State v. Dorsey , 2021 Ohio 878 ( 2021 )

[Cite as State v. Dorsey, 2021-Ohio-878.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1117
Appellee Trial Court No. CR0201802410
v.
Jeromain Dorsey DECISION AND JUDGMENT
Appellant Decided: March 19, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Emil G. Gravelle III, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Jeromain Dorsey, appeals the May 15, 2019 judgment of the
Lucas County Court of Common Pleas sentencing him to an aggregate prison term of ten
years. For the following reasons, we affirm.
I. Background and Facts
{¶ 2} On August 1, 2018, Dorsey and his codefendant, Raheem Belmon, were
each indicted on one count of second-degree felonious assault in violation of R.C.
2903.11(A)(2), with a three-year firearm specification under R.C. 2941.145, in
connection with the July 3, 2018 shooting of D.B. that left D.B. almost totally paralyzed
from the shoulders down.
{¶ 3} D.B. contracted an infection related to his injuries and was hospitalized
before Dorsey and Belmon were brought to trial, so the parties conducted a trial
deposition of D.B. He testified that he was 18 years old; at the time of the shooting, he
was a 17-year-old high school student. He admitted that he had posted pictures on his
Facebook page of himself with guns and displaying gang symbols because he “just
wanted to,” and said that he had “friends that’s in a gang” and he was “surrounded by it,”
but D.B. denied being a gang member.
{¶ 4} D.B. said that he and Belmon were friends, and, although D.B. was
Facebook friends with Dorsey, they did not have any other relationship and they had
never met in person before the shooting. According to D.B., Dorsey befriended him on
Facebook, but he could not recall how long before the shooting they became Facebook
friends. D.B. was not fighting with Belmon or Dorsey before the shooting and did not
have any other problems with either man.
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{¶ 5} On July 3, Belmon contacted D.B. through Facebook to tell him that he had
“some females waiting * * *.” Belmon later told D.B. to delete all of their messages
from Facebook and not to tell anyone that they were together.
{¶ 6} D.B. agreed to meet with Belmon, who arrived awhile later in a car driven
by a man D.B. did not know. D.B. could not recall the model or color of the car.
Because D.B. did not know the driver, he did not trust him, and although D.B. did not
know where he and Belmon were going, he suggested that they walk. When D.B. said
that they should walk, he first testified that Belmon “[t]ook a gun out the backseat of the
car[,]” but when the prosecutor followed up by asking if D.B. was “saying that Raheem
Belmon got back in the car and got a gun out of the backseat[,]” D.B. responded, “[t]he
trunk.”
{¶ 7} According to D.B., this all happened “[l]ate at night” in an area with no
streetlights, so it was dark. While they were walking, D.B. said that “[s]omething told
me to turn around. So I turned around. I told [Belmon] somebody’s following us.” D.B.
said that Belmon told him to duck behind some bushes and Belmon “pulled out his gun,
like he [was] about to try to protect [D.B.], but really he [was] helping * * *” the person
walking toward them. The prosecutor asked D.B. if he was able to see who the person
coming toward them was once that person got closer, and D.B. responded, “Jeromain
Dorsey.” Dorsey failed to appear for the deposition, so he was not in the room at the
time, leading the prosecutor to show D.B. Dorsey’s jail booking photograph to confirm
that the person he identified as “Jeromain Dorsey” was Dorsey. Although this was the
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first time that D.B. had visually identified the second person involved in the shooting,
Dorsey’s attorney did not object to the identification.
{¶ 8} On cross-examination, D.B. explained that the shooter he identified as
Dorsey was approximately 20 feet away from him, and he confirmed that there were no
streetlights and the area was dark. He said that he could not remember what clothing the
shooter was wearing, what type of hairstyle he had, or whether he had facial hair, but he
remembered that the shooter was not wearing glasses or a hat. D.B. specifically testified
that he saw the shooter’s face and remembered what he looked like.
{¶ 9} When Dorsey was close to D.B. and Belmon, both men turned their guns on
D.B., so D.B. ran. He attempted to jump a fence, but got stuck. He said that both men
were shooting at him while he was stuck on the fence, but that Belmon stopped shooting,
and that’s when Dorsey “shot [D.B.] in the neck” and D.B.’s “whole body collapsed on
the ground.” D.B. testified that he “thought [he] was dead or about to die * * *.” Neither
Dorsey nor Belmon said anything to D.B. before or during the shooting.
{¶ 10} Belmon and Dorsey left D.B. lying on the ground, but returned later with a
third man. D.B. recognized all three men’s voices. D.B. played dead, and the men
believed that he was dead. They went through D.B.’s pockets, and the third man took
D.B.’s cellphone. Then, the three men left.
{¶ 11} On cross, D.B. said that whoever had taken his phone also deleted the
Facebook messages between him and Belmon. He also confirmed that the only time he
had ever heard Dorsey speak was while Dorsey was shooting at him, but he claimed that
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he recognized Dorsey’s voice among the voices of the men who returned to rifle through
his pockets after the shooting.
{¶ 12} D.B. laid on the ground calling for help for approximately six hours before
someone found him and called 911. Officers from the Toledo Police Department
(“TPD”) responded to the scene and waited with D.B. until medical help arrived. In
response to the prosecutor’s questions, D.B. indicated that the detective asked him who
had shot him and that he told the detective “Jeromain Dorsey and Raheem Belmon.” A
TPD officer met with D.B. after the shooting and showed him a photo array from which
D.B. identified Belmon as one of the men who shot at him on July 3.
{¶ 13} As a result of the gunshot wound, D.B. is almost totally paralyzed. He said
that he has some ability to move his left hand, but is unable to move his right hand or his
feet. He had been hospitalized with two infections since the shooting, and had stayed in
two rehabilitation facilities during his recovery. 1
{¶ 14} A week after the deposition and four days before trial, Dorsey filed a
motion to suppress D.B.’s identification of him as the shooter. He argued that D.B.’s
identification was unreliable because (1) D.B. made a full identification of Dorsey as the
1
Although D.B. did not provide much detail about his injuries in his testimony, at trial,
the parties stipulated to the admission of over 10,000 pages of D.B.’s medical records,
which show that the bullet severed D.B.’s spinal cord at the level of his C7-T1 vertebrae,
leaving him with some gross motor movement in his left shoulder, but no ability to move
his other extremities and no sensation below his nipple line. The records—that account
for only the first 33 days after D.B. was shot—also detail numerous tests and surgical
procedures performed on D.B. and the difficulty he had adjusting to his new
circumstances.
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shooter for the first time at the deposition, which was nine months after the shooting;
(2) D.B. gave the name “Jeromain Dorsey” at the time of the shooting, but did not
provide a physical description of the shooter, and police did not show D.B. a photo array
from which D.B. could have identified the “Jeromain Dorsey” who shot him, so it was
unclear if D.B. meant the same Jeromain Dorsey who was arrested and indicted for the
crime; and (3) D.B. identified Dorsey as the shooter only after the prosecutor showed him
Dorsey’s mugshot during the deposition, which was unduly suggestive.
{¶ 15} The state responded that D.B.’s identification of Dorsey at the deposition
was not impermissibly suggestive because Dorsey chose not to appear at the deposition,
so the only means of identification available to the state was Dorsey’s photograph, and
D.B.’s identification of Dorsey had indicia of reliability because D.B. was familiar with
Dorsey from Facebook and had consistently named “Jeromain Dorsey” as the shooter.
{¶ 16} Dorsey’s and Belmon’s cases were tried together to a jury. The morning of
the trial, the trial court heard arguments on Dorsey’s motion to suppress. After hearing
from counsel, the court denied the motion because D.B. made the identification in court,
Dorsey—by his own choice—was not present at the proceeding at which D.B. identified
him, forcing the state to use the photograph of Dorsey that it had available so that D.B.
could make the identification, and, under the circumstances, it was a “stretch” to say that
D.B.’s identification was “somehow suggestive” or prejudicial to Dorsey’s defense.
{¶ 17} At trial, the state presented the testimony of the 911 operator who answered
the call about D.B.’s shooting; TPD officers, Anthony Walden and Benjamin Woody;
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TPD detective, Paul Marchyok; and Belmon’s ex-girlfriend. The state also played the
video of D.B.’s deposition for the jury in lieu of D.B.’s live testimony. The following
facts were elicited at trial.
{¶ 18} At approximately 9:30 a.m. on July 4, 2018, a passerby called 911 to report
that he heard someone calling for help. The person was lying between a house and a
fence and said that he had been shot. The passerby had not heard any gunshots or seen
anyone other than the person requesting help.
{¶ 19} Officers Walden and Woody, along with TPD detective Larry Anderson,
responded to the 911 call. They found D.B. on the ground in a narrow space between a
fence and an abandoned house. When Woody first saw D.B., he thought that D.B. was
dead, but when D.B. realized that the police were there, he started crying and asking for
help. Based on his prior experience with shooting victims, Walden “didn’t think [D.B.]
was going to make it.” After Woody got D.B.’s name, Anderson—who did not testify—
asked D.B. if he knew who shot him. Woody testified that D.B. said “it was Raheem
Dorsey,” and Walden testified that D.B. responded, “Raheem and Dorsey.” Walden and
Woody both initially thought that “Raheem Dorsey” was one person. Woody went to his
police car to look up “Raheem Dorsey” on his computer, but did not get any hits. Woody
told D.B. and Anderson that “there is no Raheem Dorsey[, and t]hat’s when [D.B.] says it
was Raheem and Dorsey.” At that point, Walden and Woody realized that they were
looking for two shooters, not one.
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{¶ 20} Woody also testified that he asked D.B. where the shooting happened
because the officers could not determine the location of the shooting. According to
Woody, D.B. responded that “Raheem set me up; it was a drug deal gone bad, and he said
Dorsey was in the bushes waiting for me.” Although D.B. did not mention meeting up
with females when officers spoke to him before he was taken to the hospital, Woody said
that he did not always get all pertinent information from shooting victims who were in
the “throws [sic] of death” because officers “don’t ask certain things or [victims] might
just leave stuff out. Sometimes they’re so scared, they’re just giving a little bit.” He
agreed with the prosecutor that officers speak to shooting victims who survive at a later
date, and that victims sometimes give a “fuller statement.”
{¶ 21} The officers did not find any weapons on D.B. or in the area where he was
lying. Nor were they able to find any spent bullets or casings in the yard where they
found D.B. Walden said that several of the houses in the area were abandoned, the grass
in the yard was overgrown, and there were a lot of bushes and shrubs, which made
looking for casings “pretty hard,” and that casings are “pretty small to locate even in the
best of conditions.” Woody agreed that there was nothing unusual about the officers
being unable to find casings because of the overgrown grass and shrubs and “[b]ecause
they’re so hard to see anyways * * *.”
{¶ 22} Walden could not recall if there were any streetlights in the area where
D.B. was found, but Woody testified that he knew that the alley behind the house where
D.B. was found—which he presumed was the direction that D.B. had run from—did not
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have any streetlights. Woody also said that it was difficult to see much of D.B. when the
officers found him because of the overgrown grass and because it was “really dark” in the
area where they found him.
{¶ 23} Walden did not see any bullet holes in the house that D.B. was found next
to, but agreed with the prosecutor that there might not be bullet holes in a house if
someone is shot in the neck. Officers found one of D.B.’s shoes in the backyard of the
house that D.B. was found beside, on the side of the fence opposite where D.B. landed.
D.B. did not tell officers how many times that he was shot at, but said that “he was being
shot at by both of the suspects that he named[,]” which Walden interpreted as meaning
that D.B. had been shot at multiple times.
{¶ 24} Marchyok was the detective who showed D.B. the photo array related to
Belmon. During Dorsey’s cross-examination, Marchyok testified that he sometimes used
a single photograph to identify suspects when the suspect was a “known person.” For
example, if a victim said the perpetrator was his neighbor, but did not know the
neighbor’s name, Marchyok “might look that person up and print out a single photograph
to make sure I have the right person that [the victim is] talking about.” He also testified
that he did not present any other photo arrays related to this case.
{¶ 25} Following the presentation of evidence, the jury found Dorsey guilty of
complicity to commit felonious assault and the attached firearm specification. The trial
court sentenced him to a prison term of seven years for the complicity to commit
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felonious assault conviction and a prison term of three years for the firearm specification,
resulting in an aggregate prison term of ten years.
{¶ 26} Dorsey now appeals, raising four assignments of error:
1. The victim’s first time in-court identification of Appellant Dorsey
was improper, prejudicial, and a violation of Appellant Dorsey’s right to
due process and a fair trial pursuant to the Ohio and United States
Constitutions.
2. Appellant’s Conviction for Felonious Assault was Based on
Insufficient Evidence.
3. Appellant’s Conviction for Felonious Assault was Against the
Manifest Weight of Evidence.
4. The acts and omissions of trial counsel deprived Appellant of his
right to effective assistance of counsel in violation of his rights under the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution
and Article I, Section 10 and Section 16 of the Ohio Constitution.
III. Law and Analysis
A. D.B.’s identification of Dorsey was properly admitted.
{¶ 27} In his first assignment of error, Dorsey argues that the trial court committed
plain error by admitting D.B.’s identification of him from D.B.’s trial deposition because
the identification procedure the state used was unduly suggestive. The state counters that
the trial court did not commit plain error by denying Dorsey’s motion to suppress because
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there was no illegal pretrial confrontation of D.B. and, even if there was, D.B.’s
identification of Dorsey during the deposition had an origin independent of any pretrial
confrontation, so its admission was harmless.
{¶ 28} Generally, “the admission of evidence lies within the broad discretion of
the trial court, and a reviewing court should not disturb evidentiary decisions in the
absence of an abuse of discretion that has created material prejudice.” State v. Conway,
109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62, citing State v. Issa, 93 Ohio
St.3d 49, 64, 752 N.E.2d 904 (2001). However, Dorsey forfeited this error because he
failed to object to D.B.’s identification of him at the trial deposition—which was the
equivalent of D.B. identifying Dorsey at trial due to D.B.’s unavailability at the time of
Dorsey’s jury trial. Accordingly, we review the admission of D.B.’s identification
testimony only for plain error. State v. Cross, 9th Dist. Summit No. 25487, 2011-Ohio-
3250, ¶ 49 (“The law is well settled that failure to contemporaneously object [to]
testimony * * * forfeits appellate review.”); see also State v. Bethel, 110 Ohio St.3d 416,
2006-Ohio-4853, 854 N.E.2d 150, ¶ 92 (defendant’s objection to testimony after the
close of the state’s case—rather than during the witness’s testimony—forfeited
defendant’s appellate arguments related to the testimony).
{¶ 29} Plain error is an error that affects an appellant’s substantial rights. Crim.R.
52(B). An error that affects substantial rights is one that “affected the outcome of the
trial.” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Plain error should
be found “only in exceptional circumstances and only to prevent a manifest miscarriage
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of justice.” State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001), citing State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. After
reviewing the record, we cannot find that the trial court committed plain error by
admitting D.B.’s testimony identifying Dorsey as the shooter.
{¶ 30} When determining whether an eyewitness identification is admissible, the
trial court is usually faced with a situation where “a witness has been confronted with a
suspect before trial * * *.” (Emphasis added.) State v. Waddy, 63 Ohio St.3d 424, 438,
588 N.E.2d 819 (1992), superseded on other grounds by constitutional amendment. In
those cases, the trial court must first determine if the procedure used by the state to secure
the pretrial identification was “unnecessarily suggestive.” Id., citing Neil v. Biggers, 409
U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). If the court determines that the pretrial
identification was, in fact, the result of an unnecessarily suggestive confrontation, it must
then determine whether, under the totality of the circumstances, the identification was
reliable despite the unnecessarily suggestive confrontation. Id. at 439, citing Biggers at
198.
{¶ 31} In other words, the fact that an identification is unreliable—without some
predicate impermissible state action—does not automatically preclude the admission of
the identification testimony at trial. State v. Neal, 1st Dist. Hamilton No. C-140667,
2015-Ohio-4705, ¶ 29, citing Perry v. New Hampshire, 565 U.S. 228, 245-246, 132 S.Ct.
716, 181 L.Ed.2d 694 (2012); and State v. Hogan, 10th Dist. Franklin No. 11AP-644,
2012-Ohio-1421, ¶ 11. Instead, the unreliability of the identification testimony goes to
12.
its weight, not its admissibility, as the U.S. Supreme Court made apparent in Perry when
it clarified that the “due process check for reliability * * * comes into play only after the
defendant establishes improper police conduct,” and the “Constitution * * * protects a
defendant against a conviction based on evidence of questionable reliability, not by
prohibiting introduction of the evidence, but by affording the defendant means to
persuade the jury that the evidence should be discounted as unworthy of credit.”
(Emphasis added.) Perry at 237, 241.
{¶ 32} In this case, however, we are presented with a slightly different situation—
an initial identification at trial. Neither the United States Supreme Court nor the Ohio
Supreme Court has directly addressed the question of the appropriate test for the
admissibility of first-time, in-court eyewitness identification. The issue is relatively rare.
Before Perry, the few Ohio appellate courts confronted with this situation tended to find
that in-court identifications were suggestive, and allowed the identifications if they
complied with the reliability test in Biggers. See, e.g., State v. Monford, 190 Ohio
App.3d 35, 2010-Ohio-4732, 940 N.E.2d 634 (10th Dist.), ¶ 58, citing State v. Johnson,
163 Ohio App.3d 132, 2005-Ohio-4243, 836 N.E.2d 1243 (10th Dist.) (first-time, in-
court identifications are admissible if they are reliable under the totality of the
circumstances).
{¶ 33} The appellate courts that have addressed the issue since Perry have also
allowed the testimony in the absence of an unduly suggestive procedure used to procure
the in-court identification, but have used two distinct rationales to support their decisions.
13.
{¶ 34} The Fifth and Eighth Districts have continued to follow the pre-Perry
rationale that first-time, in-court identification testimony is admissible only if it meets the
test for reliability first articulated in Biggers. State v. Jenkins, 8th Dist. Cuyahoga No.
105881, 2018-Ohio-2397, ¶ 37 (“Here, it is undisputed that [the witness] did not identify
Jenkins as the shooter prior to trial. As a result, our analysis turns on whether [the
witness’s] in-court identification was reliable.”); State v. Ramirez, 5th Dist. Richland
Nos. 16CA95 and 16CA96, 2018-Ohio-595, ¶ 40. That is, these courts skip directly to
the second step of the two-step analysis outlined in Biggers, despite a lack of
unnecessarily suggestive pretrial confrontation.
{¶ 35} The First and Tenth Districts, on the other hand, have concluded that
identification testimony is admissible, and, consistent with Perry, have held that any
issues with the testimony’s reliability go to its weight, not its admissibility; these courts
have also held, consistent with Perry, that the defendant’s due process rights are
protected in cases of first-time, in-court identifications by normal trial procedures. State
v. Berry, 10th Dist. Franklin No. 18AP-9, 2019-Ohio-3902, ¶ 25, quoting United States v.
Whatley, 719 F.3d 1206, 1216 (11th Cir.2013) (“[I]n the absence of impermissibly
suggestive out-of-court identification procedures, ‘the requirements of due process are
satisfied in the ordinary protections of trial.’”); State v. Stidhum, 1st Dist. Hamilton No.
C-170319, 2018-Ohio-4616, ¶ 38, citing Perry at 238-239, 245-246 (“If there is no
showing that the police employed an unduly suggestive and unnecessary procedure to
obtain the identification, then the unreliability of the identification alone will not preclude
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its admission at trial. * * * Instead, such unreliability should be exposed through the
rigors of cross-examination at trial and the protections built into the adversary system,
such as the right to the effective assistance of counsel, the right to confront the witness,
and the rules of evidence.”). Indeed, it appears that the majority of jurisdictions
throughout the country have adopted this approach to the admissibility of first-time, in-
court identifications following the decision in Perry. See Garner v. People, 436 P.3d
1107, ¶ 39-61 (Col.2019) (collecting federal and state cases regarding the treatment of
first-time, in-court eyewitness identification).
{¶ 36} We believe that the approach of the First and Tenth Districts is the one that
is better aligned with the case law in the wake of the Supreme Court’s decision in Perry.
This is particularly true considering the Perry court’s observation, in the context of the
pretrial identification in that case involving an unnecessarily suggestive confrontation
that was not orchestrated by the police, that
[a] primary aim of excluding identification evidence obtained under
unnecessarily suggestive circumstances * * * is to deter law enforcement
use of improper lineups, showups, and photo arrays in the first place. * * *
Alerted to the prospect that identification evidence improperly obtained
may be excluded, * * * police officers will “guard against unnecessarily
suggestive procedures.” [Manson v. Brathwaite, 432 U.S. 98, 112, 97 S.Ct.
2243, 53 L.Ed.2d 140 (1977)]. This deterrence rationale is inapposite in
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cases, like Perry’s, in which the police engaged in no improper conduct.
(Emphasis added.)
Perry at 241-242. The Perry court also maintained that
the potential unreliability of a type of evidence does not alone render its
introduction at the defendant’s trial fundamentally unfair. * * * The
fallibility of eyewitness evidence does not, without the taint of improper
state conduct, warrant a due process rule requiring a trial court to screen
such evidence for reliability before allowing the jury to assess its
creditworthiness.
Id. at 245. The court reached this conclusion “in large part” because “the jury, not the
judge, traditionally determines the reliability of evidence.” Id. Importantly, “[j]uries are
not so susceptible that they cannot measure intelligently the weight of identification
testimony that has some questionable feature.” Brathwaite at 116.
{¶ 37} Turning to D.B.’s first-time, in-court identification of Dorsey as the shooter
in this case, although there is some element of suggestion involved in every in-court
identification, Perry at 244, the question that triggers the reliability review under Biggers
is not whether the procedure the state used to obtain the identification involved some
suggestion, but whether the procedure was unnecessarily suggestive. State v. White, 6th
Dist. Lucas No. L-06-1363, 2008-Ohio-2990, ¶ 81, citing State v. Blakely, 6th Dist. Lucas
No. L-03-1275, 2006-Ohio-185, ¶ 17; and State v. Harris, 2d Dist. Montgomery No.
19796, 2004-Ohio-3570, ¶ 19 (“Where it is determined that the identification procedure
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was not unduly suggestive, no further consideration into reliability is required.”). Here,
we do not see any unnecessarily suggestive elements that trigger a reliability review.
{¶ 38} It is undisputed that the prosecutor used Dorsey’s mugshot for purposes of
identification, and that she only showed D.B. one photograph when she asked him to
identify the shooter. Although using a single photograph for identification can be
unnecessarily suggestive, the impact is lessened when the photograph is used to confirm
the identity of a person the witness already knows. See, e.g., State v. Huff, 145 Ohio
App.3d 555, 564, 763 N.E.2d 695 (1st Dist.2001). Here, D.B. testified that he knew
Dorsey through Facebook, which is certainly different from knowing another person “in
real life,” but this goes to the weight of D.B.’s identification, not its admissibility.
{¶ 39} Additionally, as the trial court recognized, Dorsey was not confined in jail
and could have attended D.B.’s deposition but, for unknown reasons, he did not. Given
that Dorsey was not present for D.B. to identify in person, the state had no option but to
use what it had at its disposal—i.e., the mugshot—to allow D.B. to make his
identification. After he did so, Dorsey’s and Belmon’s attorneys thoroughly cross-
examined him regarding the circumstances of the shooting and his ability to see the
shooters, with Dorsey’s counsel focusing on the elements that weakened the reliability of
his identification—such as darkness, D.B.’s inability to provide a physical description of
“Jeromain Dorsey,” and D.B.’s acquaintance with Dorsey through Facebook, but not in
person. Based on all of this information, we cannot say that any plain error occurred.
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{¶ 40} In support of his assignment of error, Dorsey urges us to adopt the
procedure in State v. Dickson, 141 A.3d 810 (Conn.2016), a Connecticut Supreme Court
case in which the court adopted a judicial prescreening process for all cases in which the
state anticipates that a witness will identify the defendant for the first time in court. We
decline to do so.
{¶ 41} Connecticut is one of only two jurisdictions that uses a judicial
prescreening process for first-time, in-court eyewitness identifications.2 See Garner, 436
P.3d 1107, at ¶ 39-61. And, based on the U.S. Supreme Court’s reiteration in Perry that
“[a] primary aim of excluding identification evidence obtained under unnecessarily
suggestive circumstances * * * is to deter law enforcement use of improper lineups,
showups, and photo arrays in the first place * * *” and that “[t]he Constitution * * *
protects a defendant against a conviction based on evidence of questionable reliability,
not by prohibiting introduction of the evidence, but by affording the defendant means to
persuade the jury that the evidence should be discounted as unworthy of credit”—
combined with the Perry court’s flat-out rejection of a judicial prescreening process for
eyewitness testimony that did not involve suggestive pretrial circumstances created by
law enforcement—it is unlikely that the Supreme Court would approve of a judicial
prescreening process like the one used in Connecticut for first-time, in-court
identifications. Perry, 565 U.S. at 237, 241, 245.
2
The other jurisdiction currently using a judicial prescreening process is Massachusetts.
See Commonwealth v. Crayton, 21 N.E.3d 157, 169-170 (Mass.2014).
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{¶ 42} Because we find that due process does not require the judicial prescreening
procedure in Dickson, we decline to adopt such a procedure for all cases of first-time, in-
court identifications. And, we are not the first court in Ohio to refuse to adopt the
screening procedure in Dickson. Stidhum, 1st Dist. Hamilton No. C-170319, 2018-Ohio-
4616, at ¶ 39, quoting Perry at 245 (“‘The fallibility of eyewitness evidence does not,
without the taint of improper state conduct, warrant a due process rule requiring a trial
court to screen such evidence for reliability before allowing the jury to assess its
creditworthiness.’”); Ramirez, 5th Dist. Richland Nos. 16CA95 and 16CA96, 2018-Ohio-
595, at ¶ 41 (rejecting, without analysis, the appellant’s request to adopt the holding in
Dickson).
{¶ 43} In sum, the trial court did not commit plain error in permitting D.B. to
identify Dorsey as the shooter, and because no judicial prescreening was necessary, we
find that Dorsey’s first assignment of error is not well-taken.
B. Dorsey’s conviction is supported by sufficient evidence.
{¶ 44} In his second assignment of error, Dorsey argues that his complicity to
commit felonious assault conviction is not supported by sufficient evidence. He contends
that D.B.’s identification of him as the shooter—which was the only evidence tying
Dorsey to the crime—cannot support the conviction because D.B.’s identification was the
result of an unnecessarily suggestive confrontation at the trial deposition. In response,
the state argues that Dorsey’s conviction is supported by sufficient evidence because
19.
D.B.’s testimony, if believed, shows that Dorsey knowingly caused or attempted to cause
physical harm to D.B. by means of a deadly weapon.
{¶ 45} In reviewing a challenge to the sufficiency of the evidence, we view the
evidence in a light most favorable to the prosecution and determine whether “any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113,
684 N.E.2d 668 (1997). In making that determination, we will not weigh the evidence or
assess the credibility of the witnesses. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-
2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support a
conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997).
{¶ 46} Dorsey’s sufficiency-of-the-evidence argument hinges on the impropriety
of D.B.’s identification of him as the shooter. But we have already determined that the
identification testimony was properly before the jury. Moreover, even if we had
determined that D.B.’s identification was inadmissible, sufficiency looks at all of the
evidence—whether properly admitted or not. State v. Brewer, 8th Dist. Cuyahoga No.
87701, 2007-Ohio-4291, ¶ 16, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-
2126, 767 N.E.2d 216, ¶ 80; and Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102
L.Ed.2d 265 (1988). When D.B.’s identification testimony is considered with the rest of
the evidence presented at trial, we cannot find that Dorsey’s conviction is unsupported by
the evidence.
20.
{¶ 47} Dorsey was convicted of complicity to commit felonious assault under R.C.
2903.11(A)(2) and 2923.03(A)(2), which requires the state to prove that the defendant
knowingly aided or abetted another in causing physical harm to a person by means of a
deadly weapon. To show that the defendant “aided or abetted another,” the state must
prove 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,” which can be inferred from the circumstances
surrounding the crime. State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001),
syllabus. “Physical harm” is “any injury, illness, or other physiological impairment,
regardless of its gravity or duration.” R.C. 2901.01(A)(3). A gun is a deadly weapon.
In re Marcus T.D., 6th Dist. Lucas No. L-02-1376, 2004-Ohio-477, ¶ 9; R.C. 2923.11(A),
(B); see also State v. Vondenberg, 61 Ohio St.2d 285, 289, 401 N.E.2d 437 (1980) (trier
of fact can draw reasonable inferences about the deadly nature of a weapon used in the
commission of a crime).
{¶ 48} The evidence presented at trial showed that D.B. was shot in the neck and
paralyzed, and that Belmon and another person worked together in some capacity that
ultimately resulted in D.B.’s injuries. The night of the shooting, one of the assailants—
Belmon—who was “like [D.B.’s] brother” arranged a meeting with D.B., either to meet
with some “females” or for a drug deal. Belmon arrived at D.B.’s address in a car driven
by someone D.B. did not know, so D.B. would not get in the car. Instead, they began
walking to their destination. While they were walking, the second assailant came up
21.
behind them. Belmon had a gun, so he pretended to protect D.B., but soon turned his gun
on D.B. as well. Both assailants started shooting at D.B., who ran. D.B. got caught on a
fence while fleeing, and the second assailant shot him in the neck. D.B. laid wedged
between the fence and the house for approximately six hours before a passerby heard him
shouting for help and called 911.
{¶ 49} Woody and Walden, the officers who found D.B., each testified that D.B.
identified “Raheem Dorsey” as the shooter when Woody asked him who had shot him.
But after Woody was unable to find a “Raheem Dorsey” in TPD’s system, D.B. clarified
that it was two men: “Raheem and Dorsey.” (Emphasis added.) Although detectives
compiled a photo array from which D.B. identified Belmon, they never attempted to have
D.B. identify Dorsey in a photo array.
{¶ 50} D.B. testified to the poor visibility conditions. It was approximately
3:00 a.m. in an area without streetlights, so it was very dark. The second shooter was
approximately 20 feet from D.B. when he began shooting. D.B. never gave police a
physical description of the second shooter, and was unable to testify to what the second
shooter was wearing, what hairstyle he had, or if he had any facial hair. Regardless, D.B.
knew that the second shooter was not wearing a hat or glasses, and specifically testified
that he saw and remembered the second shooter’s face. D.B. identified the second
shooter as “Jeromain Dorsey,” whom D.B. knew only from being Dorsey’s Facebook
friend; D.B. and Dorsey had never met in person before the shooting. D.B. identified
Dorsey as the “Jeromain Dorsey” who shot him.
22.
{¶ 51} Based on this information, we find that Dorsey’s complicity to commit
felonious assault conviction is supported by sufficient evidence. If believed, the
testimony presented at trial shows that the second shooter, who D.B. positively identified
as Dorsey, worked together with Belmon to cause physical harm—i.e., a severed spinal
cord and paralysis—to D.B. by shooting D.B. Accordingly, Dorsey’s second assignment
of error is not well-taken.
C. Dorsey’s conviction is not against the manifest weight of the evidence.
{¶ 52} In his third assignment of error, Dorsey argues that his complicity to
commit felonious assault conviction is against the manifest weight of the evidence. To
support his argument, he again relies on D.B.’s identification of him as the shooter being
inadmissible. The state responds that Dorsey’s conviction is supported by the weight of
the evidence because the jury was free to believe D.B.’s testimony, and the fact that it did
so does not render the conviction invalid.
{¶ 53} When we review a claim that a verdict is against the manifest weight of the
evidence, we weigh the evidence and all reasonable inferences, consider the credibility of
the witnesses, and determine whether the jury clearly lost its way in resolving evidentiary
conflicts so as to create such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. We
do not view the evidence in a light most favorable to the prosecution. “Instead, we sit as
a ‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of the conflicting
testimony.’” State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15,
23.
citing Thompkins at 387. Reversal on manifest weight grounds is reserved for “the
exceptional case in which the evidence weighs heavily against the conviction.”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist.1983).
{¶ 54} Although we consider the credibility of witnesses under a manifest-weight
standard, we must, nonetheless, extend special deference to the jury’s credibility
determinations, given that it is the jury that has the benefit of seeing the witnesses testify,
observing their facial expressions and body language, hearing their voice inflections, and
discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.
Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. The jury, as the finder of fact and the sole
judge of the weight of the evidence and the credibility of the witnesses, may believe or
disbelieve all, part, or none of a witness’s testimony. State v. Caudill, 6th Dist. Wood
No. WD-07-009, 2008-Ohio-1557, ¶ 62, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964).
{¶ 55} After reviewing the evidence and the credibility of the witnesses and
weighing the testimony, we are not convinced that the evidence weighs heavily against a
conviction. We cannot say that the jury lost its way or created a manifest miscarriage of
justice by believing D.B.’s testimony identifying Dorsey as the shooter, despite the issues
weighing against the reliability of his identification. We find, therefore, that Dorsey’s
conviction is not against the manifest weight of the evidence. Thus, his third assignment
of error is not well-taken.
24.
D. Dorsey received effective assistance of counsel.
{¶ 56} In his final assignment of error, Dorsey argues that his trial counsel was
ineffective because she did not call alibi witnesses, failed to object to D.B.’s
identification of Dorsey at the trial deposition, and failed to have Dorsey attend the
deposition. The state responds that trial counsel’s decision to forgo alibi witnesses was
trial strategy, counsel’s failure to object to D.B.’s identification, without more, does not
prove ineffective assistance, and Dorsey failed to show how counsel’s performance, as it
relates to securing Dorsey’s appearance at the deposition, fell below an objective
standard of reasonable representation.
{¶ 57} To prevail on a claim of ineffective assistance of counsel, the appellant
must show that counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial court cannot be relied on as having produced a just
result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Properly licensed Ohio lawyers are presumed to be competent, State v. Gondor,
112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62, and there are “countless”
ways for an attorney to provide effective assistance in a case, so “‘[j]udicial scrutiny of
counsel’s performance must be highly deferential.’” State v. Bradley, 42 Ohio St.3d 136,
142, 538 N.E.2d 373 (1989), quoting Strickland at 689.
{¶ 58} To establish ineffective assistance of counsel, the appellant must show
“(1) deficient performance of counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability
25.
that, but for counsel’s errors, the proceeding’s result would have been different.” State v.
Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204. “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” State v.
Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), quoting Strickland at 694.
{¶ 59} Counsel is “strongly presumed” to have rendered adequate assistance and
“the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” State v. Smith, 17 Ohio
St.3d 98, 100, 477 N.E.2d 1128 (1985), quoting Strickland at 694-695. Generally, trial
strategy and tactical decisions—even debatable ones—cannot form the basis of a claim of
ineffective assistance of counsel. State v. Grissom, 6th Dist. Erie No. E-08-008, 2009-
Ohio-2603, ¶ 22.
{¶ 60} Dorsey first complains that trial counsel failed to call alibi witnesses at
trial, despite filing a notice of alibi. Critically, there is no evidence in the record that
Dorsey actually had any witnesses who could support an alibi, so his “claim rests on mere
speculation and is insufficient to establish ineffective assistance.” State v. Pickens, 141
Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 202, overruled on other grounds,
State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-634, 149 N.E.3d 475. Additionally,
although the state did not present any witnesses or evidence that would have countered an
alibi defense from Dorsey, the state called Belmon’s ex-girlfriend, who testified that
Belmon asked her to fabricate an alibi for him, and offered a letter that Belmon wrote to
his ex-girlfriend that contained detailed instructions about the story he wanted her to tell
26.
his lawyer. The fact that the state had already introduced the idea of fabricated alibi
testimony could have factored into trial counsel’s decision about calling alibi witnesses,
which is precisely the type of strategic decision-making that is not subject to second-
guessing on appeal. Id. at ¶ 203. Accordingly, we find that this argument lacks merit.
{¶ 61} Dorsey next complains that his attorney was ineffective for failing to object
to D.B.’s identification testimony at the deposition. Generally speaking, not objecting to
testimony is a matter of trial strategy. State v. Holmes, 6th Dist. Lucas No. L-17-1111,
2019-Ohio-896, ¶ 95. And trial strategy cannot form the basis of an ineffective-
assistance claim. Grissom at ¶ 22.
{¶ 62} Furthermore, “[t]he failure to object to error, alone, is not enough to sustain
a claim of ineffective assistance of counsel.” State v. Holloway, 38 Ohio St.3d 239, 244,
527 N.E.2d 831 (1988). Rather, the appellant must show that (1) there was a substantial
violation of defense counsel’s essential duties to her client and (2) he was materially
prejudiced by counsel’s ineffectiveness. State v. Shaw, 6th Dist. Lucas No. L-15-1165,
2016-Ohio-7699, ¶ 19, citing Holloway at 244. This can be done by showing that a
single failure to object resulted in the admission of evidence so prejudicial that it
essentially defaulted the case to the state or by counsel “‘so consistently fail[ing] to use
objections, despite numerous and clear reasons for doing so, that counsel’s failure cannot
reasonably have been said to have been part of a trial strategy or tactical choice.’” State
v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 140, quoting
Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir.2006).
27.
{¶ 63} Here, Dorsey does not show that counsel consistently failed to object to
clearly objectionable testimony. Nor do we find that counsel’s failure to object to D.B.’s
identification of Dorsey at the deposition essentially forfeited the case. As discussed
above, D.B.’s in-court identification was not the result of an unnecessarily suggestive
confrontation and was, therefore, admissible. At trial, the jury was entitled to give the
identification testimony whatever weight it felt that the testimony merited after seeing
D.B. testify and taking into consideration the testimony’s shortcomings. Thus, counsel’s
failure to object to the identification testimony does not rise to the level of a substantial
violation of her essential duties to Dorsey or show that he was materially prejudiced by
counsel’s actions, Shaw at ¶ 19, and is insufficient to show that trial counsel provided
ineffective assistance.
{¶ 64} Finally, Dorsey argues that trial counsel was ineffective for failing to
ensure that he was present at the deposition so that D.B. could identify him in person,
which, he claims, would have resulted in his motion to suppress being granted and would
have changed the outcome of the proceedings. Initially, we note that there is nothing in
the record showing that counsel was at fault for Dorsey failing to appear at the deposition
or that she failed to make efforts to have Dorsey—who was not incarcerated—attend the
deposition. Indeed, Dorsey does not allege that counsel took or neglected to take any
specific actions that prevented him from appearing at the deposition, such as failing to
inform him of the deposition, scheduling it at a time that he was not available, or giving
him the wrong location.
28.
{¶ 65} Regarding the motion to suppress, to prevail on a claim of ineffective
assistance related to a motion to suppress, the record must support two findings: (1) a
finding that the motion would have been granted and (2) a finding of prejudice to
appellant’s case. See State v. Gott, 6th Dist. Lucas No. L-14-1066, 2015-Ohio-917, ¶ 28.
Dorsey mentions in passing that the results of the motion to suppress would have been
different if he had been present at the deposition. We disagree. Dorsey’s argument
presumes that D.B. would not have identified him if he had been physically present at the
deposition, but there is no support for that in the record. D.B. testified that he saw and
remembered the second shooter’s face and that he was familiar with Dorsey from their
friendship on Facebook. This testimony does not lead to the conclusion that D.B.’s
identification would have changed if Dorsey had been in the room, or that the outcome of
the motion to suppress would have been different if D.B. had identified Dorsey in person
instead of from a photograph.
{¶ 66} Because Dorsey has failed to show that his trial counsel’s representation of
him fell below an objective standard of reasonable representation, we find that he has
failed to prove that trial counsel provided ineffective assistance of counsel. Dorsey’s
fourth assignment of error is not well-taken.
III. Conclusion
{¶ 67} The May 15, 2019 judgment of the Lucas County Court of Common Pleas is
affirmed. Dorsey is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
29.
State v. Dorsey
C.A. No. L-19-1117
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
30.