State v. Haywood , 2023 Ohio 1121 ( 2023 )

[Cite as State v. Haywood, 2023-Ohio-1121.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
TERRANCE L. HAYWOOD,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 CO 0035Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2020 CR 436
BEFORE:
Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Dave Yost, Ohio Attorney General and Atty. Micah R. Ault, Assistant Ohio Attorney
General, 615 West Superior Avenue, 11th Floor, Cleveland, Ohio 44113, for Plaintiff-
Appellee
Atty. James R. Wise, 91 West Taggart, P.O. Box 85, East Palestine, Ohio 44413, for
Defendant-Appellant.
Dated: March 31, 2023
–2–
WAITE, J.
{¶1} Appellant Terrance L. Haywood was convicted by a jury for the murder of
his former girlfriend Destiny Moody and Appellant was sentenced to twenty-four years to
life in prison. On appeal, he raises five assignments of error. His first assignment of
error, relating to the testimony of the victim's minor son, alleges that the trial court failed
to conduct a thorough in camera voir dire of the child prior to trial. While Appellant is
correct, due to the other extensive evidence proving Appellant's guilt the error does not
rise to the level of prejudicial and reversible error. Appellant also argues that video
evidence did not have a proper foundation, admonitions to the jury to refrain from talking
about the case were insufficient, Appellant's trial counsel was ineffective, and that there
was cumulative error at trial requiring reversal. There is no merit to any of these other
arguments, and the judgment of the trial court is affirmed.
Factual History
{¶2} On October 21, 2019, twenty-six-year-old Destiny Moody, the victim in this
case, was working at McDonald's in Wellsville, Ohio. She ended her shift at 11:39 p.m.
and drove the short distance to her apartment at 407 Main Street in Wellsville. Her friend
Citasia Tisdale was watching Moody's two children at Moody's apartment while the victim
was at work.
{¶3} Appellant had been dating Moody for about a year and one-half, and was
staying at her apartment. Appellant is not the father of Moody's children. On or about
September 22, 2019, Appellant was with Moody at a bar in West Virginia. Apparently the
two argued, and he hit her until she was unconscious and fell to the ground. (10/21/21
Tr., p. 843.) A few days before the shooting, Moody told two of her friends that if anything
Case No. 21 CO 0035–3–
happened to her, to look to Appellant as the perpetrator. (10/20/21 Tr., p. 673; 10/21/21
Tr., p. 858.)
{¶4} Appellant spent the evening of October 21, 2019, with Michelle Byers at the
New Dimension Bar in East Liverpool. They left the bar in separate cars on October 22,
2019 at 12:20 a.m. Appellant was driving a 2008 GMC Acadia SUV. They drove their
cars to the victim's apartment in Wellsville and arrived at 12:29 a.m. Byers then continued
on to her own home.
{¶5} A few minutes after arriving at the victim's apartment, Appellant left to pick
up two friends one block away. Appellant drove them to a location a short distance away.
Appellant returned to the victim's apartment at 1:16 a.m.
{¶6} At 2:21 a.m., a surveillance camera from Cindy Mick's house across the
street from the victim's apartment captured the sound of a gunshot being fired. Seconds
later, a surveillance camera from My Bar, also across the street from the victim's
apartment, recorded Appellant running out of the back of her apartment. Both of these
cameras also recorded Appellant kicking in the front door of the victim's apartment at 2:32
a.m. A shoe print taken from the victim's front door had the same tread size and design
as Appellant's. Surveillance footage also captured Appellant hiding numerous items in
an alley behind the house.
{¶7} Five phone calls were made from Moody's cellphone between 2:44 a.m.
and 2:54 a.m.
{¶8} Citasia Tisdale gave contradictory testimony about the events around the
time of the murder. She had an arrangement with the victim that they would from time to
time watch each other's children, and she was watching two of the victim's children, along
Case No. 21 CO 0035–4–
with her own daughter, the night of the murder. She testified that she was awake well
past 3:00 a.m., but claimed to know nothing of the murder, which occurred at 2:21 a.m.,
until she awoke the next morning. She claimed to have found Moody in the morning lying
on the first floor with a head wound, not moving. Tisdale showed no emotion when the
police arrived. She did not tell the police that she had contacted Appellant that night
through text messages and phone calls several times prior to calling 911, but she did later
admit to that at trial. She also communicated with Appellant on Facebook, but then
deleted the messages. One message stated: “Remove these messages when we are
done.” (10/19/21 Tr., p. 473.) In another message Appellant asked Tisdale to find some
guns he had left at Moody's apartment. (10/19/21 Tr., p. 474.) Tisdale called 911 at
10:06 a.m. that morning.
{¶9} The police arrived quickly. The victim had a bullet wound on the right side
of her forehead and had no pulse. The police found a shell casing on the floor. They
found that the front door had been kicked in, and the door had a shoe impression on it.
They took a print of the shoe impression.
{¶10} Police recovered a firearm holster lying near the victim's body. The holster
was sent to the state BCI lab for DNA analysis, and resulted in a match with Appellant's
DNA.
{¶11} Moody and Appellant had engaged in numerous arguments prior to the
murder, and Moody had been trying to get Appellant to move out of the apartment. When
Moody arrived home from work the night prior to her death, she posted a message on
Facebook that she was single.
Case No. 21 CO 0035–5–
{¶12} A few hours after the murder Appellant went to the house of a former
girlfriend, Sadie Allen. Appellant told Allen that he had been to Moody's house after going
to the New Dimension Bar and that he and Moody had been arguing.
{¶13} Several days after the murder, the police searched the alley behind Moody's
apartment and found a firearm, a gun magazine, and a bag of ammunition. Police
returned the next day and recovered a firearm from the roof of a neighbor's garage. The
firearm from the roof was identified as the murder weapon. Investigators located
photographs of both weapons on Appellant's Facebook page.
{¶14} There is an overwhelming amount of video evidence in this case. Police
recovered surveillance video from My Bar across the street from the victim's apartment.
It captured much of what happened outside the victim's residence the night of the murder.
Appellant was identified in that video as the person arriving in the GMC Acadia at Moody's
apartment.
{¶15} Police also recovered video from Nick's Pizza, which is a few doors away
from the victim's apartment. Additionally, police recovered video from the Fraternal Order
of Eagles in Wellsville, which is a short distance from the victim's apartment. Police
recovered video from Kwik King convenience store, located close to the victim's
apartment. Again, police recovered video from the New Dimension Bar in East Liverpool.
These videos tracked the movements of Appellant and his vehicle that evening as well as
the movements of various witnesses.
{¶16} Police recovered video from the Wellsville High School football stadium.
Witness Sadie Allen's home was recorded in this video. The video showed Appellant's
GMC Acadia at Allen's home the morning after the murder.
Case No. 21 CO 0035–6–
{¶17} A few months after the murder, the victim's minor son J.M. told his uncle
Dustin Emler that “[h]is daddy shot his mommy.” (Tr., p. 872.) A week later, J.M. drew a
picture of a woman with a pool of blood around her and J.M. said “she got shot.” (Tr., p.
873.) Many months later, J.M. told social worker Courtney Wilson that “his dad shot her.”
(Tr., p. 899.) J.M. told Wilson that he saw his mom lying on the ground in a great deal of
blood, that he had heard his mom and dad arguing, and that he saw a gun. J.M. was four
years old at the time. At trial, J.M. could not identify Appellant in the courtroom, but did
identify a photo of Appellant as his dad.
Case History
{¶18} On November 18, 2020, Appellant was indicted on the following five counts:
murder pursuant to R.C. 2903.02(A), and unclassified felony, with a firearm specification;
aggravated burglary pursuant to R.C. 2911.11(A)(2), a first degree felony, with a firearm
specification; tampering with evidence under R.C. 2921.12(A)(1), third degree felony; and
having a weapon while under a disability pursuant to R.C. 2923.13(A)(3), third degree
felony. A five-day trial commenced on October 18, 2021. Before jury selection, the state
dismissed the aggravated burglary charge and the corresponding gun specification. On
October 22, 2021, the jury returned a verdict of guilty on all remaining charges and
specifications. On November 3, 2021, the court sentenced Appellant to fifteen years to
life in prison on the murder conviction, three years consecutive on the firearm
specification, three years consecutive for tampering with evidence, and three years
consecutive for having a weapon under a disability. The total sentence was twenty-four
years to life in prison. The sentencing judgment entry was filed on November 4, 2021.
The notice of appeal was filed on November 12, 2021.
Case No. 21 CO 0035–7–
{¶19} Appellant presents five assignments of error on appeal.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF [J.M.].
{¶20} On August 2, 2021, the court held an in camera hearing to determine the
competency of J.M., the victim's six-year-old son, to testify about events he witnessed
when the crime occurred. J.M. was four years old at the time of the crime. J.M. testified
at trial that his "dad" shot his mommy. (Tr., p. 882.) Appellant is not J.M.'s biological or
legal father. It is this testimony, combined with the fact that the trial judge failed to ask
J.M. any questions about the crime during the in camera voir dire, that form the basis of
this assignment of error. Appellant argues that the failure to ask questions about the
crime at the voir dire, combined with J.M.'s actual testimony, constitute reversible error.
{¶21} Evid.R. 601 states that “[e]very person is competent to be a witness except
as otherwise provided in these rules.” Although prior versions of the rule contained a
provision expressly dealing with children under ten years old, the current rule does not.
On the other hand, R.C. 2317.01 states: “All persons are competent witnesses except
those of unsound mind and children under ten years of age who appear incapable of
receiving just impressions of the facts and transactions respecting which they are
examined, or of relating them truly.” Therefore a “trial court must conduct a voir dire
examination of a child under ten years of age to determine the child's competence to
testify.” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 100. In
this voir dire the court must consider: (1) the child's ability to receive accurate impressions
of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect
Case No. 21 CO 0035–8–
those impressions or observations, (3) the child's ability to communicate what was
observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation
of his or her responsibility to be truthful. Id. citing State v. Frazier, 61 Ohio St.3d 247,
251, 574 N.E.2d 483 (1991). The competency review refers to the time of trial rather than
the time of the crime or subject matter of the testimony. State v. Clark, 71 Ohio St.3d
466, 470-471, 644 N.E.2d 331 (1994). The competency determination is reviewed on
appeal for abuse of discretion. Frazier at 251.
{¶22} The state contends that the Frazier/Maxwell competency review of a child
witness does not need to include questions about the crime at issue, and cites a long list
of cases supporting this interpretation. It is clear to us that factors one and two of the
Frazier/Maxwell test cited above direct the trial judge to question the child about the
impressions and facts that will be part of the testimony. The interpretation of these factors
by appellate courts have led many to conclude that they only require the trial judge to
determine if the child: has an understanding of truth and lies; can answer general
questions about his or her life; and can adequately discuss and relay back information
presented in the hearing.
{¶23} For example, the Sixth District case of State v. Jones held that:
Many Ohio courts have affirmed a trial court's finding of competency in
cases where the competency hearing did not include questions about the
crime at issue. Often, a competency hearing contains only general
questions about the child's everyday life. Although it arguably may have
been helpful if the trial court in this case had questioned the children as to
Case No. 21 CO 0035–9–
some of the events of the indictment, we find that doing so was not
necessary to the trial court's competency evaluation.
State v. Jones, 6th Dist. Lucas No. L-09-1262, 2011-Ohio-2173, ¶ 17.
{¶24} Similarly, State v. Brooks, 2d Dist. Montgomery No. 18502, 2001 WL
1295285 (Oct. 26, 2001), held that “a general inquiry is sufficient for a trial court to
determine if a child can perceive, recollect, and truthfully relate events.” Brooks further
held that “[a]lthough it would have been helpful if the trial judge would have questioned
the minor regarding the rape and the circumstances surrounding the rape, it was not
necessary in the trial court's competency determination.” Id. at *3.
{¶25} We cited Brooks in State v. Anderson, 7th Dist. No. 01-CA-214, 154 Ohio
App.3d 789, 2003-Ohio-5439, 798 N.E.2d 1155, when we found that: “In the present
case, the court determined Brea's competence by asking her questions that
demonstrated that she could recount and relate past events and that she knew she should
tell the truth in court. Therefore, we cannot say that the court abused its discretion in
failing to question Brea about the shootings.” Id. at ¶ 66.
{¶26} The state is therefore correct in explaining the proper standard for reviewing
voir dire questioning of a child witness who is under ten years old, with the caveat that it
was at least the intent of Frazier/Maxwell that voir dire should include questioning about
the crime or the content of the proposed testimony. This appeal underscores why
questioning the child about the crime itself can sometimes be necessary in determining
competency.
{¶27} The parties agree that J.M. was not asked any questions in voir dire about
the crime. Appellant is correct that J.M. was not asked questions testing his ability to
Case No. 21 CO 0035– 10 –
receive accurate impressions, whether those are immediate impressions or the child’s
impressions at the time of murder. We also must keep in mind that the voir dire occurred
on August 2, 2021, while the crime occurred on October 22, 2019. At the voir dire, J.M.
was asked about his family (but not about Appellant's involvement in the family), his
daycare, his meals, Christmas presents, his play time, and about telling the truth. J.M.
was also able to tell when the trial judge would say something incorrect (on purpose).
The judge did this to verify that J.M. knew whether the judge was telling the truth or not.
{¶28} At trial J.M. was asked similar types of questions. The critical piece of
testimony at trial, though, was the following:
Q. Okay. The last time that you saw your mom, what happened?
A. The cops took me away from and she was away.
Q. The cops took you away?
A. Yeah, before I could see.
Q. Did you see your dad do something to your mom?
A. No because the cops took me away.
Q. All right. The cops took you away.
A. Yeah.
Q. Before that happened --
Case No. 21 CO 0035– 11 –
A. Yeah.
Q. -- did you see your dad and your mom?
A. Yes.
Q. What happened?
A. My dad shot my mom, and cops took me away, and I couldn't see
again.
Q. Your dad shot your mom?
A. Yes.
Q. And the cops took you away so you wouldn't see it again?
A. Yes.
Q. After your dad shot your mom, did you talk to your dad at all?
A. No because I wasn't allowed.
Q. You weren't allowed. Okay. What did you do after your dad shot
mom?
A. The cops told me to come outside, so I did, and got in the police car
and they took me to my grandma's.
Q. Did you see your mom on the ground?
Case No. 21 CO 0035– 12 –
A. Yes.
Q. What did she look like?
A. Laying on the ground and blood was everywhere.
(Tr., pp. 881-883.)
{¶29} This is all the information that was revealed on direct examination. On
cross-examination, J.M. also testified that after his mom came home from work his dad
and mom had an argument inside the house. (Tr., p. 887.) He testified that he was
upstairs watching television when they argued. He testified that he and siblings heard a
shot, and after that they ran outside. (Tr., p. 889.)
{¶30} Other parts of the record indicate that J.M. did not come forward with this
story immediately. A few months after the murder J.M. told his uncle that his daddy shot
his mommy. This was reported to authorities. J.M. was not interviewed by social worker
Courtney Wilson of Akron Children's Hospital until July 15, 2020, nine months after the
murder. (Tr., p. 894.) J.M. told Ms. Wilson that “his dad shot her.” (Tr., p. 899.) J.M.
told her that there was a great deal of blood, that his mom and dad were arguing outside
before his dad entered the home, and that he saw a gun. (Tr., p. 899.) Ms. Wilson stated
that there was nothing else of importance from that interview. At trial, J.M. did not
remember having this interview. (Tr., p. 885.) Nothing in his trial testimony indicates that
he saw a gun, and at trial he testified that the argument happened inside.
{¶31} A careful reading of the transcripts reveals that J.M. did not testify he saw
the shooting, but only that “my dad shot my mom.” This is exactly how Ms. Wilson
described it: that J.M. said “that his dad shot her.” He could have been told this by any
Case No. 21 CO 0035– 13 –
number of people rather than having witnessed it himself. The statement “my dad shot
my mom” is actually a conclusion and not testimony regarding witnessing a crime. He
also testified that he was upstairs watching television, heard a shot, and immediately ran
outside. There is no means of testing J.M.'s trial testimony against the answers in the
voir dire because he was not asked what he remembered about the crime during voir dire.
Obviously, a child testifying about his mother's murder is an important piece of evidence,
and yet, J.M. failed to actually state that he saw the murder and seemed to contradict
himself in his testimony.
{¶32} Based on the specific facts of this case, we must conclude that the trial court
committed error in the voir dire of this child. However, the next important question is
whether the error affected the outcome of the trial. We conclude it did not. The volume
of evidence against Appellant, even without the child's testimony, is overwhelming.
Multiple witnesses and security camera videos placed Appellant and his car at the scene
of the crime at the time of the shooting. Appellant’s DNA matched DNA evidence on the
gun holster, the footprint on the front door matched Appellant's. The murder weapon that
was recovered appeared in photos on Appellant's Facebook page, threats were made on
Facebook, and there was prior evidence of Appellant’s attacks on the victim, including
choking her with a cord, punching her in the face, and beating her until she was
unconscious. The record contains Appellant's prior threats to kill the victim. Appellant
made statements to multiple witnesses that he was at the victim's home the night of the
crime. There is evidence that Citasia Tisdale and Appellant tried to cover up the crime
by making it appear the shooting occurred later in the morning, after Appellant had
departed from the scene. The jurors, if they were paying attention to J.M.'s testimony,
Case No. 21 CO 0035– 14 –
may have noticed the obvious fact that he did not say he saw the murder take place.
Regardless, there is an overwhelming amount of evidence in this case on which to base
a conviction. We conclude that the error in allowing J.M.'s testimony did not affect the
outcome of this case. As the error was not prejudicial, Appellant's first assignment of
error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT FAILED TO PROPERLY ADMONISH THE JURY
DURING BREAKS IN THE TRIAL.
{¶33} R.C. 2945.34 states: “If the jurors are permitted to separate during a trial,
they shall be admonished by the court not to converse with, nor permit themselves to
be addressed by any person, nor to listen to any conversation on the subject of the
trial, nor form or express any opinion thereon, until the case is finally submitted to
them.” Appellant argues that the trial court gave a single admonition at the beginning
of the five-day trial, but the next eleven times that the court should have admonished
the jury, the judge merely reminded the jurors of the initial admonishment. Appellant
has no quarrels with the original admonition. He only objects to the cursory nature of
all the subsequent admonitions. Appellee does not disagree with this assessment of
the record, but concludes that the initial admonition was sufficient. The initial
admonishment covers five pages of the transcript and is very extensive.
{¶34} Appellee notes that an error in admonishing the jury is not reversible
error unless it is also shown that the jury was in fact guilty of misconduct. State v.
Helm, 1st Dist. Hamilton No. C-150242, 2016-Ohio-500, 56 N.E.3d 436, ¶ 25. The
Case No. 21 CO 0035– 15 –
mere violation of R.C. 2945.34 does not, in and of itself, constitute reversible error:
“R.C. 2945.34 does not prescribe reversal if the trial court fails to comply[.]” State v.
Rose, 2nd Dist. Montgomery No. 17431, 1999 WL 957715, *2. Appellant does not
disagree, but he argues that this prejudicial error requirement should be waived in this
appeal.
{¶35} Appellee also points out that Appellant did not object to the abbreviated
jury admonitions, and that failure to object waives all error except for plain error. State
v. McCray, 5th Dist. Stark No. 2013CA00133, 2014-Ohio-2289, ¶ 42, citing Warner v.
State, 104 Ohio St. 38, 135 N.E. 249 (1922). There are no objections noted in the
record.
{¶36} Based on the very clear admonition given by the trial court at the
beginning of trial, the lack of any evidence of juror misconduct, and the failure to
preserve this objection, Appellant's second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶37} Appellant argues that his counsel engaged in ineffective assistance of
counsel, citing six examples.
{¶38} The test for an ineffective assistance of counsel claim is two-part: whether
trial counsel's performance was deficient and whether the deficiency resulted in prejudice
to the defendant. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-4153, ¶ 18,
citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107.
Case No. 21 CO 0035– 16 –
{¶39} In order to prove prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” State v. Lyons, 7th Dist. Belmont No. 14 BE
28, 2015-Ohio-3325, ¶ 11, citing Strickland at 694; see also State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. The appellant must
affirmatively prove the alleged prejudice occurred. Id. at 693. The appellant also must
demonstrate more than vague speculations of prejudice to prove prejudice. State v. Otte,
74 Ohio St.3d 555, 566, 660 N.E.2d 711 (1996).
{¶40} If one prong of the Strickland test is not met, an appellate court need not
address the remaining prong. Id. at 697. The appellant bears the burden of proof on the
issue of counsel's effectiveness. A licensed attorney is presumed competent. State v.
Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).
{¶41} Courts are very deferential to the tactical choices that attorneys make at
trial and “indulge a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance.” Bradley at 142, citing Strickland at 689.
Counsel's tactical choices, even those having negative consequences, normally do not
constitute ineffective assistance. State v. Carpenter, 116 Ohio App.3d 615, 626, 688
N.E.2d 1090 (2nd Dist.1996).
{¶42} Appellant's first example of ineffectiveness is that his counsel failed to
object to the lack of any black jurors. Appellant is black.
{¶43} The constitutional guarantee to a jury trial “contemplates a jury drawn from
a fair cross-section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct.
Case No. 21 CO 0035– 17 –
692, 42 L.Ed.2d 690 (1975). This is not a specific requirement that the jury “must mirror
the community and reflect the various distinctive groups in the population." Id. at 538.
“ ‘Defendants are not entitled to a jury of any particular composition, but the jury wheels,
pools of names, panels, or venires from which juries are drawn must not systematically
exclude distinctive groups in the community and thereby fail to be reasonably
representative thereof.’ ” State v. Johnson, 88 Ohio St.3d at 117, 723 N.E.2d 1054,
quoting Taylor at 538.
In order to establish a violation of the fair representative cross-section of the
community requirement for a petit jury array under the Sixth and Fourteenth
Amendments to the United States Constitution, a defendant must prove: (1)
that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from which
juries are selected is not fair and reasonable in relation to the number of
such persons in the community; and (3) that the representation is due to
systematic exclusion of the group in the jury-selection process.
State v. Fulton, 57 Ohio St.3d 120, 566 N.E.2d 1195, (1991), paragraph two of the
syllabus.
{¶44} Appellant has presented no evidence of any attem pt to systematically
exclude persons of color from the jury. His argument is based solely on the fact that
there were no black persons on his jury. However, underrepresentation or lack of
representation of a group on a single jury does not constitute systematic exclusion.
State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 113; State v.
Case No. 21 CO 0035– 18 –
McNeill, 83 Ohio St.3d 438, 444, 700 N.E.2d 596 (1988). Appellant's argument,
therefore, has no merit.
{¶45} Appellant raises, in very cursory fashion, five other alleged errors made
by counsel. First, counsel at one point called the victim by the wrong name. Second,
the court mentioned that a matter regarding the presentation of exhibits to a particular
witness would be handled at a break, but the matter was not discussed at the break,
and counsel did not object. Third, counsel did not object having the audio recording
played in front of the jury. Fourth, a witness was permitted to testify “regarding other
bad acts” without objection. (Appellant's Brf., p. 11.) Fifth, a witness was allegedly
permitted to give “hearsay testimony” without objection. (Appellant's Brf., p. 11.)
{¶46} Appellant does not explain how any of these alleged errors are actually
errors as a matter of law, does not explain how any of them may have prejudiced him
at trial, fails to cite a single statute, case or specific rule that is violated, and gives no
further explanation as to how these allegations constitute ineffective assistance of
counsel.
{¶47} It is not the state’s responsibility to make Appellant's arguments for him,
only to then refute them as part of its own argument. Without any citation of law or
actual argument made in support of Appellant's allegations, all of his trial counsel's
actions can be attributed either to trial tactics, or may be deemed harmless errors,
either of which defeats a claim of ineffective assistance of counsel. Crim.R. 52 allows
for harmless errors to be disregarded, whether at trial or on appeal. “[T]he harmless-
error rule, was created in essence to forgive technical mistakes.” State v. Morris, 141
Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24.
Case No. 21 CO 0035– 19 –
{¶48} For all these reasons, Appellant's third assignment of error is without
merit.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED IN ALLOWING VIDEO SURVEILLANCE AND
FACEBOOK POSTS INTO EVIDENCE.
{¶49} Appellant argues that seven surveillance video recordings and a variety of
postings on the social media platform Facebook should not have been entered into
evidence. Appellant contends that none of these items were admitted with proper
authentication. Appellant's contentions are incorrect.
{¶50} Evid.R. 901 requires evidence to be properly authenticated before it is
deemed admissible. “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.” “This low threshold standard does not
require conclusive proof of authenticity, but only sufficient foundational evidence for the
trier of fact to conclude that the document is what its proponent claims it to be.” State v.
Easter, 75 Ohio App.3d 22, 25, 598 N.E.2d 845 (4th Dist.1991). “[T]here is nothing to
prevent parties from voluntarily stipulating to the admissibility of evidence otherwise
requiring authentication.” Dungan v. Poynter, 12th Dist. Clinton No. CA96-09-016, 1997
WL 423348, *1, citing Ohio Evid. R. 901, staff notes.
{¶51} Starting with the Facebook posts, the parties stipulated to the authenticity
of all of them. (Tr., p. 828.) Parties are permitted to stipulate to authenticity. Therefore,
there is no error in failing to provide further evidence of authenticity.
Case No. 21 CO 0035– 20 –
{¶52} Regarding the videos, the parties agree that video evidence is authenticated
in the same manner as photographic evidence. One method of authenticating
photographic evidence is under the “pictorial testimony” theory, in which the photograph
is merely illustrative of a witness' testimony and must have a sponsoring witness who
must testify "that it is a fair and accurate representation of the subject matter, based on
that witness' personal observation." State v. Green, 7th Dist. Mahoning No. 12 MA 226,
2014-Ohio-648, ¶ 12, citing Midland Steel Prods. Co. v. U.A.W. Local 486, 61 Ohio St.3d
121, 129-130, 573 N.E.2d 98 (1991).
{¶53} Another way to authenticate photographic or video evidence is via the “silent
witness” theory: “Under the silent witness theory, photographic evidence may be
admitted upon a sufficient showing of the reliability of the process or system that produced
the evidence.” Midland Steel Prods. Co. at 130. Using this method of authentication, “the
photographic evidence is a ‘silent witness’ which speaks for itself, and is substantive
evidence of what it portrays independent of a sponsoring witness.” Id.{¶54} “Silent witness” authentication normally requires proof of the reliability of the
video recording system, proof of the custody of the video recording, a showing that the
evidence has not been altered, and that the video being shown is from the camera system
being described. State v. Green, 7th Dist. Mahoning No. 12 MA 226, 2014-Ohio-648,
¶ 13. “It is not necessary that the individual authenticating the footage must have actually
witnessed the events as they occurred, merely that he or she is able to verify that the
material is what it purports to be: in this instance, the complete surveillance footage of the
incident.” Id. at ¶ 14. Reliability can be proven by the video equipment installer, a user
Case No. 21 CO 0035– 21 –
of the equipment, or by a law enforcement officer who investigated the matter. State v.
Vermillion, 4th Dist. Athens No. 15CA17, 2016-Ohio-1295, ¶ 17-20.
{¶55} Authentication is an evidentiary matter and is reviewed under an abuse of
discretion standard. Green at ¶ 11. “We have defined an abuse of discretion as conduct
that is unreasonable, arbitrary or unconscionable.” State v. Beasley, 152 Ohio St.3d 470,
2018-Ohio-16, 97 N.E.3d 474, ¶ 12.
{¶56} Five of the videos are of the street outside of the victim's apartment and
show vehicle and foot traffic at the time of crime. They are used to track Appellant inside
his vehicle and on foot, and to establish the movements of other persons at or near the
time of the crime. One of the videos also includes the sound of a gun being fired at 2:21
a.m. There are two exhibits from Nick's Pizza because Lieutenant Marsha Eisenhart left
out one video clip from the first exhibit she created for trial, so she created a second one.
{¶57} The video from Wellsville School District was introduced to corroborate the
testimony of Sadie Allen. The video from New Dimension Bar in East Liverpool was
introduced to corroborate the testimony of Michelle Byers.
{¶58} Neither party cites to any objections made by Appellant to the authentication
of the videos when they were entered into evidence. Appellant's counsel did object to the
accuracy of the time-stamp on the video provided by Cindy Mick, which could be
interpreted as an objection to authenticity. (Tr., pp. 1019-1021.) Appellant's counsel
raised other objections to the videos, but none of the objections are based on
authentication. Therefore, the challenge to the authentication of the video exhibits is
reviewed for plain error, except for the Mick video, which is reviewed for abuse of
discretion.
Case No. 21 CO 0035– 22 –
{¶59} Pursuant to Crim.R. 52(B), “plain errors” that affect a defendant's
substantial rights “may be noticed although they were not brought to the attention of the
court.” A court will only take “[n]otice of plain error * * * with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State
v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶60} Wellsville Police Department Lieutenant Eisenhart authenticated the seven
video recordings being challenged by Appellant. Further, the state provided evidence
from the users of each of video, who testified about the footage provided to Eisenhart.
These witnesses all described how the surveillance systems worked, how the digital files
were stored, and how the files were to be delivered to the police. These facts alone satisfy
the authentication standards discussed above for video evidence under a plain error
standard.
{¶61} Appellant challenges the video from Cindy Mick because she did not testify
about the actual video clip that would be used at trial and because it is not clear how the
Wellsville Police Department obtained the video. This video is from a backyard video
camera. Cindy Mick testified about the type of camera, how it was installed in her yard,
how it recorded images, that it was on a continuous record setting, and that it included
sound. The file and folder structure of the SD card (a digital storage device for holding
electronic data) were examined at trial to show that there was a folder for every hour and
minute of recording. Mick testified that the video clips showed her backyard.
{¶62} Mick was not asked to view the specific clip that was relevant to trial. This
is not a requirement under Midland Steel Prods. Co., this Court's Green case, or any case
setting forth the "silent witness" method of authenticating video evidence. The "silent
Case No. 21 CO 0035– 23 –
witness" method authenticates the process for recording the videos, not the detailed
content of the videos. Mick testified that she put the SD data card in a baggy, handed it
to the police, and identified the exhibit at trial. There was no abuse of discretion in
allowing this video into evidence.
{¶63} Appellant challenges the video from My Bar because the entire DVR
recording machine was given to the police instead of a copy of the recording, but the
recording used at trial was not directly on the DVR machine, but a copy of the video on a
flash drive. It is not clear why Appellant believes this was a legal error. Lieutenant
Eisenhart testified that the DVR machine was sent to the state BCI lab, and a copy of the
video was retrieved and put on a flash drive. (Tr., p. 1024.) Appellant did not object to
this authentication at trial, and the chain of custody was discussed at trial. When Roy
Larkins, the owner of My Bar, was on the stand, the state offered to show him all the video
that was on the flash drive, but Appellant's counsel replied that he did not want to see all
of the video content. (Tr., p. 320.)
{¶64} Appellant objects to the use of the video from New Dimension Bar because
witness Mark Walton, the owner of the bar, was not asked to authenticate the actual video
clip used at trial. As mentioned earlier, this is not required when authenticating a video
clip under the “silent witness” theory.
{¶65} Appellant objects to the use of the video clips from Nick's Pizza because
the first clip did not show the date and time, but the second clip did. Our examination of
the video clips reveal time stamps on both. The testimony of Lieutenant Eisenhart at trial
was that the two exhibits, 57 (a flash drive) and 205 (a disc), were identical except that
205 had one additional clip on it that was inadvertently left off of exhibit 57. The new
Case No. 21 CO 0035– 24 –
copy, exhibit 205, was produced so that all the clips needed for trial were on one disc.
The record does not support that any error occurred.
{¶66} Appellant takes issue with the video from the Fraternal Order of Eagles
because witness William Collins, a trustee for the Eagles, did not authenticate the entire
video clip. Again, this is not required under Midland Steel Prods. Co., the Green case, or
any case setting forth the “silent witness” theory of authentication.
{¶67} Appellant challenges the video from Kwik King because witness Elaine
Austin, who was a clerk and manager at the store, did not know how the video was turned
over to police and because she only authenticated part of the video. She also did not
know whether the data from all cameras was stored on the same digital recorder. Austin
testified about the camera system, where the cameras were located, and that she was
familiar with their use through the prior investigation of a robbery. She identified the video
for one of the cameras and explained what the footage was from that camera. Lieutenant
Eisenhart testified that she went into Kwik King, asked for a copy of the video, and
someone copied it for her. (Tr., p. 1029.) Appellant did object to the introduction of this
video.
{¶68} There is a very low bar for authenticating evidence, particularly video
evidence under the "silent witness" theory. The purpose of authentication under this
theory is to show the reliability of the process that produced the evidence, and the video
will then speak for itself that it is what it purports to be. Midland Steel Prods. Co. at 129-
130. There was testimony about how the Kwik King surveillance system worked and that
the cameras properly and accurately recorded images from the store. As vague as some
Case No. 21 CO 0035– 25 –
of Lieutenant Eisenhart's testimony was about the video, it did show how the video was
obtained.
{¶69} Appellant does not appear to be challenging the actual content of the Kwik
King videos, but simply believes that the authentication is not sufficient. Even if the Kwik
King evidence had been excluded from trial, this would not have changed the result of the
trial. The Kwik King video was only one of many pieces of evidence showing that
Appellant was at or near Destiny Moody's apartment at the time of the murder. Appellant
has not demonstrated any prejudice even if there was insufficient authentication of this
video, and there is no basis for sustaining this assignment of error with respect to the
Kwik King video.
{¶70} Appellant challenges the use of the video from Wellsville High School
football stadium. Witness Bill Ricciardulli, the tech coordinator for Wellsville schools, did
not know how the police obtained the video and there is no further evidence in the record
as to how it became part of the evidence. Ricciardulli otherwise testified as to the design,
installation, and the manner in which the system worked. No objections appear in the
record as to this evidence. He testified that the part of the video he saw at trial was
accurate and true. Without some type of challenge to the content of the video, and with
no objection raised, no plain error can be found as to the inclusion of this evidence at trial.
{¶71} Appellant's fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 5
DEFENDANT WAS DENIED A FAIR TRIAL DUE TO THE CUMULATIVE
ERRORS IN THE ALLOWANCE OF INADMISSIBLE TESTIMONY, THE
ACTIONS OF COUNSEL AND THE COURT.
Case No. 21 CO 0035– 26 –
{¶72} Appellant argues that there was cumulative error in this case requiring
reversal. Under the doctrine of cumulative error, a reviewing court will reverse a
conviction when the cumulative effect of errors deprives a defendant of a fair trial even
though each of the instances of error does not individually constitute cause for reversal.
State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 140, citing State
v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 223. Harmless
errors do not become reversible error simply because of the sheer number. State v. Hill,
75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996). The defendant must make an
affirmative showing that multiple errors deprived him of a fair trial. State v. Hohvart, 7th
Dist. Mahoning No. 06 MA 43, 2007-Ohio-5349, ¶ 37.
{¶73} The only error Appellant has demonstrated was the deficient voir dire of the
child witness J.M., and since Appellant was not prejudiced by this error it does not rise to
the level of reversible error. With no other demonstrated errors, it is apparent there is no
cumulative error. Appellant's fifth assignment of error is overruled.
Conclusion
{¶74} Appellant has raised five assignments of error on appeal. The first was
sustained, as the trial court should have conducted a more thorough voir dire of the child
witness J.M. Nevertheless, this error did not affect the outcome of trial due to the
overwhelming evidence of guilt offered in this case. Thus, it was not reversible error.
Appellant also argued that the court failed to properly admonish the jury to not talk about
the case, but the record contains an extensive admonishment at the beginning of trial and
a reminder of that admonishment many times throughout the trial. Appellant argued that
trial counsel was ineffective, but he could not demonstrate either error or prejudice from
Case No. 21 CO 0035– 27 –
counsel's actions. Appellant argued that Facebook posts were not properly
authenticated, but the parties stipulated to authenticity. Appellant argued that seven
videos should not have been admitted as evidence due to lack of authentication, but the
record shows they were properly authenticated. Finally, he argued cumulative error, but
there must be multiple errors on the record for cumulative error to apply. All five of
Appellant's assignments of error are overruled and the judgment of the trial court is
affirmed in full.
Robb, J., concurs.
Hanni, J., concurs.
Case No. 21 CO 0035[Cite as State v. Haywood, 2023-Ohio-1121.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.