State v. A.W.M. , 2020 Ohio 4707 ( 2020 )

[Cite as State v. A.W.M., 2020-Ohio-4707.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-523
(C.P.C. No. 17CR-2691)
v. :
(REGULAR CALENDAR)
[A.W.M.], :
Defendant-Appellant. :
D E C I S I O N
Rendered on September 30, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: The Law Office of Thomas F. Hayes, LLC, and
Thomas F. Hayes for appellant. Argued: Thomas F. Hayes.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, A.W.M., from a judgment of the
Franklin County Court of Common Pleas following a jury trial in which he was found
guilty of murder, felonious assault, and discharge of a firearm on or near prohibited
premises.
{¶ 2} On February 18, 2016, appellant was charged in a juvenile complaint with
one count of murder and two counts of felonious assault, arising out of the shooting death
of K.W. on February 12, 2016. On February 19, 2016, plaintiff-appellee, State of Ohio,
filed a motion requesting the juvenile court to transfer jurisdiction to the general division
of the common pleas court. Following a bindover hearing, the juvenile court filed an entry
sustaining the state's motion to relinquish jurisdiction.
No. 18AP-523 2
{¶ 3} On May 17, 2017, the state filed an indictment charging appellant with one
count of murder, in violation of R.C. 2903.02, two counts of felonious assault, in violation
of R.C. 2903.11, and one count of discharge of a firearm on or near prohibited premises, in
violation of R.C. 2923.162. The murder and felonious assault counts each carried firearm
and criminal gang activity specifications, while the remaining count carried a firearm
specification.
{¶ 4} The matter came for trial before a jury beginning May 21, 2018. The first
witness for the state was Columbus Police Officer Jimmy T. Harrell. On February 12,
2016, at 6:07 p.m., Officer Harrell responded to a dispatch regarding a shooting at the
Barnett Community Recreation Center ("recreation center") located near the intersection
of Barnett Road and Livingston Avenue. Upon arriving, the officer observed a male
shooting victim "lying in the parking lot area of Barnett Rec Center." (Tr. Vol. I at 26.)
The victim appeared to be a male teenager; he had been shot in the chest and was
"[m]otionless." (Tr. Vol. I at 27.) Two teenage females were at the scene with the victim.
{¶ 5} Medics arrived at the scene and the shooting victim, later identified as K.W.,
was transported to the hospital. The officer separated the two females; these witnesses
mentioned there was a "known suspect" that was in a vehicle. (Tr. Vol. I at 29.) The name
K.S. was provided to the officer as an individual who was in the car; the witnesses knew
this individual as a student at Walnut Ridge High School.
{¶ 6} On cross-examination, Officer Harrell stated the female witnesses thought
they could identify the shooter as an individual who attended Walnut Ridge High School.
On redirect examination, Officer Harrell identified the names of the female witnesses,
"J.A.C." and "J.E.C.," and noted they were sisters; J.E.C. is the younger sister of J.A.C. At
least one of the sisters identified K.S. as the shooter.
{¶ 7} Columbus Police Detective Carlysle Coleman is part of the department's
criminal intelligence unit, also known as "the gang unit." (Tr. Vol. I at 38.) Detective
Coleman, who assisted in the investigation of the shooting death of K.W. testified that law
enforcement personnel obtained video at the recreation center capturing images of the
shooting incident. At trial, the video was played for the jury. Investigators also collected
belongings from K.S.'s student locker at Walnut Ridge High School; the items contained
No. 18AP-523 3
"gang graffiti," including a reference to "Blam Sq," which the detective testified "stands for
squad, Blam Squad." (Tr. Vol. I at 49.)
{¶ 8} Outside the presence of the jury, the trial court conducted voir dire of K.S.
Despite having entered into a defendant's agreement with the state, K.S. indicated his
refusal to cooperate. At the conclusion of voir dire, the trial court found K.S. in contempt.
The prosecutor then requested the trial court to permit the introduction of testimony
previously given by K.S. during a juvenile bindover proceeding. Overruling an objection
by defense counsel, the trial court ruled it would "permit the use of the prior testimony in
the juvenile bindover matter" on the basis the witness was unavailable. (Tr. Vol. I at 86.)
{¶ 9} T.D., age 20, testified he has known appellant "since we were about 14."
T.D. was "[v]ery close" to appellant's family. (Tr. Vol. II at 23.) Appellant has a
nickname, "A.J." (Tr. Vol. II at 24.)
{¶ 10} On the afternoon of February 12, 2016, T.D. was at the home of his
girlfriend. T.D. contacted appellant by Facebook Messenger, requesting appellant stop
and pick him up. Appellant eventually arrived with C.W., A.B., and K.S.; they were
driving a black, four-door Honda that C.W. "had stole[n]" within the last "week or two."
(Tr. Vol. II at 32.) A.B. is a member of a Columbus gang, the Blam Squad, and his street
name is "Remy." K.S. is a member of the Blam Squad, and his street name is "Y." (Tr.
Vol. II at 31.) Appellant is also a member of the Blam Squad.
{¶ 11} The group drove to T.D.'s house to smoke marijuana. T.D. observed
appellant with a "black .38 Smith and Wesson revolver." Appellant was carrying the
weapon "[o]n his hip." (Tr. Vol. II at 33.) T.D. did not observe anyone else with a weapon
that evening.
{¶ 12} At approximately 6:00 p.m., the group decided to drive to Orville, Ohio "to
meet up with some girls." (Tr. Vol. II at 34.) T.D. was driving, while appellant sat in the
front passenger seat; K.S. was in the back seat behind T.D., while A.B. was in the middle
back seat, and C.W. sat in the rear seat behind appellant.
{¶ 13} On the way out of town, they drove past the recreation center. The group
observed K.W. standing in the parking lot between the library and the recreation center;
he was "with two younger females." (Tr. Vol. II at 35.) As they drove by, K.S. yelled out
"Blam Squad, Fuck the Ops, RP Red." T.D. explained that his group, the Blam Squad, had
No. 18AP-523 4
a dispute with a rival gang, the Elaine Gangsters. T.D. stated "[w]e were beefing over a
supposed shooting that they claimed that we had fired up." (Tr. Vol. II at 36.)
{¶ 14} After driving past K.W. and the girls, T.D. turned into an alley and
eventually drove back in the direction of K.W. and the two girls. K.W. was "standing in
between" the females. As the vehicle drove by a second time, K.S. "was hanging out the
windowsill of the car screaming, Blam Squad, Fuck the ops." (Tr. Vol. II at 41.) At that
point, appellant "fired a single gunshot." The shot was loud, and T.D. "felt the heat on
[his] face and smelled the gunfire." (Tr. Vol. II at 42.) T.D. observed appellant fire the
shot with the black revolver.
{¶ 15} After the shot was fired, T.D. "put [his] foot on the gas and drove faster and
drove away." (Tr. Vol. II at 42.) Appellant "said, I think I hit him." T.D. looked back and
saw K.W. "fall behind the slope of the grass." (Tr. Vol. II at 43.) There was a discussion in
the car about K.W. grabbing his chest.
{¶ 16} T.D. and the group "drove around for a while," but eventually "parked in the
back of [his] house for a while, and then we went into [his] house." (Tr. Vol. II at 43.) The
group discussed alibis they were going to use if questioned about the incident. T.D. "was
going to say that [he] was at [his] girlfriend's * * * house." (Tr. Vol. II at 44.) Appellant
"said he was going to be at home." (Tr. Vol. II at 44-45.) K.S. "said he was going to be
with one of his girlfriends." (Tr. Vol. II at 45.)
{¶ 17} A day or so later, appellant, T.D., C.W., and K.S. were at appellant's house.
K.S., who lived nearby, left appellant's residence; a short time later, SWAT members
raided K.S.'s house and arrested K.S. Upon seeing K.S.'s arrest, "we proceeded to hide the
gun." T.D. testified that appellant hid the black revolver "[i]n the cubby in the wall." (Tr.
Vol. II at 46.)
{¶ 18} Police officers arrested T.D. on February 19, 2016. T.D. initially lied to
police investigators to protect himself and his friends. He also did not want to be labeled
"a snitch." (Tr. Vol. II at 47.) At first, T.D. "lied about [C.W.]," failing to indicate he was
in the car. (Tr. Vol. II at 48.) Near the end of the interview, he revealed that C.W. was in
the vehicle. T.D. also did not tell police investigators that appellant fired the shot.
{¶ 19} T.D. was subsequently charged with aggravated murder and murder, and
counsel for T.D. arranged a meeting with the prosecutor's office. On July 7, 2016, T.D.
No. 18AP-523 5
met with prosecutors and agreed to a proffer statement in which he stated appellant was
the shooter. On August 25, 2016, T.D. entered into a defendant's agreement to cooperate,
and a copy of the agreement was entered into evidence as state's Exhibit K. Pursuant to
the terms therein, T.D. agreed to testify truthfully regarding the shooting of K.W. in
exchange for a guilty plea to one count of obstructing justice, a felony of the third degree,
and one count of improperly handling a firearm, a felony of the fourth degree.
{¶ 20} On March 6, 2016, Michael Pfeiffer was employed as a shift supervisor with
the Franklin County Juvenile Detention Center ("JDC"). JDC has a policy that forbids
juvenile inmates passing written communications. On the evening of March 6, 2016,
Pfeiffer observed a letter in the hands of Joshua Pleasant, a juvenile detention officer.
Pfeiffer intercepted the letter, obtained information from Pleasant, and then "went to the
video cameras" where Pfeiffer observed appellant "writing a letter," place it in an
envelope, and hand it to Pleasant. (Tr. Vol. II at 86.) Pfeiffer read the letter, which was
addressed to co-defendant K.S. Pfeiffer subsequently spoke with appellant, who initially
denied writing the letter, telling Pfeiffer "it was a letter from his sister that his mom
brought in for visitation." (Tr. Vol. II at 92.) A short time later, appellant told Pfeiffer "he
had written the letter." (Tr. Vol. II at 94.)
{¶ 21} At trial, the letter was admitted as state's Exhibit E-12. In the letter,
appellant stated in part: "I don't see no way that we both getting out this situation. And to
be 100, the only way I see one of us leaving is if you take it 100." Appellant further stated,
"if you do this for me * * * I got you. I got some shit set up for some bands, and I got some
other shit set up for a couple ms$. * * * On Crip, tell them I wasn't there at all." (Tr. Vol. II
at 95.)
{¶ 22} Dr. John A. Daniels, a Franklin County deputy coroner, performed the
autopsy of K.W. Coroners "removed a bullet from the tissues on the right side of [K.W.'s]
back." (Tr. Vol. II at 121.) The bullet entered the victim "[j]ust below the left nipple." (Tr.
Vol. II at 122.) The bullet traveled through a space between two ribs and "entered the
pericardium sac, * * * the cavity that surrounds the heart," and then entered the "anterior,
or front, wall of the left ventricle of the heart." (Tr. Vol. II at 124.) The bullet "exited the
left ventricle" and "then continued to the right entering the medial, or * * * the surface of
the lower lobe of the right lung." (Tr. Vol. II at 124-25.) The bullet "came to rest in the
No. 18AP-523 6
subcutaneous tissues in the back." Dr. Daniels noted the "course of the bullet was from
front to back, from left to right and from above downward." (Tr. Vol. II at 125.) Dr.
Daniels testified the cause of death "was ruled gunshot wound to the chest," and the
"manner of death was ruled homicide." (Tr. Vol. II at 128.)
{¶ 23} At trial, the trial court informed the jury K.S. was unavailable to testify as a
witness, and they were "not to draw any inference whatsoever from his absence as a
witness." (Tr. Vol. II at 135.) The court permitted the state to read into the record K.S.'s
prior testimony from the juvenile proceedings.
{¶ 24} K.S., age 16 at the time of his testimony, testified he attended Walnut Ridge
High School, and that A.B. also attended that school. K.S. has known C.W. since the sixth
grade. K.S. knew both appellant and T.D. "[f]rom the neighborhood." K.S. and appellant
have been friends for two or three years. K.S. and appellant were both members of the
"Main Street" gang, which includes the Blam Squad. (Tr. Vol. II at 138.)
{¶ 25} K.S. was arrested and charged with murder as a result of the shooting death
of K.W. K.S. and his attorney subsequently entered into discussions with the prosecutor's
office. On May 3, 2016, K.S. signed a proffer letter and he later signed a defendant's
agreement. On June 1, 2016, K.S. entered a plea to a charge of inciting violence, a felony
of the third degree.
{¶ 26} K.S. gave the following testimony regarding the events of February 12, 2016.
On that date, K.S. received a ride from C.W. and appellant. C.W. was driving a black
Honda Accord. Appellant's nickname is "A.J." (Tr. Vol. II at 142.) They later picked up
T.D. The group was smoking weed that evening. K.S. observed appellant with a revolver.
{¶ 27} T.D. subsequently drove the vehicle, with appellant sitting in the front
passenger seat. K.S. was in the back seat directly behind T.D., while A.B. was seated in the
middle back seat, and C.W. was in the rear seat behind appellant.
{¶ 28} That evening, they drove down Barnett Road and observed K.W., along with
two females, standing in front of the local library. K.S. was familiar with one of the
females who attended his school. K.W. was standing in the middle of the two females. As
they drove by, A.B. yelled out "Fuck Elaine," referring to a rival gang. (Tr. Vol. II at 147.)
The vehicle turned off Barnett Road but eventually returned. As they drove past the
No. 18AP-523 7
library again, K.S. "got out of the window" and "yelled Main Street." At that point, K.W.
"was throwing up gang signs." (Tr. Vol. II at 148.)
{¶ 29} As he was leaning out the window, K.S. heard a gunshot and he observed
K.W. "grab his chest." (Tr. Vol. II at 150.) When K.S. returned to the interior of the
vehicle, he observed a gun "[i]n [appellant's] lap." (Tr. Vol. II at 149.) It was the same
weapon K.S. had observed earlier. A.B. and C.W. commented about K.W. grabbing his
chest. A.B. said: "I think you hit him." (Tr. Vol. II at 151.) K.S. testified he thought A.B.
made the statement to either appellant or T.D., but he did not observe T.D. with a
weapon. K.S. also did not observe K.W. with a weapon, nor did he observe anyone other
than appellant with a weapon that evening.
{¶ 30} Following the shooting, the group discussed what they were going to tell
police. K.S. was going to say he was at appellant's house. Appellant was going to say "[h]e
was at his house with [K.S.]." A.B. was going to say he was "[o]ut of town," while T.D. was
going to say he was at "[h]is baby mom's house." (Tr. Vol. II at 153.) K.S. acknowledged
they were making up alibis at that point. K.S. was arrested a day or two later, and he lied
to police at that time.
{¶ 31} Columbus Police Detective William Best is assigned to the department's
criminal intelligence unit, also "called the gang unit." (Tr. Vol. III at 6.) At trial, the court
designated Detective Best as an expert in the field of criminal street gangs. Detective Best
testified he was familiar with the "East Main Money Gang." (Tr. Vol. III at 16.) He stated
the Blam Squad is a subset of the East Main Money Gang; there are approximately 20
documented members of those two entities. The Blam Squad operates in the area "from
East Main, Barnett, East Main, James." (Tr. Vol. III at 30.) Another group, the "Elaine
Gangsters," operates "from South Hamilton and Livingston to about the Barnett Rec,
which is at Barnett and East Livingston." (Tr. Vol. III at 30-31.) In February 2016, there
was an "ongoing" rivalry between the Elaine Gangsters and the Blam Squad. (Tr. Vol. III
at 31.)
{¶ 32} Detective Best assisted in the investigation of the shooting death of K.W.,
including a review of background information to determine if certain individuals,
including appellant, met the criteria of a gang member. As part of the investigation,
Detective Best determined appellant was a member of the Blam Squad; he further
No. 18AP-523 8
determined K.S. and A.B. were also members of the Blam Squad; C.W. was not a member
of the gang.
{¶ 33} Outside the presence of the jury, the trial court permitted voir dire of
Columbus Police Detective Robert A. Cutshall, the lead detective in the investigation of
the shooting death of K.W. Shortly after the shooting, patrol officers spoke at the crime
scene with two female juveniles, J.E.C., age 14, and J.A.C., age 16. Later that evening,
police investigators interviewed both J.E.C. and J.A.C., who are sisters, at Columbus
Police Headquarters. The detective described J.E.C. as "extremely" calm for her age, and
that she was able to answer questions in "detail." (Tr. Vol. III at 67.) During voir dire,
portions of the recorded interviews at police headquarters were played.
{¶ 34} Following voir dire of the detective, the trial court ruled that statements by
J.E.C. at police headquarters did not qualify for admission as excited utterances under
Evid.R. 803(2). The trial court determined "[s]he was not still under the extreme stress or
excitement of the event at the time the statements were made at this point," and "she was
very calm leading up to this." (Tr. Vol. III at 69.) The trial court thus determined the
testimony at issue was inadmissible, and the court also granted the state's request for a
motion in limine to preclude questions regarding what either J.E.C. or J.A.C. told
Detective Cutshall during those interviews at police headquarters.
{¶ 35} Following voir dire, Detective Cutshall testified before the jury. On the date
of the shooting incident, Detective Cutshall arrived at the scene at 7:17 p.m. No physical
evidence, except for a cigarette lighter, was found at the scene. The detective noted that in
cases in which a revolver is used in a shooting, a shell casing is not ejected upon firing. At
the scene, police investigators initially received the first name of a suspect, [A.B.]. Later,
the name K.S. arose as a suspect. Detective Cutshall testified that appellant subsequently
became the main suspect in the shooting death of K.W. Police investigators never
recovered a firearm as part of the investigation.
{¶ 36} Detectives subsequently obtained video from the recreation center; the
video depicts the suspect vehicle traveling north on Barnett Road past the recreation
center. As part of his investigation, Detective Cutshall attempted to speak to J.E.C. and
J.A.C. who were with K.W. at the time of the shooting. The detective testified that the
mother of the teenagers "denied me access to the daughters." (Tr. Vol. III at 82.)
No. 18AP-523 9
{¶ 37} As part of the investigation, Detective Cutshall interviewed both T.D. and
K.S., and the detective subsequently developed appellant as a suspect. Detective Cutshall
eventually determined that the individuals in the vehicle during the incident were
appellant, T.D., K.S., A.B., and C.W. The detective testified he obtained Facebook records
of these individuals, which included photographs of persons making gang signals.
Appellant's username is "Jizzle Bod." (Tr. Vol. III at 87.) The detective testified he
recovered conversations between appellant and T.D. (whose username is "Ty Bod"), as
well as conversations between appellant and C.W. on the date of the incident. (Tr. Vol. III
at 88.)
{¶ 38} Police officers arrested appellant on February 18, 2016. Detective Cutshall
participated in the interview of appellant at police headquarters, and video of that
interview was admitted at trial as state's Exhibit O. During the interview, appellant told
the detective that "nobody calls him AJ for real." Appellant stated he was "home all day"
on the date of the events. (Tr. Vol. III at 96.)
{¶ 39} The detective testified that appellant's Facebook records indicate he left his
house that day. Specifically, he told C.W. to "[s]lide by and pick him up" in the back alley
of his residence. (Tr. Vol. III at 97.) Appellant stated he "doesn't hang with [A.B.] for
real." (Tr. Vol. III at 99.)
{¶ 40} On cross-examination, Detective Cutshall stated that Officer Harrell was the
first officer to speak at the scene with J.E.C. and J.A.C., who were with K.W. at the time of
the shooting. Detective Cutshall stated the first name of a suspect provided during the
investigation was A.B. Later, the name K.S. was provided. K.S. was arrested one day after
the incident, and T.D., C.W., and A.B. were subsequently arrested and charged with
murder. Charges were later dismissed with respect to C.W. and A.B. Police officers
searched appellant's residence as part of the investigation; no weapon was found at that
residence.
{¶ 41} At the close of the state's case-in-chief, counsel for appellant made a Crim.R.
29 motion for judgment of acquittal, as well as a motion for mistrial based on rulings of
the trial court. The trial court denied both motions. Counsel for appellant also made a
proffer on the record with respect to exhibits appellant sought to admit regarding
interviews of J.A.C. and J.E.C.
No. 18AP-523 10
{¶ 42} Following deliberations, the jury returned verdicts finding appellant guilty
of all four counts, including the specifications. By judgment entry filed June 11, 2018, the
trial court imposed an aggregate sentence of 29 years to life.
{¶ 43} On appeal, appellant sets forth the following 11 assignments of error for this
court's review:
1. The judge instructed the jury that the jury could find
[appellant] guilty even if [appellant] is not the shooter.
2. The prosecutor in closing argument asked the jury to infer
guilt from [appellant's] silence.
3. The judge excluded exculpatory evidence tending to prove
that [K.S.] is the shooter.
4. The judge allowed evidence that [T.D.] was subjected to
intimidation at the time of trial.
5. The judge allowed Exhibits J-1 to J-12, unauthenticated
statements and hearsay statements acquired from Facebook,
Inc.
6. The judge allowed Detective Cutshall to testify regarding
the contents of Facebook webpages, in violation of Evid.R.
1002.
7. [Appellant] was denied a fair trial by ineffective assistance
of counsel.
8. The cumulative effect of the foregoing errors violated
[appellant's] federal and state constitutional due process
guarantees of a fair trial.
9. The convictions for felonious assault upon the bystander
sisters (Counts 2 and 3) are not supported by sufficient
evidence and are contrary to the manifest weight of the
evidence.
10. The judge failed to merge Counts 2 and 3 (felonious
assault of the bystander sisters) with Count 1 (murder of
[K.W.]).
11. The judge failed to merge Count 4 (discharging a firearm
near prohibited premises) with Count 1, 2, or 3.
No. 18AP-523 11
{¶ 44} Under the first assignment of error, appellant asserts the trial court erred in
granting the state's request to instruct the jury on complicity. According to appellant, the
only reasonable interpretation of the state's evidence is that the shooting was the surprise,
unilateral act of one individual, and that there are only two possibilities: (1) either
appellant was the shooter, in which case he was not a complicitor, or (2) another
individual was the shooter, in which case a complicity instruction was improper.
{¶ 45} Appellant notes the state requested a jury instruction on complicity over the
defense's objection, and the trial court granted the state's request. The trial court
instructed the jury in part as follows:
A defendant may be convicted of an offense such as murder
either as a principal offender or as a complicitor.
Complicity occurs when a person aids or abets another in the
commission of an offense. * * * An aider or abettor is one who
with the culpable mental state aids, assists, encourages,
corroborates with, advises, or incites another to commit a
crime and participates in the commission of the offense by
some act, word, or gesture. Aid means to help, assist, or
strengthen. Abet means to encourage, counsel, incite, or
assist.
***
Criminal intent may be inferred from presence,
companionship and conduct before and after the offense is
committed. In addition, mere presence can be enough if it is
intended to and does aid the primary offender.
(Tr. Vol. IV at 74-75.)
{¶ 46} In response, the state, citing testimony by T.D. and K.S. that appellant was
the only individual in the vehicle with a weapon, maintains the trier of fact could
reasonably infer that appellant, even if not the shooter, supplied the weapon to the
shooter. The state argues there was additional evidence to support appellant's guilt as a
complicitor to warrant the jury instruction, including evidence as to his conduct following
the shooting, and the fact the shooting was gang related.
{¶ 47} R.C. 2923.03(A)(2) provides in part: "No person, acting with the kind of
culpability required for the commission of an offense, shall * * * [a]id or abet another in
No. 18AP-523 12
committing the offense." In order to support a conviction for complicity by aiding and
abetting under R.C. 2923.03(A)(2), "the evidence must show that the defendant
supported, assisted, encouraged, cooperated with, advised, or incited the principal in the
commission of the crime, and that the defendant shared the criminal intent of the
principal." State v. Johnson, 93 Ohio St.3d 240, 245-46 (2001). Further, "[s]uch intent
may be inferred from the circumstances surrounding the crime." Id. at 246. In this
respect, " 'participation in criminal intent may be inferred from presence, companionship
and conduct before and after the offense is committed.' " Id. at 245, quoting State v.
Pruett, 28 Ohio App.2d 29, 34 (4th Dist.1971).
{¶ 48} Pursuant to R.C. 2923.03(F), "[a] charge of complicity may be stated in
terms of this section, or in terms of the principal offense." Accordingly, "a defendant
charged with an offense may be convicted of that offense upon proof that he was complicit
in its commission, even though the indictment is 'stated * * * in terms of the principal
offense' and does not mention complicity," as the language of R.C. 2923.03(F)
"adequately notifies defendants that the jury may be instructed on complicity, even when
the charge is drawn in terms of the principal offense." State v. Herring, 94 Ohio St.3d
246, 251 (2002), citing State v. Keenan, 81 Ohio St.3d 133, 151 (1998), citing Hill v. Perini,
788 F.2d 406, 407-08 (6th Cir.1986).
{¶ 49} In reviewing a trial court's jury instructions, "the proper standard of review
for an appellate court is whether the trial court's refusal to give a requested instruction or
giving an instruction constituted an abuse of discretion under the facts and circumstances
of the case." State v. Williams, 8th Dist. No. 90845, 2009-Ohio-2026, ¶ 50, citing State v.
Wolons, 44 Ohio St.3d 64, 68 (1989). Further, "an instruction on complicity is justified
when the evidence could be interpreted to support alternative findings as to the exact role
of the defendant." State v. Tuff, 11th Dist. No. 2010-L-082, 2011-Ohio-6846, ¶ 53, citing
State v. Sweeney, 11th Dist. No. 2006-L-252, 2007-Ohio-5223, ¶ 62. See also State v.
Chapman, 8th Dist. No. 79607 (Feb. 7, 2002) ("In order to support a charge of complicity
in jury instructions, there must be some evidence that the defendant solicited or procured
another to commit the offense of those charges in the indictment, or aided or abetted
another."); State v. Cornwell, 86 Ohio St.3d 560, 567 (1999) (although state's theory was
that appellant was the sole gunman, trial court did not err in instructing on complicity
No. 18AP-523 13
where some testimony by accomplices could be construed as conflicting and the
complicity instruction "gave the jury the opportunity to convict [the defendant] as an
accomplice, if, for instance, the jury had a reasonable doubt as to whether he was the
actual shooter").
{¶ 50} In the present case, the record supports the trial court's decision to instruct
on complicity. As noted by the state, both T.D. and K.S. testified appellant was the only
individual observed in the vehicle with a weapon on the date of the shooting. Even
accepting that some other occupant of the vehicle was the shooter, we agree with the state
that the jury could reasonably infer appellant provided the weapon to the individual who
fired the fatal shot. See State v. Alexander, 9th Dist. No. 22295, 2005-Ohio-2393, ¶ 19-21
(jury could find appellant guilty of complicity to commit murder based on evidence he
supplied murder weapon to co-defendant).1
{¶ 51} The record additionally supports the state's argument that evidence as to
appellant's conduct following the shooting indicates he was more than just a non-
complicit bystander. Under Ohio law, "a defendant's conduct before and after a crime is
relevant to whether he was an aider or abettor under a complicity theory of criminal
culpability." State v. Brown, 11th Dist. No. 2014-L-037, 2016-Ohio-1358, ¶ 149.
{¶ 52} At trial, the state presented evidence that appellant fled the scene with the
other occupants of the vehicle immediately after the shooting, subsequently developed an
alibi, and later hid the murder weapon after K.S.'s arrest. At the time of his own arrest,
appellant provided a false alibi to law enforcement, i.e., stating he was at home on the
date of the shooting. The state also presented evidence that appellant attempted to
influence K.S. while in the JDC, sending a note to K.S. stating they were both not "getting
out [of] this situation," and offering K.S. money to say appellant "wasn't there at all." (Tr.
Vol. II at 95.) In light of the record presented, there was sufficient evidence to show that
appellant, even if not the principal offender, aided and abetted in the shooting of K.W.
Accordingly, the trial court did not abuse its discretion in providing a complicity
instruction to the jury.
1 At least one court has found relevant to the issue of complicity evidence that the shooting victim was a
member of a rival gang. See People v. Reed, Cal.App. 2d Dist. No. B155966 (May 29, 2003) (supplying
firearms to fellow gang members constitutes aiding, promoting and encouraging the commission of
shootings that follow).
No. 18AP-523 14
{¶ 53} Appellant's first assignment of error is not well-taken and is overruled.
{¶ 54} Under the second assignment of error, appellant asserts the prosecutor
engaged in misconduct during closing argument by making an improper comment on
appellant's right to remain silent. Appellant notes the state, during its case-in-chief,
introduced a video recording of the police interrogation of appellant. Appellant argues,
based on the video recording, the prosecutor asked the jury to infer guilt from his silence
upon being told by a detective that he was being charged with the murder of K.W.
{¶ 55} Appellant points to the following comments by the prosecutor during
closing arguments to the jury:
And think about this. Think about your friends, anybody else
and whether it be a gang member or not, look at that, that
reaction. At 11:54, detective says, you're charged with murder.
What was his reaction? Shrugs, it goes one minute and six
seconds takes him to say, I didn't do it. Think about that.
You're charged with murder. Everybody says you did it. I'm
done talking. And he slouches over. Common sense, folks. Is
that a normal reaction for getting -- somebody telling you
you're charged with murder? No, it's not.
(Tr. Vol. IV at 65.)
{¶ 56} Appellant specifically challenges the prosecutor's statement that appellant,
upon being told he was being charged with murder, simply "[s]hrugs" and then responds,
after "one minute and six seconds," that he "didn't do it." (Tr. Vol. IV at 65.) Appellant
acknowledges defense counsel did not object to the above comments, but argues the
statements constitute plain error as an improper comment on his right to remain silent
and his failure to testify. We disagree.
{¶ 57} As acknowledged by appellant, the failure to object to closing arguments at
trial results in the waiver of all but plain error. State v. Wiley, 8th Dist. No. 99576, 2014-
Ohio-27, ¶ 59. Under Ohio law, "[r]eversal for prosecutorial misconduct is warranted
under the plain error standard only if it is clear that defendant would not have been
convicted in the absence of the improper conduct." Id., citing State v. McGlothan, 8th
Dist. No. 97212, 2012-Ohio-4049, ¶ 32; Cleveland v. Coleman, 8th Dist. No. 97128, 2012-
Ohio-3942, ¶ 41, citing State v. Saleh, 10th Dist. No. 07AP-431, 2009-Ohio-1542, ¶ 68.
{¶ 58} In Doyle v. Ohio, 426 U.S. 610 (1976), "the United States Supreme Court
held that testimony of a defendant's post-arrest silence, which also occurs subsequent to
No. 18AP-523 15
the administration of Miranda warnings, violates the defendant's privilege against self-
incrimination incorporated into the Due Process Clause of the Fourteenth Amendment."
State v. Ospina, 81 Ohio App.3d 644, 649 (10th Dist.1992), citing Doyle at 618. Such a
violation "is rooted in the concept that it would be fundamentally unfair for the state to
induce a defendant's silence through a promise that it later breaches." State v. Robinson,
1st Dist. No. C-170147, 2019-Ohio-387, ¶ 30, citing Doyle at 618.
{¶ 59} However, "[w]here the accused initially waives his right to remain silent and
agrees to questioning, * * * no such inducement has occurred." United States v. Harris,
956 F.2d 177, 181 (8th Cir.1992). See also Anderson v. Charles, 447 U.S. 404, 408 (1980)
("a defendant who voluntarily speaks after receiving Miranda warnings has not been
induced to remain silent").
{¶ 60} In the present case, with respect to the portion of the video of the interview
played at trial, appellant does not challenge the fact he was informed of his right to
remain silent but waived it.2 As argued by the state, appellant was not silent but, after
waiving his rights, made statements that included his denial as to involvement in the
shooting. Further, the fact appellant waited approximately one minute to respond to the
detective's inquiry does not implicate Doyle. See March v. Bock, E.D.Mich. No. 00-10495
(June 12, 2003) ("prosecution was entitled to note the petitioner's period of silence [of
about a half an hour] after giving his first statement, because after the period of silence,
the petitioner continued to speak to the police").
{¶ 61} Appellant also challenges the prosecutor's reference to the fact appellant
merely shrugged when confronted with the fact he was going to be charged with murder.
The Supreme Court of Ohio, however, has held that a prosecutor "may comment" on
matters such as a defendant's demeanor. State v. Ladson, 8th Dist. No. 105914, 2018-
Ohio-1299, ¶ 38, citing State v. Green, 90 Ohio St.3d 352, 373 (2000) ("Because we are
bound to follow the Ohio Supreme Court's precedent, we find that the prosecutor could
comment on Ladson's demeanor and that his remarks were not improper."); State v. Hill,
75 Ohio St.3d 195, 203 (1996). See also State v. Doak, 11th Dist. No. 2018-P-0022, 2020-
2 As noted by the state, during the interview at issue, appellant later requested an attorney but the state did
not introduce portions of the video beyond that point. During a pre-trial hearing, the trial court cited the
state's acknowledgement "that statements that were made after the Defendant requested counsel at around
54 minutes and 36 seconds into the interview are inadmissible." (Jan. 4, 2018 Tr. at 3.)
No. 18AP-523 16
Ohio-66, ¶ 58 (no error with respect to prosecutor's comment regarding defendant's quiet
reaction after being told of accusation as "prosecutor's points relate more to appellant's
demeanor and the arguable peculiarity of appellant's reticence" and were "not obviously
directed at appellant's pre-arrest silence").
{¶ 62} Accordingly, because we conclude the prosecutor did not impermissibly
comment on appellant's Fifth Amendment right to remain silent during closing
arguments, appellant has failed to show error, plain or otherwise.
{¶ 63} Appellant's second assignment of error is not well-taken and is overruled.
{¶ 64} Under the third assignment of error, appellant asserts the trial court erred
in excluding exculpatory evidence tending to prove K.S. was the shooter. Appellant raises
several separate arguments under this assigned error.
{¶ 65} Appellant first argues the trial court erred in excluding: (1) the video-
recorded statements of the younger sister (J.E.C.) made during an interview at police
headquarters (proffered as defendant's Exhibit No. 4), identifying K.S. as the shooter and
stating the shooter wore a red jacket, and (2) the detective's written summary of that
interview (proffered as defendant's Exhibit No. 7). Appellant notes the two sisters did not
testify at trial, and the trial court conducted voir dire of Detective Cutshall, outside the
presence of the jury, in order to determine the admissibility of their statements made on
the date of the shooting. The trial court excluded, as hearsay, the sisters' statements with
the exception of those they provided to the first responding police officer at the shooting
scene. The basis of the trial court's ruling was that the statements, made hours after the
incident at police headquarters, were not admissible under the excited utterances
exception to the hearsay rule, Evid.R. 803(2).
{¶ 66} Appellant argues the video-recorded statements of J.E.C. and the detective's
written summary should have been admitted for two reasons: (1) the prosecutor's direct
examination of Detective Cutshall opened the door to hearsay about what police learned
during their investigation when the court allowed the prosecutor, on direct examination,
to elicit from Detective Cutshall hearsay statements under the guise of what police heard
during the investigation, and (2) the due process clause embodies a right to present a
defense which controls over a state law hearsay rule. Appellant challenges, on the same
grounds, the trial court's rulings with respect to the defense's attempt to introduce a
No. 18AP-523 17
written statement by J.E.C., and to question the detective as to what J.E.C. told him
during the interview.
{¶ 67} We initially address appellant's contention that the prosecutor, during
direct examination of Detective Cutshall, "opened the door" to hearsay evidence regarding
what police learned during the investigation. According to appellant, the trial court
should have allowed the defense to introduce the statements of J.E.C. because the state
was permitted to introduce three instances of hearsay statements. Specifically, appellant
argues the state introduced inadmissible evidence based on the detective's testimony that:
(1) the name of an initial suspect was A.B., (2) investigators developed appellant as a
suspect after speaking with T.D. and K.S., and (3) appellant's mother was unable to verify
his whereabouts during the time of the incident.
{¶ 68} As noted, following voir dire of the detective, the trial court precluded the
admission of statements by the sisters made during their interview at police headquarters
on the grounds the statements constituted hearsay and were not the product of an excited
utterance. As also noted, the trial court permitted the admission of statements made by
the sisters to the responding officer at the scene (i.e., statements made by the sisters to
Columbus Police Officer Harrell).
{¶ 69} On appeal, appellant does not challenge the trial court's determination that
the statements made by the sisters to detectives during the interview at police
headquarters constituted hearsay, nor does appellant challenge the trial court's ruling that
the statements did not qualify for admission under the hearsay exception for excited
utterances.3 Rather, as noted, appellant seeks reversal of the trial court's ruling on the
statements at issue based on his reliance of the concept of "opening the door."
{¶ 70} Under Ohio law, "[a] trial court's admission of evidence is reviewed for
abuse of discretion." State v. Dunivant, 5th Dist. No. 2003CA00175, 2005-Ohio-1497,
¶ 11, citing State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶ 79. In undertaking
such review, "an appellate court may not merely substitute its judgment for that of the
trial court." Id.3 Under Evid.R. 803(2), "otherwise inadmissible hearsay is admissible if it is a 'statement relating to a
startling event or condition made while the declarant was under the stress or excitement caused by the event
or condition.' " State v. Clark, 8th Dist. No. 103324, 2016-Ohio-4561, ¶ 34.
No. 18AP-523 18
{¶ 71} In general, "[t]he evidentiary concept of 'opening the door' embodies the
concepts of waiver and fairness," whereby "[i]f one party offers evidence that is otherwise
inadmissible as being irrelevant under the rules of evidence, the courts will consider that a
waiver of the rules and in fairness allow the opposing party to present testimony or
evidence on the same point." State v. Dunbar, 8th Dist. No. 89896, 2008-Ohio-2033,
¶ 31. See also State v. DeLeon, 2d Dist. No. 18114 (May 25, 2001), citing United States v.
Segines, 17 F.3d 847, 856 (6th Cir.1994) ("Under the 'opening the door' doctrine, where a
party has elicited or introduced prejudicial or inadmissible testimony, his opponent, in
the trial court's discretion, may introduce evidence on the same issue in order to rebut any
false impression that may have resulted from the earlier admission.").
{¶ 72} Several Ohio courts have addressed the issue of whether a party can "open
the door" to otherwise inadmissible hearsay evidence. In State v. Griffin, 142 Ohio
App.3d 65 (1st Dist.2001), a case cited by appellant, the First District Court of Appeals
addressed an argument by the state that defense counsel had opened the door to hearsay
statements by the defendant. The court in Griffin initially "noted that the 'open door'
theory is theoretically intended to be curative," and that "[t]he justification for a party's
use of improper rebuttal evidence is the necessity to respond to the opponent's first use of
such evidence." Id. at 78. Thus, the court noted, "the theory is a means of counterattack."
Id. Under the facts in Griffin, the court rejected the state's argument that the defense
opened the door to inadmissible hearsay, noting that, rather than seeking to invoke the
theory "as a response to improper hearsay, the state is urging the 'open door' theory as a
means to justify the state's introduction of improper, highly prejudicial hearsay evidence
for the first time." Id. at 78-79.
{¶ 73} In another decision cited by appellant, State v. Rivera, 9th Dist. No.
93CA005592 (Sept. 28, 1994), the defendant argued on appeal that the trial court erred in
permitting the state to introduce inadmissible hearsay evidence at trial, including
testimony by a detective that an alleged employee of the defendant was a drug distributor
who told the detective he had just returned from a trip to pick up cocaine for the
defendant. In response, the state "asserted that defendant 'opened the door' during his
cross-examination of [the detective] by allegedly inquiring about a statement [the
employee] apparently made at the time he was arrested." Id.
No. 18AP-523 19
{¶ 74} The court in Rivera rejected the state's argument, holding in part: "To
accept the State's argument that defendant 'opened the door' to [the detective's]
testimony" that the employee stated he worked as a drug dealer for the defendant "would
turn 'opening the door' into a license for unbridled introduction of inadmissible evidence
far beyond anything that could be viewed as necessary to counteract unfair prejudice
caused by the original inadmissible evidence." Id. The reviewing court cautioned that
"[s]uch a procedure would exceed any view of what is appropriate pursuant to the
'opening the door' concept." Id.
{¶ 75} As noted above, appellant argues he was prejudiced by the fact the state was
permitted to introduce statements by the detective that: (1) A.B. was initially a suspect, (2)
appellant became a suspect after the detective spoke to K.S. and T.D., and (3) appellant's
mother was unable to verify her son's whereabouts between the time of 6:00 and 7:00
p.m. on the date of the incident.
{¶ 76} In response, the state argues appellant cannot show plain error, and that the
"opening the door" doctrine does not permit the introduction of inadmissible hearsay
simply because the other party admitted out-of-court statements. The state maintains
appellant does not claim admitting the statements of J.E.C. was necessary to rebut the
state's first use of these statements; rather, the state argues, appellant asserts the
prosecution opened the door to J.E.C.'s statements simply by admitting other out-of-court
statements.
{¶ 77} With respect to the detective's testimony that A.B. was initially a suspect, we
note counsel raised no objection, presumably because such testimony was not inculpatory
of appellant. Ohio courts have held that "[a] prerequisite of any view regarding 'opening
the door' is that the initial irrelevant evidence was somehow prejudicial to the party
attempting to present rebuttal evidence." State v. Staats, 9th Dist. No. 15706 (Apr. 13,
1994). Here, evidence that A.B. was a suspect was not prejudicial to appellant, and we
therefore find the opening the door doctrine inapplicable.
{¶ 78} Defense counsel also did not object to the detective's statement that
appellant became a suspect after speaking with K.S. and T.D. Under Ohio law, statements
offered to explain an officer's conduct in investigating a crime are "not hearsay." State v.
Blevins, 36 Ohio App.3d 147, 149 (1oth Dist.1987). See also State v. Ricks, 136 Ohio St.3d
No. 18AP-523 20
356, 2013-Ohio-3721, ¶ 20 (out-of-court statements admitted to explain police conduct
are not hearsay).
{¶ 79} In order to be "admissible under the doctrine of curative admissibility, the
evidence that allegedly opened the door must in fact have been inadmissible." United
States v. Rea, 958 F.2d 1206, 1225 (2d Cir.1992). Stated otherwise, "[p]roperly admitted
evidence does not open the door to inadmissible evidence." Id. Here, because the
testimony of Detective Cutshall regarding the development of appellant as a suspect was
arguably admissible for a non-hearsay purpose, appellant cannot rely on such testimony
as a basis to open the door to inadmissible hearsay. Further, as noted by the state, the
subject statement did not add anything to the case beyond what the jury already knew
based on the testimony of T.D. and K.S.
{¶ 80} Appellant also contends the state opened the door to defense's proffered
evidence based on the prosecutor's questioning of the detective about his discussion with
appellant's mother, who stated she could not account for appellant's whereabouts during
a certain period of time on the date of the shooting. We note defense counsel did raise an
objection to this inquiry. During a sidebar, the prosecutor indicated the state "was trying
not to go and serve" the mother with a subpoena but could do so. Alternatively, the
prosecutor sought to question the detective as to whether the mother was able to verify his
whereabouts and "leave it at just that." The trial court instructed the prosecutor to
"[l]eave it at just that." (Tr. Vol. III at 101.)
{¶ 81} Appellant's claim that the detective's testimony regarding his discussion
with appellant's mother opened the door and made permissible admission of an unrelated
out-of-court statement (i.e., J.E.C.'s statement regarding her identification of K.S.) is not
persuasive. As one federal court has observed: " 'Opening the door is one thing. What
comes through the door is another.' " United States v. Brown, 921 F.2d 1304, 1307 (D.C.
Cir.1990), quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir.1971). Thus,
"the range of otherwise-inadmissible evidence that may be squeezed through an 'open
door' is limited." Id. at 1308. In this respect, Ohio courts have limited application of the
"open the door" concept to the introduction of evidence on "the same issue in order to
rebut any false impression that may have resulted from the earlier admission." DeLeon.
See also State v. Thompson, 8th Dist. No. 40570 (Apr. 17, 1980) (hearsay testimony of
No. 18AP-523 21
officer "did not open the door" to admit other hearsay that "went beyond merely negating
or explaining the original hearsay testimony"). Here, appellant cannot show the trial
court erred in failing to find the state opened the door to the hearsay statements of J.E.C.
regarding K.S. in order to explain, negate, or correct a false impression left by the state's
questioning of the detective on the subject of his discussion with appellant's mother.
{¶ 82} In the alternative, appellant argues the statements of J.E.C. should have
been admissible on constitutional grounds. Specifically, appellant contends that
application of the state law hearsay rule in this case violated his due process rights. In
support, appellant cites Chambers v. Mississippi, 410 U.S. 284 (1973), Green v. Georgia,
442 U.S. 95 (1979), and Holmes v. South Carolina, 547 U.S. 319 (2006).
{¶ 83} In Chambers, the United States Supreme Court determined the exclusion of
an oral confession by a third party denied the accused the right to a fair trial, holding in
part that "the hearsay rule may not be applied mechanistically to defeat the ends of
justice." Chambers at 302. Under the facts of that case, the trial court "applied the
[state's] 'voucher rule' and refused to allow the defendant to treat the witness as adverse
and cross-examine him." United States v. Camacho, 163 F.Supp.2d 287, 316 (S.D.N.Y.
2008), fn. 17. Furthermore, "the state court refused to permit evidence of the out-of-court
confessions to be admitted" at trial because Mississippi "did not have an exception to the
hearsay rule for statements against penal interest." Id. Emphasizing the "unusual
circumstances of the case," the United States Supreme Court in Chambers "held that the
state court's application of the voucher rule and the hearsay rule, in combination, violated
the defendant's due process right to present his defense." Id., citing Chambers at 298.
The Supreme Court also found "the highly reliable nature of the out-of-court statements
and the presence at trial of the declarant distinguished the case" from an earlier state
court decision. Id. See also State v. Yarborough, 95 Ohio St.3d 227, 2002-Ohio-2126,
¶ 68 (noting "the Chambers declarant was available to be cross-examined").
{¶ 84} Similarly, in Green, the United States Supreme Court held a defendant was
denied a fair trial during the sentencing/punishment phase of a death penalty case based
on Georgia's hearsay rule for declarations made against penal interest where a trial court
excluded the confession of a co-conspirator made to a close friend. The United States
Supreme Court found the evidence to be sufficiently reliable based on the fact "[t]he
No. 18AP-523 22
statement was against interest" and, "[p]erhaps most important, the State considered the
testimony sufficiently reliable to use it against [the co-conspirator], and to base a sentence
of death upon it." Id. at 97. Citing "these unique circumstances," the United States
Supreme Court relied on Chambers to again hold that state hearsay rules may not be
applied mechanistically. Id.
{¶ 85} In State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, the Supreme Court
of Ohio discussed the issue of the right to a meaningful opportunity to present a complete
defense in the context of United States Supreme Court precedent, including Chambers,
Holmes, and United States v. Scheffer, 523 U.S. 303, 308 (1998). Specifically, the court
noted Chambers "recognized that '[t]he right of an accused in a criminal trial to due
process is, in essence, the right to a fair opportunity to defend against the State's
accusations.' " Swann at ¶ 12, quoting Chambers at 294. The Supreme Court of Ohio
observed, however, "that this constitutional right is not absolute and does not require the
admission of all evidence favorable to the defendant." (Emphasis sic.) Id. at ¶ 13, citing
Scheffer at 308.
{¶ 86} The court in Swann, at ¶ 14-15, further held:
As the court acknowledged in Chambers, "In the exercise of
this right, the accused, as is required of the State, must
comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the
ascertainment of guilt and innocence." 410 U.S. at 302, 93
S.Ct. 1038 * * *. The court has further emphasized that
"[s]tate and Federal Governments unquestionably have a
legitimate interest in ensuring that reliable evidence is
presented to the trier of fact in a criminal trial. Indeed, the
exclusion of unreliable evidence is a principal objective of
many evidentiary rules." Scheffer, 523 U.S. at 309, 118 S.Ct.
1261, * * * citing Fed.R.Evid. 702, 802, and 901 * * *.
Accordingly, in Scheffer the court clarified that "Chambers
therefore does not stand for the proposition that the
defendant is denied a fair opportunity to defend himself
whenever a state or federal rule excludes favorable evidence."
Id. at 316, 118 S.Ct. 1261 * * *. Rather, it emphasized, "state
and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from
criminal trials. Such rules do not abridge an accused's right to
present a defense so long as they are not 'arbitrary' or
No. 18AP-523 23
'disproportionate to the purposes they are designed to serve.' "
Id. at 308, 118 S.Ct. 1261 * * *.
{¶ 87} The Supreme Court in Swann further observed that the decision in Holmes
"did not hold that every rule that excludes evidence of third-party guilt is necessarily
unconstitutional or that a criminal defendant has a right to present all evidence of third-
party guilt." Id. at ¶ 19. Rather, the court noted: "in Holmes, the court adhered to its
earlier decisions in Chambers * * * and Scheffer, and reiterated that the right to present a
complete defense 'is abridged by evidence rules that "infring[e] upon a weighty interest of
the accused" and are " 'arbitrary' or 'disproportionate to the purposes they are designed to
serve.' " ' " Id., quoting Holmes at 324-25, quoting Scheffer at 308, quoting Rock v.
Arkansas, 483 U.S. 44, 56 (1987).
{¶ 88} As previously noted, appellant does not challenge the trial court's
determination that the statements of J.E.C. were not admissible under the excited
utterance hearsay exception. Here, the trial court, after conducting voir dire of the
detective, determined the statements of J.E.C., made at police headquarters
approximately two to four hours after the incident, were made at a time when she was
calm and had an opportunity to reflect on the events (i.e., lacking indicia of reliability
required for admission under excited utterance exception). Appellant cannot show the
trial court's application of the excited utterance rule was arbitrary. In this respect, "courts
have held that the exclusion of alleged excited utterances on grounds that the prerequisite
for admission of such statements has not been satisfied is not a violation of the due
process right to present a defense because such exclusion is neither arbitrary or unfair."
Dillon v. Warden, Ross Corr. Inst., S.D.Ohio No. 2:10-cv-638 (Nov. 10, 2011), citing
Berry v. Harrington, C.D.Cal. No. CV 09-4269-VAP (OP) (Feb. 22, 2010), citing Scheffer
at 308.
{¶ 89} Nor does the record indicate the trial court applied the rule "mechanistically
to defeat the ends of justice." Chambers at 302. As previously noted, while the trial court
precluded the interview statements made hours after the event, the court permitted the
admission of statements made by J.A.C. and J.E.C. at the scene to the first responding
police officer. In addition to the hearsay question, the trial court could have reasonably
concluded J.E.C.'s statement to the detective regarding K.S. was unreliable based on the
No. 18AP-523 24
prosecutor's argument that her statement was contradictory to the statement of J.A.C.,
that K.S. did not have a weapon.4 Further, unlike in Chambers, J.E.C.'s statement did not
involve a confession, and she was unavailable to testify and not subject to cross-
examination. This court has previously noted the holding in Chambers "actually
recognizes the unreliability of out-of-court statements where, as here, the declarant does
not testify and is not subject to cross-examination." State v. Dickerson, 10th Dist. No.
11AP-789, 2012-Ohio-3268, ¶ 25. See also Yarborough at ¶ 67-68 (distinguishing facts of
Chambers where declarant's statements did not amount to a confession and where
declarant was not available to be cross-examined). Upon review, we do not find
persuasive appellant's contention that the trial court's application of the hearsay rule
resulted in a constitutional violation under Chambers and its progeny.
{¶ 90} Appellant also asserts the trial court erred in excluding Exhibit 7, the
detective's written summary of his interview of J.E.C., on grounds such statements are
non-hearsay admissions by a party-opponent under Evid.R. 801(D)(2). Alternatively,
appellant argues that, even if the statements constitute hearsay, they are admissible under
Evid.R. 803(8) as an exception for public records and reports.
{¶ 91} Appellant's claim that the detective's written summary of J.E.C.'s
statements are non-hearsay admissions under Evid.R. 801(D)(2) is not persuasive.
Pursuant to Evid.R. 801(D)(2), a statement is not hearsay if it is:
(a) [T]he party's own statement, in either an individual or a
representative capacity, or (b) a statement of which the party
has manifested an adoption or belief in its truth, or (c) a
statement by a person authorized by the party to make a
statement concerning the subject, or (d) a statement by the
party's agent or servant concerning a matter within the scope
of the agency or employment, made during the existence of
the relationship, or (e) a statement by a co-conspirator of a
party during the course and in furtherance of the conspiracy
upon independent proof of the conspiracy.
4 The prosecutor's argument was made outside the presence of the jury. By way of background, although not
admitted into evidence for the jury in this case, Detective Cutshall testified during the juvenile proceedings
that J.A.C. told the detective that K.S. did not have a weapon, and that he was sitting on the window of the
vehicle throwing gang signs. The detective further testified during the juvenile proceedings that the
statements of J.A.C. and J.E.C. "do conflict." (Feb. 7, 2017 Tr. at 48.)
No. 18AP-523 25
{¶ 92} As noted by the state, neither J.E.C. nor the detective is a party-opponent
under the rule. See, e.g., State v. Williams, 7th Dist. No. 09 MA 11, 2010-Ohio-3279, ¶ 30,
citing State v. Ingram, 12th Dist. No. CA2006-01-012, 2006-Ohio-4559, ¶ 8; State v.
McMannis, 10th Dist. No. 01AP-413 (Dec. 4, 2001) ("a victim is not a party-opponent
under Evid.R. 801(D)(2)").
{¶ 93} Appellant also contends the detective's summary of his interview with J.E.C.
was admissible under Evid.R. 803(8), the hearsay exception for public records and
reports. Evid.R. 803(8) permits the admission of hearsay consisting of:
Records, reports, statements, or data compilations, in any
form, of public offices or agencies, setting forth (a) the
activities of the office or agency, or (b) matters observed
pursuant to duty imposed by law as to which matters there
was a duty to report, excluding, however, in criminal cases
matters observed by police officers and other law enforcement
personnel, unless offered by defendant, unless the sources of
information or other circumstances indicate lack of
trustworthiness.
{¶ 94} Prior to trial, appellant filed a motion in limine, raising the issue of the
admissibility of police records under Evid.R. 803(8). During a hearing on January 4,
2018, the trial court ruled on the motion, finding Evid.R. 803(8) inapplicable, based in
part on this court's decision in Amoako-Okyere v. Church of the Messiah United
Methodist Church, 10th Dist. No. 14AP-441, 2015-Ohio-3841.
{¶ 95} In Amoako-Okyere, this court noted that "[g]enerally, '[a] police report is
hearsay unless it meets one of the exceptions enumerated in the Rules of Evidence.' " Id.
at ¶ 50, quoting Muncy v. Am. Select Ins. Co., 129 Ohio App.3d 1, 5 (10th Dist.1998),
citing Petti v. Perna, 86 Ohio App.3d 508, 513 (3d Dist.1993). In this respect, "[t]he
firsthand observations of the official making the report fall within the public records
exception to the hearsay rule and are admissible." Id. This court further noted, however,
"hearsay statements contained in a police report that do not have an independent source
of admissibility are inadmissible under Evid.R. 803(8)." Id., citing Cincinnati Ins. Co. v.
Volkswagen of Am., Inc., 41 Ohio App.3d 239, 242 (10th Dist.1987).
{¶ 96} Here, the statements of J.E.C. lack an independent source of admissibility,
and we find no error in the trial court's reliance on Amoako-Okyere in ruling on the
admissibility of the subject records under Evid.R. 803(8). See also State v. Houston, 10th
No. 18AP-523 26
Dist. No. 04AP-875, 2005-Ohio-4249, ¶ 28 (reversed and remanded in part on other
grounds) (hearsay statements made by declarant to detective in police videotape not
admissible under Evid.R. 803(8) as a public record or report).
{¶ 97} Appellant also challenges the trial court's exclusion of evidence that police
investigators later found a weapon and bullet at the home of K.S., and that K.S. was
charged with gun-related offenses subsequent to the events in this case. Appellant
maintains such evidence tends to prove K.S. may have possessed the weapon used in the
crime, that he had a familiarity with weapons, and that it speaks to his credibility.
{¶ 98} By way of background, the issue of subsequent weapons-related charges was
first raised following voir dire of K.S. (during which he indicated his refusal to testify at
trial). After voir dire was completed, defense counsel argued before the trial court
(outside the presence of the jury) the following: "It's my * * * understanding that [K.S.]
has new charges pending which are set, I believe, June 5th, Case No. 18JU-4405,
aggravated robbery with a gun specific; 18JU-1399, a receiving stolen property, felony of
the Fourth Degree also set on the same date * * *; 18JU-5017, assault, also pending, and
pending charge on June 5th." (Tr. Vol. I at 85.) In response, the prosecutor represented
that "[t]hose charges are subsequent to this, not part of the agreement. And they're --
again, they're juvenile pending cases, and they happened way after the Defendant's
Agreement. They happened after the juvenile hearing * * *. So those would be completely
separate and after the fact here." The trial court agreed with the state, finding that "those
charges or indictments would not have been relevant" to the current proceedings. (Tr.
Vol. I at 86.)
{¶ 99} Subsequently, during cross-examination of Detective Cutshall, the
prosecutor objected to an inquiry by defense counsel as to whether the detective was
aware that K.S. "has picked up additional gun charges." (Tr. Vol. III at 135.) Out of the
presence of the jury, defense counsel argued the evidence was relevant because "we have
no murder weapon. We have * * * two guns that have been confiscated. I have no idea
whether or not he's been tested." The trial court sustained the objection, finding it
speculative that subsequent weapons charges "could be relevant to the fact that a murder
weapon wasn't found in this case." (Tr. Vol. III at 136.)
No. 18AP-523 27
{¶ 100} Upon review, we find no abuse of discretion by the trial court in excluding
testimony regarding pending gun charges brought against K.S. subsequent to the events
at issue as speculative. See, e.g., United States v. Zayac, 765 F.3d 112, 118 (2d Cir. 2014)
(trial court did not err in excluding, under Evid.R. 403, evidence of holster and magazine
recovered from home of co-defendant where court determined there was a high risk "jury
would engage in speculation," based on "chain of inferences," that co-defendant owned
the gun and that this gun was the murder weapon, "since the holster was empty when it
was recovered, the murder weapon was not found, and forensic testing had failed to
establish * * * what kind of firearm was used" to kill victim).
{¶ 101} Based on the foregoing, appellant's third assignment of error is not well-
taken and is overruled.
{¶ 102} Under the fourth assignment of error, appellant argues the trial court erred
in allowing evidence that T.D. was the subject of intimidation at the time of trial.
Appellant maintains this evidence should have been excluded as irrelevant, under Evid.R.
401, and as unduly prejudicial, under Evid.R. 403(A).
{¶ 103} The record indicates that T.D. was scheduled to testify on behalf of the
state on the first day of trial (May 22, 2018). After the morning recess, and outside the
presence of the jury, the prosecutor informed the trial court he had met with T.D. that
morning, but that T.D. subsequently received a phone call in which he was informed "his
grandmother's house had been shot up." (Tr. Vol. I at 93.) Detective William Best, who
was in the prosecutor's office with T.D. at the time of the phone call, then testified on voir
dire regarding the events of that morning. After T.D. received the phone call, Detective
Best made arrangements for T.D. to be transported to his grandmother's residence. T.D.
later informed the detective he refused to testify. The next morning (May 23, 2018),
before resuming trial, the trial court conducted voir dire of T.D., at which time T.D.
indicated his refusal to testify. The trial court found T.D. in contempt and ordered him
taken into custody. Following a break, the trial court informed the parties that T.D. was
now willing to testify, and he was then called as a witness by the state.
{¶ 104} Appellant contends the trial court erred in allowing T.D. to testify
regarding events from the day earlier, including testimony that he received a number of
phone calls from a "no caller ID," raising concerns that something could happen to him or
No. 18AP-523 28
his family members. (Tr. Vol. II at 16.) Appellant also argues it was error for the court to
permit testimony by T.D. regarding the phone call he received informing him that his
grandmother's "house was shot up." (Tr. Vol. II at 21.)
{¶ 105} Counsel for appellant objected to the prosecutor's inquiry about the phone
call T.D. received the day earlier. Outside the presence of the jury, counsel stated in part:
"I thought we had specifically discussed the issue at hand, and it was my understanding
that * * * we're not going to allow the State to get into the circumstances of everything that
occurred before." (Tr. Vol. II at 18.) The trial court, in addressing appellant's objection,
noted the issue "presented yesterday was he was not going to testify, and the issue was
whether or not we could present evidence as to why he wasn't coming." The court further
noted: "[t]oday the issue is he is here to testify and the credibility of his testimony whether
there's bias, motive, that kind of thing is at issue." The trial court deemed the questioning
"relevant to those issues." (Tr. Vol. II at 19.)
{¶ 106} This court has previously observed "there is no automatic and absolute
exclusion of evidence that a witness fears retaliation, which evidence may be relevant to
issues of credibility and bias." State v. Battle, 10th Dist. No. 18AP-728, 2019-Ohio-2931,
¶ 24, citing State v. Hager, 10th Dist. No. 93AP-260 (Feb. 8, 1994). See also State v.
Gibson, 8th Dist. No. 103958, 2016-Ohio-7778, ¶ 14, citing People v. Mendoza, 132
Cal.Rptr.3d 808 (2011) (evidence that a witness is reluctant to testify or fearful of
retaliation "is admissible as relevant to the witness's credibility"); State v. Hairston, 10th
Dist. No. 01AP-252 (Sept. 28, 2001) (contrary to defendant's contentions, questions by
prosecutor regarding harassment, or fear of harassment, on the part of the state's
witnesses "were relevant and admissible concerning the witnesses' credibility and possible
bias in this case").
{¶ 107} In the present case, T.D. was a key witness to the events, and the defense
challenged his credibility, seeking to portray him during opening statements as having
"every incentive to lie" and, during closing argument, as having obtained a favorable deal
from the state. (Tr. Vol. I at 21-22.) Here, the trial court could have reasonably
determined that "testimony about his reluctance to testify in open court was relevant to
his credibility and did not amount to unfair prejudice." State v. Payne, 8th Dist. No.
107825, 2019-Ohio-4158, ¶ 52 (trial court did not err in admitting testimony by witness
No. 18AP-523 29
regarding his fear of retaliation after entering plea bargain as such evidence was relevant
and not subject to exclusion under Evid.R. 403).
{¶ 108} Appellant's fourth assignment of error is not well-taken and is overruled.
{¶ 109} Appellant's fifth and sixth assignments of error are interrelated and will be
considered together. Under these assignments of error, appellant asserts the trial court
erred in the admission of social media messages and documents posted on Facebook, and
in permitting the lead detective to testify regarding the contents of the Facebook web
pages, in violation of Evid.R. 1002.
{¶ 110} Under the fifth assignment of error, appellant challenges the trial court's
admission of state's Exhibit Nos. J-1 through J-12, containing social media content
acquired from Facebook, Inc. Appellant contends that most of the exhibits, which
included screenshots of appellant's Facebook account, were not authenticated. According
to appellant, Detective Cutshall had no personal knowledge about the creation of these
documents, but the trial court allowed him to testify about each exhibit. Appellant also
challenges some of the exhibits as containing inadmissible hearsay.
{¶ 111} Under Ohio law, " '[t]he admission or exclusion of relevant evidence rests
within the sound discretion of the trial court.' " State v. Padgette, 8th Dist. No. 108525,
2020-Ohio-672, ¶ 7, quoting State v. Sage, 31 Ohio St.3d 173, 180 (1987). The
"[a]uthentication of evidence is governed by Evid.R. 901(A)." State v. McCarrel, 10th
Dist. No. 18AP-660, 2019-Ohio-2984, ¶ 35, citing State v. Howard, 1st Dist. No. C-
170453, 2018-Ohio-3692, ¶ 14. Evid.R. 901(A) states: "The requirement of authentication
or identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims."
{¶ 112} Evid.R. 901(B) "sets forth 'a list of illustrations that describe, without
limiting, some ways in which evidence may be authenticated as required by Evid.R.
901(A).' " McCarrel at ¶ 36, quoting State v. Moorer, 9th Dist. No. 27685, 2016-Ohio-
7679, ¶ 8. Pursuant to Evid.R. 901(B) "the authentication requirement can be satisfied by
the '[t]estimony of [a] witness with knowledge' that 'a matter is what it is claimed to be.' "
State v. Caslin, 10th Dist. No. 17AP-613, 2018-Ohio-5362, ¶ 20, quoting Evid.R.
901(B)(1).
No. 18AP-523 30
{¶ 113} Ohio courts have recognized that "[t]his authentication standard is liberal
and may be satisfied by either circumstantial or direct evidence sufficient for the trier of
fact to conclude that the evidence is what its proponent claims it to be." State v. Garcia-
Toro, 8th Dist. No. 107940, 2019-Ohio-5336, ¶ 30, citing State v. Inkton, 8th Dist. No.
102706, 2016-Ohio-693, ¶ 73. Further, "Ohio courts have also held that the determination
of admissibility and authentication of social media evidence is 'based on whether there
was sufficient evidence of authenticity for a reasonable jury to conclude that the evidence
was authentic.' " Padgette at ¶ 13, quoting State v. Gibson, 6th Dist. No. L-13-1222, 2015-
Ohio-1679, ¶ 41.
{¶ 114} With respect to photographs, "Ohio courts have held that a 'photograph is
admissible if it is shown to be an accurate representation of what it purports to
represent,' " and that " '[i]t is unnecessary to show who took the photograph or when it
was taken, provided there is testimony that the photograph is a fair and accurate
representation of what it represents.' " Id. at ¶ 12, quoting State Farm Mut. Auto. Ins. Co.
v. Anders, 197 Ohio App.3d 22, 2012-Ohio-824, ¶ 30 (10th Dist.).
{¶ 115} At trial, the issue of Facebook postings arose during the testimony of T.D.
and Detective Cutshall. T.D. testified that he used Facebook Messenger and that his
screen name was "Ty Bod." He further testified that appellant's username on Facebook
was "Jizzle Bod." (Tr. Vol. II at 25.) Over objection of defense counsel, T.D. identified the
state's Exhibit No. J-1 as a Facebook communication he had with appellant on the date of
the incident. T.D. further identified state's Exhibit No. J-4 as a message he sent to
appellant that day at 4:37 p.m. T.D. identified state's Exhibit No. J-6 as a communication
he had with appellant on the next day, February 13, 2016. T.D. testified that state's
Exhibit No. J-5 was a news article he sent to appellant via Facebook, and he identified
state's Exhibit No. J-2 as a photograph posted on appellant's Facebook account.
{¶ 116} As part of his investigation, Detective Cutshall obtained a search warrant
for the Facebook accounts of several individuals, including appellant. At trial, he testified
that state's Exhibit Nos. J-1 through J-12 contained screenshots of appellant's Facebook
account. Detective Cutshall stated that appellant's username is "Jizzle Bod," as reflected
in a Facebook printout identified as state's Exhibit No. J-1. (Tr. Vol. III at 87.) The
detective identified each of the exhibits, including a photograph posted on Facebook of
No. 18AP-523 31
individuals posing with gang signs (Ex. No. J-2), Facebook screenshots of conversations
between appellant and T.D. on the date of the incident (Ex. Nos. J-3 and J-4), a news
article posted on Facebook regarding the shooting incident (Ex. No. J-5), Facebook
conversations between appellant and A.B. on the date of the incident (Ex. No. J-7), as well
as conversations between appellant and C.W. on the date of the events (Ex. Nos. J-8 and
J-9).
{¶ 117} Here, T.D. personally identified six of the Facebook exhibits, and testified
that the exhibits included communications between himself and appellant on the date of
the incident as well as the day after the shooting. We note that appellant acknowledges
T.D. had personal knowledge regarding the creation of several of the Facebook messages.
This court has found no abuse of discretion by a trial court in admitting exhibits of
Facebook postings based on similar testimony, especially in light of the low threshold
standard for authentication. See State v. Ross, 10th Dist. No. 17AP-141, 2018-Ohio-3027,
¶ 40 (testimony by witness that she was Facebook friends with defendant, that defendant
responded to her messages, and that exhibits were pictures she took of Facebook posts
made by defendant "sufficient for purposes of identification or authentication pursuant to
Evid.R. 901"); McCarrel at ¶ 40 (testimony "was 'sufficient to meet the threshold
admissibility requirement' of Evid.R. 901" where witness identified defendant's Facebook
name and testified that screenshots admitted at trial were messages she sent defendant
via Facebook, and where the content of the messages was consistent with the events at
issue).
{¶ 118} Further, Detective Cutshall testified he obtained the Facebook account
information through a search warrant, and he identified the exhibits at issue as Facebook
screenshots from appellant's account. Ohio appellate courts "have found similar
authentication evidence sufficient to meet the standard in Evid.R. 901(A)." Garcia-Toro
at ¶ 30, citing Inkton; Howard (Facebook evidence properly authenticated where
detective "testified that he obtained the Facebook evidence pursuant to a search warrant
served on Facebook and personally reviewed the documents.").
{¶ 119} On review, we conclude the state presented sufficient evidence by which a
reasonable juror could conclude the Facebook screenshots were authentic. We therefore
find the trial court did not abuse its discretion in admitting the exhibits at issue.
No. 18AP-523 32
{¶ 120} Appellant also argues some of the exhibits constituted inadmissible
hearsay. Appellant provides only one example, citing a question by the prosecutor to
Detective Cutshall concerning a posting in which A.B. asked appellant "who he's with."
(Tr. Vol. III at 90.) As noted by the state, however, the question did not involve an
assertion, and appellant's response would arguably have been deemed admissible as a
non-hearsay admission by a party opponent under Evid.R. 801(D)(2)(a). See, e.g., Inkton
at ¶ 90 (Facebook posting by appellant "admissible as a statement by a party-opponent"
under Evid.R. 801(D)(2)(a)).
{¶ 121} Appellant further contends the trial court erred in permitting Detective
Cutshall to testify that appellant and the other individuals in the vehicle posted news
articles of the shooting on Facebook. Appellant maintains the court's ruling was in
violation of Evid.R. 1002, the "best evidence rule."
{¶ 122} In response, the state argues the importance of Detective Cutshall's
testimony referring to the news articles was the fact that the articles were sent, rather than
the content of the articles themselves. The state maintains, therefore, the original was not
required under an exception to the best evidence rule, i.e., Evid.R. 1004(4).
{¶ 123} We note that only one of the 12 social media exhibits admitted at trial
pertained to a news article. Specifically, state's Exhibit No. J-5 included a news article
that, according to the testimony of T.D., he sent to appellant via a Facebook post. Evid.R.
1002 states: "To prove the content of a writing, recording, or photograph, the original
writing, recording, or photograph is required, except as otherwise provided in these rules
or by statute enacted by the General Assembly not in conflict with a rule of the Supreme
Court of Ohio." There are, however, "exceptions to that rule," including Evid.R. 1004(4).
State v. Winn, 173 Ohio App.3d 202, 2007-Ohio-4327, ¶ 19 (2d Dist.). Evid.R. 1004(4)
states: "The original is not required, and other evidence of the contents of a writing,
recording, or photograph is admissible if * * * [t]he writing, recording, or photograph is
not closely related to a controlling issue."
{¶ 124} Here, we agree with the state's argument that the purpose of Detective
Cutshall's testimony regarding the article was not to prove the content of the article;
rather, the import of the testimony was the fact the article was sent and, therefore, the
article pertained to a collateral matter, i.e., not "closely related to a controlling issue."
No. 18AP-523 33
Accordingly, the original was not required, nor has appellant demonstrated how the
outcome of the trial was affected by this purported violation of the best evidence rule.
{¶ 125} Based on the foregoing, appellant's fifth and sixth assignments of error are
not well-taken and are overruled.
{¶ 126} Under the seventh assignment of error, appellant asserts, relying on
arguments raised in two prior assignments of error, he was denied effective assistance of
counsel. Specifically, appellant argues his trial counsel was ineffective in failing to:
(1) object to the prosecutor's closing argument, (2) assert a constitutional right to admit
J.E.C.'s hearsay statements made to Detective Cutshall, and (3) rely on Evid.R. 803(8) as
a basis for non-application of the hearsay rule with respect to Exhibit No. 7.
{¶ 127} In considering a claim of ineffective assistance, a trial counsel's
performance "will not be deemed ineffective unless and until counsel's performance is
proved to have fallen below an objective standard of reasonable representation and, in
addition, prejudice arises from counsel's performance." State v. Bradley, 42 Ohio St.3d
136 (1989), paragraph two of the syllabus, following State v. Lytle, 48 Ohio St.2d 391(1976); Strickland v. Washington, 466 U.S. 668 (1984). Further, in order to "show that a
defendant has been prejudiced by counsel's deficient performance, the defendant must
prove that there exists a reasonable probability that, were it not for counsel's errors, the
result of the trial would have been different." Id. at paragraph three of the syllabus.
{¶ 128} Appellant first argues his counsel was deficient in failing to object to the
prosecutor's closing argument, asserting again that the prosecutor's reference to his
demeanor during the custodial interrogation constituted an improper inference of the
right to remain silent. However, in addressing appellant's second assignment of error, we
found no error, plain or otherwise, as a result of the statements made during closing
argument. Appellant has therefore shown neither deficient performance nor prejudice
resulting from those comments.
{¶ 129} Appellant also raises a claim of ineffective assistance "to the extent" this
court might find defense counsel "did not sufficiently argue that exclusion of the
evidence" suggesting K.S. was the shooter violated appellant's constitutional right to
present a defense. (Appellant's Brief at 43.) Appellant further contends trial counsel was
No. 18AP-523 34
deficient in failing to raise Evid.R. 803(8) as a basis for non-application of the hearsay
rule with respect to Exhibit No. 7.
{¶ 130} However, as noted by the state, defense counsel did raise a constitutional
objection at trial with respect to the statements at issue, arguing before the trial court that
"[appellant] has a constitutional right to present a defense that can trump local rules of
evidence." (Tr. Vol. III at 111.) The record further indicates trial counsel raised an
argument based on Evid.R. 803(8); specifically, counsel filed a pre-trial motion in limine,
asserting that Evid.R. 803(8) "protects the defendant from the prosecution's use of self-
serving law enforcement records and reports, while at the same time permitting
defendant to use those reports as he deems fit, which includes admitting them into
evidence." (Sept. 6, 2017 Mot. in Limine at 3.) Given that trial counsel raised the very
issues appellant contends should have been presented, appellant cannot demonstrate
deficient performance (nor does the record show prejudice).
{¶ 131} Based on the foregoing, appellant's seventh assignment of error is
overruled.
{¶ 132} Appellant's eighth assignment of error raises a cumulative error claim.
Specifically, appellant contends the cumulative effect of the errors raised under the
previous seven assignments of error deprived him of his right to a fair trial.
{¶ 133} Under the doctrine of cumulative error, "a conviction will be reversed
where the cumulative effect of errors in a trial deprives a defendant of the constitutional
right to a fair trial even though each of numerous instances of trial court error does not
individually constitute cause for reversal." State v. Garner, 74 Ohio St.3d 49, 64 (1995).
However, in order to show cumulative error, "there must be a showing of multiple errors
to cumulate, and '[w]here no individual, prejudicial error has been shown, there can be no
cumulative error.' " State v. Mendoza, 10th Dist. No. 16AP-893, 2017-Ohio-8977, ¶ 86,
citing State v. Jones, 2d Dist. No. 20349, 2005-Ohio-1208, ¶ 66. See also State v. Owens,
2d Dist. No. 17394 (Feb. 25, 2000) (The doctrine of cumulative error is "not applicable in
instances where there is an absence of harmless and prejudicial error.").
{¶ 134} With respect to the preceding seven assignments of error, we have found
no instances of error, and we therefore find the doctrine of cumulative error inapplicable.
{¶ 135} Appellant's eighth assignment of error is not well-taken and is overruled.
No. 18AP-523 35
{¶ 136} Under the ninth assignment of error, appellant maintains his convictions
for felonious assault on the bystander sisters, J.A.C. and J.E.C., are not supported by
sufficient evidence and are contrary to the manifest weight of the evidence. Appellant
asserts there is no evidence the shooter intended to injure the sisters or was aware his
single gunshot would injure two or more individuals.
{¶ 137} In considering "a claim of insufficient evidence, '[t]he 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.' " State v. McNight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 70,
quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, following
Jackson v. Virginia, 443 U.S. 307 (1979).
{¶ 138} By contrast, the test for considering whether a conviction is against the
manifest weight of the evidence "is much broader," whereby "[t]he court, reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983). Further, "[t]he discretionary power to grant a new trial should be exercised
only in the exceptional case in which the evidence weighs heavily against the conviction."
Id.{¶ 139} Appellant argues that, construing the evidence most strongly in favor of the
state, appellant fired a single gunshot at K.W.; appellant maintains, however, there is no
evidence he intended to injure the sisters (J.E.C. and J.A.C.), or that he was aware his
single gunshot would injure two or three people. Apparently anticipating the state's
response, appellant argues this case is distinguishable from this court's decision in State
v. Massalay, 10th Dist. No. 15AP-544, 2016-Ohio-779. Appellant further argues, in the
event this court finds Massalay not distinguishable, we should "overrule it." (Appellant's
Brief at 47.)
{¶ 140} The offense of felonious assault is defined under R.C. 2903.11(A)(2), and
states in part: "No person shall knowingly * * * [c]ause or attempt to cause physical harm
to another * * * by means of a deadly weapon or dangerous ordnance." R.C. 2901.22(B)
No. 18AP-523 36
states in part: "A person acts knowingly, regardless of purpose, when the person is aware
that the person's conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist."
{¶ 141} In Massalay, this court addressed the issue of whether a single shot fired in
the direction of more than one individual can support multiple felonious assault
convictions. Specifically, under the facts of that case, the appellant was convicted of two
counts of felonious assault based on evidence he fired a single shot at two police officers
who, at the time of the event, were standing next to each other. On appeal, the appellant
asserted the officers' testimony demonstrated it was "factually impossible for both officers
to have been struck by the one bullet fired, and therefore appellant 'could not have been
"aware that his conduct [would have] probably cause[d] a certain result," relative to the
second victim.' " Id. at ¶ 35. The appellant argued, therefore, the state had "presented
insufficient evidence on the 'knowingly' element of the second conviction." Id.
{¶ 142} In addressing the appellant's argument, this court initially rejected his
claim "that it was factually impossible for both officers to be physically harmed by one
shot." Id. at ¶ 38. Rather, we noted, "[t]he officers' testimony established that the
semiautomatic rifle is a powerful weapon, and that the officers were in very close
proximity to each other when the shot was fired, in such position to appellant that each
officer believed the rifle to be aimed at him." Id. Significantly, this court held, the
testimony established "that both officers were in the line of fire and at risk of injury by
appellant's single shot," and therefore the evidence supported the "second conviction for
felonious assault." Id.
{¶ 143} On review, we do not find persuasive appellant's attempt to distinguish
Massalay. Rather, we find Massalay controlling on the issue of whether the evidence
could support multiple convictions. In the present case, as in Massalay, there was
sufficient evidence to support a finding that appellant was aware there were three
individuals standing in close proximity when he fired the shot (from a moving vehicle),
and that all three individuals were "in the line of fire and at risk of injury" by the single
shot. Massalay at ¶ 38. See also State v. Prater, 10th Dist. No. 17AP-374, 2018-Ohio-
932, ¶ 26 (citing cases upholding multiple assault convictions where evidence established
No. 18AP-523 37
single shot fired by a defendant "toward multiple victims in the line of fire," and noting
that "[e]ven if only one shot had been fired in [individual's] direction and that of the
fleeing men, such evidence is not necessarily incompatible with multiple felonious assault
convictions"); State v. Ivory, 8th Dist. No. 83170, 2004-Ohio-2968, ¶ 9 (proximity to
drive-by shooting victim placed another "in the same line of fire"); Robinson v. Lazaroff,
N.D.Ohio No. 1:15 CV 426 (Jan. 26, 2017) (adopting as Ohio law view that "anyone within
the 'target range' in a drive-by shooting is 'in the line of fire' for purposes of a felonious
assault charge"). Further, on review of the record, we do not find the jury lost its way and
created a manifest miscarriage of justice in finding appellant guilty of felonious assault.
{¶ 144} Accordingly, we conclude appellant's convictions for felonious assault were
based on sufficient evidence and were not against the manifest weight of the evidence.
{¶ 145} Appellant's ninth assignment of error is not well-taken and is overruled.
{¶ 146} Appellant's tenth and eleventh assignments of error are interrelated and
will be considered together. Under the tenth assignment of error, appellant asserts the
trial court erred in failing to merge Counts 2 and 3 (felonious assault) with Count 1
(murder). Under his eleventh assignment of error, appellant argues the trial court erred
in failing to merge the improper discharge count with the other counts.
{¶ 147} R.C. 2941.25, Ohio's multiple count statute, states:
(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the
indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶ 148} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Supreme Court
"established that the test for determining whether offenses are allied offenses of similar
import requires the trial court to consider three separate factors: import, conduct, and
animus." State v. Collier, 8th Dist. No. 108687, 2020-Ohio-3033, ¶ 34. Under this test,
"[c]onvictions do not merge, and a defendant may be sentenced for multiple offenses if
No. 18AP-523 38
any of the following are true (1) the conduct constitutes offenses of dissimilar import,
(2) the conduct shows that the offenses were committed separately, or (3) the conduct
shows that the offenses were committed with separate animus." Id., citing Ruff at ¶ 25.
{¶ 149} In Ruff, the Supreme Court "provided two alternatives to determine
whether the offenses are of dissimilar import: separate victims or separate harms." State
v. Carradine, 8th Dist. No. 101940, 2015-Ohio-3670, ¶ 70. Specifically, the court in Ruff
held that "two or more offenses of dissimilar import exist within the meaning of R.C.
2941.25(B) when the defendant's conduct constitutes offenses involving separate victims
or if the harm that results from each offense is separate and identifiable." Ruff at ¶ 26.
{¶ 150} Appellant, while acknowledging the holding in Ruff that offenses are of
dissimilar import if they involve separate victims, reiterates his argument (made under
the ninth assignment of error) that the two sisters (J.A.C. and J.E.C.) were mere
bystanders and not victims. In addressing the previous assignment of error, however, we
rejected appellant's contention that there was insufficient evidence to support the
convictions for felonious assault involving J.E.C. and J.A.C. Here, because there are
multiple victims with respect to the various charges, the trial court did not err in failing to
merge the felonious assault counts with the murder count. Ruff at ¶ 26. See also State v.
Johnson, 2d Dist. No. 26961, 2017-Ohio-5498, ¶ 35 (where felonious assault counts
involve separate victims, the "harm for each is separate and distinct" and therefore trial
court "did not err in failing to merge these offenses as allied offenses of similar import").
{¶ 151} Appellant further contends the trial court erred in failing to merge Count
4, discharging a firearm near prohibited premises, with Counts 1, 2 or 3 of the indictment.
According to appellant, with respect to each pair of offenses, the conduct constitutes
offenses of similar import. Appellant further argues the offenses were committed
simultaneously (i.e., all offenses consist of the same conduct), and there was only a single
animus with respect to each pair of offenses.
{¶ 152} R.C. 2923.162(A)(3) defines the offense of discharging a firearm and
provides in part: "No person shall * * * [d]ischarge a firearm upon or over a public road or
highway." We have previously noted the elements of felonious assault (i.e., no person
shall knowingly cause or attempt to cause physical harm to another by means of a deadly
weapon). The offense of felony murder, set forth under R.C. 2903.02(B), states in part:
No. 18AP-523 39
"No person shall cause the death of another as a proximate result of the offender's
committing or attempting to commit an offense of violence that is a felony of the first or
second degree."
{¶ 153} Ohio courts, in considering the harm caused by the offense of discharge of
a firearm on or near prohibited premises, have held that "the language of R.C.
2923.162(A)(3) evinces an intent by the legislature that the discharge of a firearm on or
near a public roadway causes resultant harm to the public even if no person or no
structure is hit by the gunshots." State v. Johnson, 10th Dist. No. 18AP-889, 2019-Ohio-
4265, ¶ 18, citing State v. Williams, 2d Dist. No. 27663, 2018-Ohio-1647, ¶ 24; State v.
James, 8th Dist. No. 102604, 2015-Ohio-4987, ¶ 33.
{¶ 154} Thus, subsequent to Ruff, Ohio appellate courts have held that the
offenses of improper discharge of a firearm and felonious assault do not merge. See In re
T.P.-A., 2d Dist. No. 28196, 2019-Ohio-2038, ¶ 18 (trial court did not err in failing to
merge the offenses of felonious assault and improper discharge of a firearm where
individual "was the victim of the felonious assault, and the public at large was the victim
of the improper discharge offense"); State v. Johnson, 10th Dist. No. 16AP-860, 2017-
Ohio-9286, ¶ 19 (trial court did not err in failing to merge offense of improper discharge
of a firearm, which "offense occurs 'regardless of the presence of people,' " with felonious
assault, "which requires a human victim"); State v. Blanton, 8th Dist. No. 107237, 2019-
Ohio-1523, ¶ 13 (because convictions for attempted felonious assault of individual and
discharging a firearm on or near prohibited premises "were committed against separate
victims," i.e., the specific individual and the public at large, trial court properly found
"they are dissimilar in import and not subject to merger under R.C. 2941.25").
Ohio appellate courts have similarly found, post-Ruff, that the offenses of discharging a
weapon and murder are not subject to merger. See State v. Williams, 8th Dist. No.
107221, 2019-Ohio-794, ¶ 49 ("Pursuant to Ruff * * * the two offenses committed by
appellant involved different victims, the victim of the murder offense was [the individual
victim] while the victim of the discharging a firearm upon or over a public road or
highway was the public at large," the latter offense posing "a great risk of harm to the
public" that was "separate and differed in its significance from harm to a specific
victim."); State v. Shoecraft, 2d Dist. No. 27860, 2018-Ohio-3920, ¶ 58 (trial court did
No. 18AP-523 40
not err in failing to merge defendant's convictions for felony murder, felonious assault
and discharge of a firearm on or near prohibited premises). Thus, the trial court did not
err in failing to merge the offenses.
{¶ 155} Appellant's tenth and eleventh assignments of error are not well-taken
and are overruled.
{¶ 156} Having overruled appellant's eleven assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRUNNER and NELSON, JJ., concur.
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