aunt. While the offering of multiple and factually inaccurate reasons may be an
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OHIO FIRST DISTRICT COURT OF APPEALS
indicator of discriminatory intent, Foster, ___ U.S. ___, 136 S.Ct. at 1757, 1754, 195
L. Ed. 2d 1; Flowers, ___ U.S. ___, 139 S.Ct. at 2250, 204 L. Ed. 2d 638, the inference
of pretext is not strong in this case. The prosecutor’s first proposed reason for
removing Juror 12—that she had violated her oath by discussing the case with a
relative—was substantiated to some degree by facts in the record. Further, there is no
dispute about the facts concerning the relationship that led the prosecutor to be
concerned about Juror 12’s impartiality.
{¶107} To further support his claim of pretext, English cites the trial court’s
disallowance of a cause-based challenge based on Juror 12’s relationship with her
child’s father. We are not persuaded. The trial court’s earlier rejection of this
reasoning was not a statement about the prosecutor’s credibility, but instead a
reflection on the limited grounds for cause-based dismissals. See State v. Murphy,
91 Ohio St. 3d 516, 529, 747 N.E.2d 765 (2001), citing Batson, 476 U.S. at 97, 106
S. Ct. 1712, 90 L. Ed. 2d 69 (“[a] valid explanation for a peremptory challenge need not
reach the level for cause.”).
{¶108} On this record, it appears that the reasons offered by the prosecution
were reasonably related to responses given by the prospective juror during voir dire
and that her removal was not “ ‘motivated in substantial part by discriminatory
intent.’ ” See Foster at 1754, quoting Snyder, 552 U.S. at 478, 485, 128 S. Ct. 1203,
170 L. Ed. 2d 175. Consequently, we conclude that the trial court’s finding of no
discriminatory intent was not clearly erroneous. The second assignment of error is,
accordingly, overruled.
Cumulative Error
{¶109} In his final assignment of error, English contends that all of the
above assigned errors prove cumulative error that resulted in an unfair trial, entitling
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OHIO FIRST DISTRICT COURT OF APPEALS
him to a reversal of his convictions. This court may reverse a conviction where the
cumulative effect of errors deemed harmless separately result in an unfair trial. See
State v. Tench, 156 Ohio St. 3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 277, quoting
State v. Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223.
{¶110} Here, upon our review of the record, including the overwhelming
evidence of guilt, we conclude that none of the errors committed in this case,
singularly or together, resulted in prejudicial error. Accordingly, we overrule the
tenth assignment of error.
Conclusion
{¶111} For the foregoing reasons, we affirm English’s convictions.
Judgment affirmed.
Z AYAS , P.J., and C ROUSE , J., concur.
Please note:
The court has recorded its own entry this date.
35