State v. Carter , 2017 Ohio 5573 ( 2017 )

[Cite as State v. Carter, 2017-Ohio-5573.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104653
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALTON O. CARTER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-598676-A
BEFORE: Jones, J., E.A. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: June 29, 2017
ATTORNEY FOR APPELLANT
Jonathan N. Garver
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Steven McIntosh
Brett Hammond
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Alton Carter (“Carter”) appeals his assault and
kidnapping convictions, which were rendered after a jury trial. We affirm.
I. Procedural and Factual History
{¶2} On August 28, 2015, a Cuyahoga County Grand Jury charged Carter in a
five-count indictment as follows: Count 1, rape; Count 2, attempted rape; Count 3,
felonious assault; Count 4, kidnapping; and Count 5, misdemeanor assault. With the
exception of Count 5, misdemeanor assault, the counts contained notices of prior
conviction (Counts 1, 2, and 4); repeat violent offender specifications (“RVO,” Counts 1,
2, and 4); sexually violent predator specifications (Counts 1, 2, 3, and 4); and sexual
motivation specifications (Counts 3 and 4). At his arraignment, Carter was declared
indigent and a court-appointed attorney was assigned to his case.
{¶3} Defense counsel and the state engaged in pretrial proceedings, which
included the exchange of discovery. During the course of the pretrial proceedings,
Carter, pro se, filed a motion to suppress evidence and a motion for speedy trial; the trial
court never ruled on the motions and, therefore, they are deemed denied.1 The case
proceeded to a jury trial2 in May 2016, during which the following facts were adduced.
{¶4} On the evening in question, the victim, G.R., was at Tucker’s Casino, a
karaoke bar, celebrating her birthday; Carter was also at the bar, with two people, one of
whom was a former high school classmate of G.R.’s. G.R. and Carter were acquainted
1
State ex rel. Nash v. Fuerst, 8th Dist. Cuyahoga No. 99027, 2013-Ohio-592, ¶ 8.
2
The sexually violent predator specifications were tried to the bench.
with each other — they had previously met on a dating website and had had a brief,
intimate relationship. At the time of the incident giving rise to this case, they were no
longer dating, however, because the victim had ended the relationship. G.R. testified
that when she saw Carter in the bar, she approached him to say hello to him and her
former classmate and talked with them for a few minutes while she waited for a friend to
arrive. After her friend arrived, G.R. hung out with her and mingled with other people she
knew in the bar.
{¶5} The victim testified that she and her friend left the bar after closing time,
around 2:30 a.m., and Carter was leaving at the same time. She invited Carter, along
with some others, to do shots from a bottle of tequila she had in the trunk of her car;
Carter accepted the invitation. During the course of the parking lot drinking, however,
Carter appeared ready to leave — the friends he had been with had already left.
{¶6} While the group was in the parking lot, Carter closed G.R.’s trunk, not
realizing that her car keys were in there. Carter helped her get the trunk open, then
asked G.R. for a ride home and she told him no. She knew that he lived with his
grandmother, whose house was just around the corner from the bar, and thought that
Carter should walk home.
{¶7} Carter became angry, and an argument ensued, with some in the group
blaming him for the trunk incident. Carter, irate and profane, then began arguing with
the victim and her friend. Carter asked G.R. for a ride a second time, she told him no
again, which further upset him. G.R. testified that, fearful of Carter, she maced him in
the face. According to G.R., as she was in her car attempting to leave, Carter reached in
and struck her in the face.
{¶8} G.R. drove to her apartment building in Cleveland Heights; her friend
followed in her car to make sure G.R. made it home safely. When G.R. arrived in front
of her apartment building, she and her friend stopped to talk about what had transpired.
After their conversation, when G.R. attempted to restart her car, the car would not start.
Her friend called her father, who arrived and “jumped” G.R.’s car. Once the car was
running, the friend and her father left, and G.R. drove her car into the garage of her
apartment building.
{¶9} The victim testified that after she parked her car, and as she was approaching
her apartment building, Carter appeared “out of nowhere” and approached her, angry
about what had occurred earlier at Tucker’s Casino. She told him to leave and that they
would talk about it later when he was sober, but he continued to argue with her. G.R.
testified that she was right by a neighbor’s window, and she knew that neighbor tended to
be up late, so she screamed for him to call 911, and attempted to run back into the parking
garage, thinking she could escape in her car. G.R. testified that Carter grabbed her
wrist, but she was able to free herself from him and continue to the garage. The victim
testified that Carter followed her into the garage, where he choked her, digitally
penetrated her vagina, and attempted to anally rape her. She maced him again, and he
ran out of the garage, where he encountered the police who had arrived on the scene by
that time.
{¶10} The neighbor testified that he saw G.R. and an unknown man at the back
door of the apartment building and thought he saw a struggle. He then observed both of
them walking towards the garage and thereafter lost sight of them. He testified that it
did not appear that the man was pulling the victim into the garage.
{¶11} One of the responding officers, Jason Moze (“Officer Moze”), testified that
he encountered Carter, who was “calm,” but “disheveled,” with mace on his face and dirt
and cobwebs on his clothing and shoes. The officer testified that he found similar
cobwebs in the parking garage. The victim had her pants and underpants pulled down to
her ankles, and was “irate” and “screaming” that she had been raped; Carter denied raping
her, however.
{¶12} Officer Moze placed Carter in the back of his patrol car. The officer
testified that Carter was not under arrest at that time because he still needed to determine
the “full story,” and the scene was chaotic because of the apparent animosity between
G.R. and Carter. Initially, G.R. told the officer that she and Carter did not know each
other; later, however, she admitted that they did.
{¶13} G.R. went to the hospital, where a sexual assault examination was
performed on her. The sexual assault nurse examiner (“SANE”) who conducted the
examination testified at trial. The SANE testified that the victim told her that Carter
grabbed her and dragged her by her arms, while choking, and shaking her, and hitting her
head against a wall. She also told the nurse that Carter had attempted to digitally
penetrate her vagina, but she was not sure if he had been successful. The SANE
testified that she did not find any evidence of injury to G.R.’s neck or vagina. She did
observe “minor” injuries, that could have been caused by G.R.’s account of the events,
but for which the nurse was unable to render an opinion as to their cause.
{¶14} The state also presented the testimony of two forensic scientists from the
Ohio Bureau of Criminal Investigation (“BCI”). One of the scientists examined a
specimen collected by the nurse as part of the rape kit. The scientist tested the victim’s
underwear and determined that it was positive for semen. The other scientist conducted
two tests on the swabs from the victim’s underwear, and concluded, based on the results
of one of the tests, that Carter was excluded as the source of the DNA, and was unable to
reach a conclusion based on the results of the other test. Further, testing of vaginal and
bi-lateral buttock samples taken from the victim did not reveal the presence of any male
DNA.
{¶15} The other scientist testified about her conclusions regarding Carter’s “touch
DNA” on the victim. Specifically, she tested neck swabs taken from G.R. and found
that Carter’s touch DNA was present. She testified that the amount of Carter’s DNA
found on G.R.’s neck seemed a “little unlikely that it would just be from casual rubbing
up against, but, again, I can’t say for certain one way or the other.”
{¶16} Detective Thomas DeCaro from the Cleveland Heights Police Department
was assigned to investigate the case. The detective interviewed Carter, who at the time
was under arrest and in police custody at the police station. The interview video was
played for the jury at trial.
{¶17} During the interview, Carter told the detective that the victim had maced
him while they were at Tucker’s Casino, so he walked to her apartment to talk to her
about why she had done that. Carter told the detective that he arrived at her building as
she was at the door to the building; he denied waiting there for her to arrive. Carter said
that the victim mentioned wanting to get something to eat and headed back towards her
car. Carter said, “okay, then you can take me home.”
{¶18} According to Carter, he was walking around to the passenger side of the
victim’s car when the police approached and yelled “stop.” The victim then shouted “he
tried to rape me.” Carter stated that when he turned around to look at the victim, she had
her pants down. He stated that he had no idea how her pants got down. Carter told the
detective that his clothing was dirty because he had fallen at Tucker’s Casino after G.R.
had maced him.
{¶19} At the conclusion of the state’s case, the defense moved for a Crim.R. 29
judgment of acquittal as to Count 2, attempted rape and Count 3, felonious assault. The
motion was denied in toto as to the attempted rape, and it was granted in part as to the
felonious assault. Specifically, the charge of “serious physical harm” was removed from
the count, thereby making it a charge of misdemeanor assault, to which the specifications
did not apply and, therefore, were dismissed. The defense did not present any witnesses.
{¶20} After its deliberations, the jury found Carter guilty of Count 3, misdemeanor
assault and Count 4, kidnapping. The matter was referred to the adult probation
department for a presentence investigation. Prior to sentencing, Carter filed a motion to
set aside the verdict and for a Crim.R. 29 judgment of acquittal; the trial court denied the
motion. After the presentence investigation was completed, Carter was sentenced to six
years on the kidnapping conviction, to be served concurrently to a six-month sentence on
the assault conviction. He was labeled a Tier II sex offender and advised of postrelease
control.
II. Assignments of Error
{¶21} Carter now presents the following nine assignments of error for our review:
I. The trial court violated appellant’s rights under the Fifth, Sixth, and
Fourteenth Amendments of the Constitution of the United States by
allowing the state to present evidence of statements elicited from appellant
by police officers after he was accused of rape and while he was being
detained by police officers without first advising him of his constitutional
rights and obtaining a valid waiver from him.
II. The trial court committed plain error by failing to give a jury
instruction on the lesser included offense of kidnapping.
III. The trial court committed plain error by permitting the state’s forensic
scientist to speculate on whether touch DNA found on the alleged victim’s
neck supported the allegation of assault (choking/strangulation).
IV. The trial court committed prejudicial error and interfered with
appellant’s right to confront his accusers by prohibiting defense counsel
from questioning the SANE nurse about matters set forth in the victim’s
medical records.
V. The trial court committed plain error by allowing the investigating
officer to editorialize and express personal opinions while testifying about
statements made by appellant.
VI. The trial court committed prejudicial error by allowing the
investigating officer to provide hearsay testimony concerning statements
allegedly made by a barmaid at Tucker’s Casino.
VII. Appellant was denied his right to effective assistance of counsel.
VIII. The evidence was insufficient to support appellant’s conviction for
kidnapping.
IX. Appellant’s conviction for kidnapping is against the manifest weight
of the evidence.
III. Law and Analysis
Carter’s Statements while Detained
{¶22} In his first assignment of error, Carter contends that the trial court violated
his constitutional rights by allowing the state to introduce evidence of statements he made
to the police at the scene of the incident. Carter, however, did not raise this issue in the
trial court.3 It is well established that if a motion is not filed raising a particular
suppression issue, that issue is waived. See, e.g., Xenia v. Wallace, 37 Ohio St. 3d 216,
524 N.E.2d 889 (1988), paragraph one of the syllabus; State v. Mixner, 12th Dist. Warren
No. CA2001-07-074, 2002-Ohio-180, ¶ 3. Regardless of the fact that Carter waived
the issue by failing to raise it in the trial court, there is no merit to his claim. Officer
Moze, who questioned Carter at the scene, testified that at the time he questioned him he
was not under arrest; rather, his questioning was for investigative purposes so that he
could determine what had transpired. See State v. Gaston, 110 Ohio App. 3d 835, 842,
675 N.E.2d 526 (11th Dist.1996). The first assignment of error is overruled. Failure to
Instruct Jury on Abduction
{¶23} For his second assignment of error, Carter contends that the trial court erred
by not instructing the jury on abduction, a lesser included offense of kidnapping.4 Carter
did not seek the instruction at the trial court level and, therefore, has waived all errors
except plain error on this issue. State v. Majid, 8th Dist. Cuyahoga No. 96855,
3
As mentioned, Carter did file a motion to suppress, pro se, but the motion did not raise the
issue he attempts to now set forth. Further, at the time Carter filed his suppression motion, he was
represented by counsel. Although a defendant has the right to counsel or the right to act pro se, a
defendant does not have a right to “hybrid representation.” State v. Mongo, 8th Dist. Cuyahoga No.
100926, 2015-Ohio-1139, ¶ 13, citing State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, 816
N.E.2d 227, paragraph one of the syllabus, and State v. Thompson, 33 Ohio St. 3d 1, 6-7, 514 N.E.2d
407 (1987). The right to counsel and the right to act pro se “‘are independent of each other and may
not be asserted simultaneously.’” Mongo at id., quoting Martin at id. Thus, when a criminal
defendant is represented by counsel and there is no indication that defense counsel joins in the
defendant’s pro se motion or otherwise indicates a need for the relief sought by the defendant pro se,
the trial court cannot properly consider the defendant’s pro se motion. State v. Wyley, 8th Dist.
Cuyahoga No. 102899, 2016-Ohio-1118, ¶ 9.
4
See State v. Simmons, 8th Dist. Cuyahoga No. 96208, 2011-Ohio-6074, ¶ 42 (“Abduction is
a lesser included offense of kidnapping.”).
2012-Ohio-1192, ¶ 86; Crim.R. 52(B). “Plain error as to jury instructions is proven
when the outcome of the trial would have been different but for the alleged error.”
Majid at id., citing State v. Campbell, 69 Ohio St. 3d 38, 630 N.E.2d 339 (1994). Carter
contends that because he was acquitted of the rape and attempted rape charges, there was
a reasonable probability that the outcome of the trial would have been different if the jury
had been instructed on abduction, which, unlike kidnapping, does not contain a sexual
motivation element.
{¶24} Carter’s argument presupposes that the acquittal on the sex charges, but
conviction on the kidnapping charge, was inconsistent. But the kidnapping statute
“punishes certain removal or restraint done with a certain purpose and the eventual
success or failure of the goal is irrelevant.” State v. Taylor, 8th Dist. Cuyahoga No.
100315, 2014-Ohio-3134, ¶ 30; see also State v. Matthieu, 3d Dist. Mercer Nos.
10-02- 04 and 10-02-05, 2003-Ohio-3430, ¶ 17; State v. Moore, 8th Dist. Cuyahoga No.
60334, 1992 Ohio App. LEXIS 2534, 8 (May 14, 1992). Thus, the jury’s finding of not
guilty on the rape and attempted rape charges was “not in any sense a finding that there
was no intent or purpose to commit” kidnapping. Taylor at id.; see also Matthieu at id.
and Moore at id.
{¶25} As mentioned, we review the lack of instruction on abduction for plain
error. Notice of plain error “is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Phillips,
74 Ohio St. 3d 72, 83, 656 N.E.2d 643 (1995). Upon review, we do not find plain error.
The jury was instructed that in order to find Carter guilty of kidnapping, they had to find
that the sexual motivation element of the crime had been proven beyond a reasonable
doubt. By finding him guilty of kidnapping, the jury thereby found that there was a
sexual motivation element to his conduct; it is, therefore, unlikely that an abduction
without a sexual motivation instruction would have changed the outcome of the trial.
Apparently the jury believed that Carter held G.R. in the garage against her will with the
intent to commit a sexual crime, but did not believe that the sexual crime was effectuated,
which was consistent with the DNA evidence. Therefore, Carter’s second assignment of
error is overruled.
Touch DNA Testimony
{¶26} In his third assigned error, Carter contends that it was error to allow the
forensic scientist’s “speculative” testimony that the amount of Carter’s DNA on the
victim’s neck was “more consistent with a prolonged exposure or a prolonged touching
than just a casual brush up against.” We again review for plain error, because Carter did
not object to the testimony at trial.
{¶27} Evid.R. 702 governs the admission of expert testimony and provides in
relevant part as follows:
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge
or experience possessed by lay persons or dispels a misconception common
among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the
testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other
specialized information. To the extent that the testimony reports the result
of a procedure, test, or experiment, the testimony is reliable only if all of the
following apply:
(1) The theory upon which the procedure, test, or experiment
is based is objectively verifiable or is validly derived from
widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was
conducted in a way that will yield an accurate result.
{¶28} The Ohio Supreme Court has held that trial courts should “favor the
admissibility of expert testimony whenever it is relevant and the criteria of Evid.R. 702
are met.” State v. Nemeth, 82 Ohio St. 3d 202, 207, 694 N.E.2d 1332 (1998). Upon
review, the scientist’s testimony was relevant to the state’s claim that Carter choked the
victim.
{¶29} Further, it met the requirements of Evid.R.702. Carter’s contention that the
testimony was impermissible because the scientist could not testify “for certain” that the
amount of DNA equated to a choking is without merit. Expert witnesses in criminal
cases can testify in terms of possibility rather than in terms of a reasonable scientific
certainty or probability. State v. Thompson, 141 Ohio St. 3d 254, 2014-Ohio-4751, 23
N.E.3d 1096, ¶ 129. The treatment of such testimony involves an issue of sufficiency,
not admissibility; they are matters of weight for the jury. Id.
{¶30} Expert DNA evidence testimony is similarly treated. State v. Lang, 129
Ohio St. 3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 78. Thus, it has likewise been held
that questions regarding the reliability of DNA evidence go to the weight of the evidence
rather than its admissibility, and that the “trier of fact, the judge or jury, can determine
whether DNA evidence is reliable based on the expert testimony and other evidence
presented.” State v. Pierce, 64 Ohio St. 3d 490, 501, 597 N.E.2d 107 (1992).
{¶31} In light of the above, there was no error, plain or otherwise, in allowing the
forensic scientist’s touch DNA evidence testimony, and the third assignment of error is
overruled.
Confrontation of the SANE
{¶32} Carter contends in his fourth assignment of error that the trial court
impermissibly interfered with his constitutional right to confront his accusers by limiting
his questioning of the SANE. The limitation occurred when defense counsel sought to
have the nurse read a particular portion of the victim’s compiled medical records. The
state objected on the ground that counsel was asking the nurse to read from a document
that she did not create. The trial court called a sidebar, so that it could look at the
portion of the document counsel sought to have the SANE read. After conferencing
about it off the record, the court sustained the state’s objection. Defense counsel later
attempted to question the nurse on apparently the same portion of the victim’s record,
prompting the trial court to state “No. No. No, for all the reasons that I gave you at
sidebar. We still have unauthenticated material.”
{¶33} To establish error regarding the issue of excluded evidence, an appellant
must show that the substance of the excluded evidence was made known to the court by
proffer or was apparent from the context within which questions were asked. Evid.R.
103(A); Campbell v. Johnson, 87 Ohio App. 3d 543, 622 N.E.2d 717 (2d Dist.1993).
Although the issue was discussed at sidebar with the court, the sidebar conference was off
the record, there was no proffer made about what the defense sought to have the SANE
testify about, and it is not clear from the context what the testimony might have been.
Lacking a proffer in the record, we would be relegated to conjecture, which we decline to
do. Thus, Carter has waived any purported error in this regard. State v. Brooks, 44
Ohio St. 3d 185, 195, 542 N.E.2d 636 (1989).
{¶34} The fourth assignment of error is overruled.
Investigating Detective’s Personal Opinion Testimony
{¶35} Carter’s fifth assignment of error relates to testimony of the investigating
detective, Thomas DeCaro, which we review for an abuse of discretion.5 Specifically,
during Detective DeCaro’s testimony, he testified as to portions of the video recording of
his interview with Carter. The detective testified that in the beginning of the interview
Carter was “irate and upset,” but that he eventually did “calm down a little bit.” The
assistant prosecuting attorney asked the detective if Carter then cooperated with the
interview, to which the detective responded,
[t]o a point. * * * when we’re asking him questions, he was kind of like,
it’s best to say, talking around the answers, * * * we couldn’t really get a
clear answer from him. * * * When you’re taught interviewing, one of the
techniques you kind of learn is people mentally try and distance themselves
from an incident * * *.
{¶36} Defense counsel objected to the answer, and the court overruled the
objection.
{¶37} Further, in testifying about what Carter told him transpired on the night and
morning of the incident, Detective DeCaro related that Carter told him that he wanted to
talk to the victim about her macing him at the bar because that embarrassed him. The
detective testified that Carter’s account did not make sense to him, and he provided the
5
The admission or exclusion of evidence lies within the trial court’s sound discretion. State
v. Bey, 85 Ohio St. 3d 487, 489-490, 709 N.E.2d 484 (1999). Thus, we will not disturb a trial court’s
evidentiary ruling absent an abuse of discretion. Krischbaum v. Dillon, 58 Ohio St. 3d 58, 66, 567
N.E.2d 1291 (1991).
following testimony: “Let me get this straight. You get in an argument or some kind
of altercation, you get maced in the face, and your intent is to walk a mile uphill to that
person’s residence and ask them why you were maced in the face? That doesn’t seem
like a good idea, especially at four in the morning.”
{¶38} The defense objected, and the court responded that it was trying to
determine whether what the detective was testifying to was what he actually told Carter or
if he was testifying about his personal opinion of what Carter told him. Detective
DeCaro responded, “[w]e were kind of reviewing [the events] with him, and he agreed
that that was the account.” The assistant prosecuting attorney continued questioning
Detective DeCaro about what Carter told him about the incident and the detective
testified that he found it “kind of strange.” The defense objected again, and this time the
court admonished Detective DeCaro as follows: “No. No. I don’t need reactions
from the police [as] to what [Carter] said. You’re here to tell us what [Carter] said.
Stop the reactions.”
{¶39} It is true that a police officer’s opinion that an accused is being untruthful is
inadmissible. State v. Davis, 116 Ohio St. 3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 122.
For example, the following has been held improper: a detective’s testimony that the
defendant was “being very deceptive.” Id. at ¶ 123; a detective’s testimony that he “was
not getting the complete truth” from the defendant and that “there was some deception
there.” State v. Carpenter, 12th Dist. Clermont No. CA2012-06-041, 2013-Ohio-1385, ¶
23; and a detective’s personal opinion as to the truth of a defendant’s statements. State
v. Vanek, 11th Dist. Lake No. 2002-L-130, 2003-Ohio-6957, ¶ 37. The concern is the
likelihood of a jury being influenced by a police officer’s opinion regarding a witness’s
credibility. State v. Withrow, 11th Dist. Ashtabula No. 2011-A-0067, 2012-Ohio-4887,
¶ 47.
{¶40} But even though opinion testimony regarding the truthfulness of a witness is
inadmissible, a witness may give “testimony in the form of opinions or inferences * * *
which are (1) rationally based on the perception of the witness and (2) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.” Evid.R.
701. “Testimony in the form of an opinion or inference otherwise admissible is not
objectionable solely because it embraces an ultimate issue to be decided by the trier of
fact.” Evid.R. 704.
{¶41} Thus, construing Evidence Rules 701 and 704, the Ohio Supreme Court has
observed that “[t]estimony expressing an opinion on whose version is more likely to be
true would certainly aid the jury in reaching its conclusion.” State v. Crotts, 104 Ohio
St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 27. This court has held that an officer is
not vouching for a witness’ credibility by explaining the investigative procedure he or she
followed and, therefore, the testimony is “admitted for proper purposes.” State v. Vales,
8th Dist. Cuyahoga No. 81788, 2003-Ohio- 6631, ¶ 33, citing In re: Shubutidze, 8th Dist.
Cuyahoga No. 77879, 2001 Ohio App. LEXIS 996 (Mar. 8, 2001); see also State v.
Axson, 8th Dist. Cuyahoga No. 81231, 2003-Ohio-2182, ¶ 67.
{¶42} In regard to the first instance of Detective DeCaro testifying about Carter’s
level of cooperation, that was properly admitted as part of the detective’s testimony
regarding the investigative procedure he used. As mentioned, portions of the interview
the police conducted of Carter were played for the jury. The detective testified that
initially Carter was “irate and upset.” The assistant prosecuting attorney then asked if
Carter subsequently cooperated — a question not directed at determining Carter’s
credibility.
{¶43} In regard to the second instance of the detective testifying that he found
Carter’s story “strange” and that walking to G.R.’s apartment at 4:00 a.m. was “not a
good idea,” that was arguably improper opinion testimony on Carter’s credibility. But as
soon as the court determined that was, in fact, improper opinion testimony, it admonished
Detective DeCaro that his testimony was improper and, in its instructions to the jury, the
court informed the jury that they were to disregard any testimony that the court did not
allow. A presumption exists that a jury follows the instructions given to it by the trial
court. State v. Glover, 10th Dist. Franklin No. 07AP-832, 2008-Ohio-4255, ¶ 80.
{¶44} On this record, there was no abuse of discretion and Carter’s fifth
assignment of error is therefore overruled.
Investigating Detective’s Testimony about Barmaid’s Statements
{¶45} Carter’s sixth assignment of error challenges more of Detective DeCaro’s
testimony, this time as violating his right to confrontation by providing hearsay testimony
about what a barmaid at Tucker’s Casino told him. The barmaid did not testify at trial.
{¶46} Specifically, the assistant prosecuting attorney asked the detective who he
spoke to during the course of his investigation. The detective replied that, among others,
he talked to the “barmaid who was present at the time. She was actually a reluctant
witness, but I was able to get ahold of her * * * and she gave me a corroborating
account.” The defense objected, and the court overruled the objection. The detective
continued, “[s]he was * * * like I said, she wasn’t really a cooperative witness.” The
court then interrupted, saying, “[o]kay. Hang on. Stop. Let’s have a new question.”
{¶47} In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), the United States Supreme Court held that pursuant to the Confrontation Clause
of the Sixth Amendment to the United States Constitution, “[t]estimonial statements of
witnesses absent from trial [can be] admitted only where the declarant is unavailable, and
only where the defendant has had a prior opportunity to cross-examine.” Id. at 59.
However, the Confrontation Clause “does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.” Id. at fn. 9, citing
Tennessee v. Street, 471 U.S. 409, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985). For example,
“where statements are offered to explain an officer’s conduct while investigating a crime,
such statements are not hearsay.” State v. Blevins, 36 Ohio App. 3d 147, 149, 521
N.E.2d 1105 (10th Dist.1987).
{¶48} But the admission of out-of-court statements to explain police conduct in an
investigation has the potential for abuse. Id. For example, the Tenth Appellate District
warned trial courts against allowing prosecuting attorneys to use police officer testimony
to introduce unfairly prejudicial out-of-court statements, including testimony that
connects the defendant to the crime at issue:
It is well-established that, where statements are offered into evidence to
explain an officer’s conduct during the course of investigating a crime, such
statements are generally not hearsay. There are limits, however, to this
general rule because of the great potential for abuse and potential confusion
to the trier of fact. For example, a prosecutor may attempt to use a police
officer’s testimony regarding his investigative activities as a pretext to
introduce highly prejudicial out-of-court statements, while claiming the
statements are being offered merely to explain the police officer’s conduct,
rather than for their truth. Furthermore, when the statements connect the
accused with the crime charged, they should generally be excluded.
(Citations omitted.) Id. at ¶ 11.6
{¶49} Here, although the assistant prosecuting attorney did not ask Detective
DeCaro to testify as to the barmaid’s statements, the detective did so in his response.
And although the trial court initially overruled the defense’s objection, it quickly reversed
itself, realizing that the detective was giving improper hearsay testimony. But the
limited amount of hearsay testimony that Detective DeCaro did give about the barmaid —
that she gave a “corroborating account” — was not prejudicial to Carter. Specifically,
the detective never testified whose story the barmaid corroborated — the victim’s or
Carter’s — and it is not clear from the context of his testimony to whom he was
referring. Thus, on this record, his one-time reference to the barmaid’s statement was
harmless error. The sixth assignment of error is overruled.
Ineffective Assistance of Counsel Claim
{¶50} In his seventh assignment of error, Carter contends that his trial counsel was
ineffective based on his failure to: (1) request an abduction jury instruction; (2) file a
motion to suppress; (3) object to inadmissible and improper evidence; and (4) failure to
use impeachment evidence. Carter further contends that the cumulative effect of the
6
See also State v. Richcreek, 196 Ohio App. 3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 26
(6th Dist.) (“the well-worn phrase ‘not offered for the truth of the matter asserted’ is not a talismanic
incantation that opens the door to everything said outside the courtroom. For an extrajudicial
statement of this type, a secondary assessment under Evid.R. 403(A) is required. The trial court must
consider whether the risk that the jury will prejudicially misuse the content for its truth exceeds the
probative value of the statement for the nonhearsay purpose.”) (Citations omitted.)
errors deprived him of a fair trial.
{¶51} Reversal of a conviction for ineffective assistance of counsel requires a
defendant to show that (1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Defense counsel’s performance must fall below an
objective standard of reasonableness to be deficient in terms of ineffective assistance of
counsel. State v. Bradley, 42 Ohio St. 3d 136, 142, 538 N.E.2d 373 (1989). Moreover,
the defendant must show that there exists a reasonable probability that, were it not for
counsel’s errors, the results of the proceeding would have been different. State v. White,
82 Ohio St. 3d 16, 23, 693 N.E.2d 772 (1998).
{¶52} In evaluating a claim of ineffective assistance of counsel, a court must give
great deference to counsel’s performance. Strickland at 689. “A reviewing court will
strongly presume that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” State v. Pawlak, 8th
Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.
1. Failure to Request Abduction Instruction
{¶53} It is well-established that the decision of whether to request a
lesser-included offense jury instruction is deemed trial strategy. State v. Griffie, 74 Ohio
St.3d 332, 333, 658 N.E.2d 764 (1996) (“Failure to request instructions on lesser-included
offenses is a matter of trial strategy and does not establish ineffective assistance of
counsel”). Specifically, it is a recognized trial strategy to forego lesser-included
offense instructions as an election to seek acquittal rather than to invite conviction on a
lesser offense. State v. Clayton, 62 Ohio St. 2d 45, 49, 402 N.E.2d 1189 (1980) (even if
trial counsel’s strategy is questionable, tactical decisions do not amount to ineffective
assistance of counsel); see also State v. Jones, 8th Dist. Cuyahoga No. 80737,
2003-Ohio-4397, ¶ 8.
{¶54} In light of the above, trial counsel was not ineffective for failing to request
an abduction instruction.
2. Failure to File Suppression Motion
{¶55} As mentioned in addressing Carter’s first assignment of error, Carter made
statements to the police at the scene. Specifically, Officer Moze testified that when he
first encountered Carter at the scene, Carter told him that he “had nothing to do with this.”
While Carter was saying that, the victim came out and said that Carter had raped her;
Carter told him that he did not do that and he did not know why her pants were down.
The officer then questioned Carter to find what was going on, and Carter told him about
being maced and then walking to the victim’s residence to talk to her about why she had
done that. The officer testified that at that time, Carter was not under arrest, he was just
trying to “put the puzzle together.”
{¶56} Carter now contends that his counsel was ineffective for not filing a motion
to suppress his statements on the ground that he was not Mirandized prior to being
questioned. We disagree. Miranda7 warnings must be provided when a defendant is
subject to a custodial interrogation. A custodial interrogation is “questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. at 444,
7
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Here, the statements Carter now contends should
have been suppressed were in response to the officer’s questioning of him when he
arrived on the scene and was trying to determine what had happened. “General
on-the-scene questioning as to facts surrounding a crime or other general questioning of
citizens in the fact finding process is not affected by our holding.” Id. at 477. Thus,
the Miranda warnings were not required for Officer Moze’s questioning of Carter.
3. Failure to Object to Testimony
{¶57} Carter also complains that his counsel was ineffective for not objecting to
the testimony (1) of the nature of the contact that produced the touch DNA on the
victim’s neck; (2) the detective’s opinion of Carter’s account of the events; and (3) the
police officer’s testimony regarding the barmaid’s statement.
{¶58} In regard to the touch DNA testimony, as already discussed, the testimony
was relevant to the state’s claim that Carter choked the victim and it met the requirements
of Evid.R. 702; the lack of objection, therefore, was not ineffective assistance of counsel.
{¶59} In regard to the detective’s opinion testimony, the first instance, in which he
testified that Carter’s reason for why he was at the victim’s residence did not “seem like a
good idea, especially at four in the morning,” was objected to by counsel. The second
instance, when the detective testified that he found Carter’s story “strange” was improper
opinion testimony on Carter’s credibility, as we discussed above. But, despite counsel’s
lack of objection, as soon as the court determined that it was, in fact, improper opinion
testimony, it admonished Detective DeCaro that his testimony was improper. As such,
Carter’s ineffective assistance of counsel claim on this ground fails, because the court on
its own found the testimony improper and halted it.
{¶60} And, regarding the barmaid’s testimony, as we previously mentioned,
defense counsel did initially object to the testimony, and the trial court overruled the
objection. But, again, once the court realized that the testimony was improper, it quickly
reversed itself.
4. Failure to Use Impeachment Evidence
{¶61} Carter further contends that his trial attorney was ineffective because he
failed to use impeachment evidence. Specifically, Officer Moze’s encounter with Carter
at the scene was captured on the officer’s body camera. During opening statement,
Carter’s counsel told the jury that they would have the opportunity to see the video from
the camera, which captured the police’s interactions with Carter, the victim, and the
neighbor who called the police. The portion of the video relative to the neighbor was
not played, and Carter contends that it contained impeachment evidence on it, and that
counsel was ineffective for not using it. At trial, the neighbor testified that he had not
made any reports to the police concerning G.R. prior to this incident. The alleged
impeachment evidence was the neighbor allegedly telling the police that he had to call the
police on the victim before.
{¶62} Carter now contends on appeal that “[a]fter the State had rested, [his] trial
counsel indicated a desire to play Officer Moze’s body cam video to impeach [the
neighbor].” Carter contends that counsel was ineffective because he did not impeach the
neighbor during cross-examination of the neighbor. The record indicates that this
situation occurred because of a misunderstanding, and after our review, we find that it did
not constitute the ineffective assistance of counsel.
{¶63} Specifically, defense counsel indicated that he believed he and the assistant
prosecuting attorney agreed that the video from the officer’s body camera, including the
portion showing the police’s interaction with the neighbor would be played by the state
during Officer Moze’s testimony, who testified after the neighbor testified. Thus,
defense counsel believed the impeachment evidence would “be brought in intrinsically”
through the officer’s testimony. The state did not play that portion of the video,
however, when it questioned Officer Moze, and defense counsel stated that, although he
did not believe he was intentionally misled, he was “told one thing and something else
happened.”
{¶64} The assistant prosecuting attorney stated that he “thought [he] made it clear
that [the state] had an issue playing [the neighbor’s] part * * * because [the neighbor]
would testify * * * and playing that video through Officer Moze would clearly be hearsay
of a witness.” The assistant prosecuting attorney stated that he had not been trying to
mislead defense counsel or the court, and that he believed defense counsel was not trying
to mislead the court either, and the whole incident must have been a
“miscommunication.”
{¶65} On this record, counsel was not ineffective, and furthermore, the outcome of
the trial would not have been different if the neighbor had been impeached on his
testimony that he had not previously called the police regarding the victim.
5. Cumulative Effect
{¶66} In State v. DeMarco, 31 Ohio St. 3d 191, 509 N.E.2d 1256 (1987), the Ohio
Supreme Court recognized the doctrine of cumulative error. Id. at paragraph two of the
syllabus. Under this doctrine, a conviction will be reversed when the cumulative effect
of errors in a trial deprives a defendant of a fair trial even though each of the numerous
instances of trial court error does not individually constitute cause for reversal. Id. at
196-197; see also State v. Jackson, 141 Ohio St. 3d 171, 2014-Ohio-3707, 23 N.E.3d
1023, ¶ 258.
{¶67} The court has recognized that multiple errors, when aggregated, may violate
a defendant’s right to a fair trial, even when those errors are determined to be harmless
when separately considered. State v. Madrigal, 87 Ohio St. 3d 378, 397, 721 N.E.2d 52
(2000). To find cumulative error, we first must find multiple errors committed at trial,
and secondly, we must conclude that a reasonable probability exists that the outcome of
the trial would have been different but for the combination of the harmless errors. Id. at
398.
{¶68} Upon review, as discussed above, there were not multiple errors committed
at trial. Thus, the cumulative error doctrine is inapplicable. The seventh assignment of
error is overruled.
Sufficiency of Evidence: Kidnapping and Tier II Sex Offender
{¶69} In his eighth assignment of error, Carter contends that the evidence was
insufficient to support the kidnapping conviction and, thus, by extension, the Tier II sex
offender label. We disagree.
{¶70} Sufficiency of the evidence is a legal standard that tests whether the
evidence is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St. 3d
380, 386, 678 N.E.2d 541 (1997). In determining whether the evidence is legally
sufficient to support a conviction, “‘[t]he relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.’” State v.
Robinson, 124 Ohio St. 3d 76, 2009-Ohio-5937, 919 N.E.2d 190, ¶ 34, quoting State v.
Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A
verdict will not be disturbed unless, after viewing the evidence in a light most favorable
to the prosecution, it is apparent that reasonable minds could not reach the conclusion
reached by the trier of fact. State v. Treesh, 90 Ohio St. 3d 460, 484, 739 N.E.2d 749
(2001).
{¶71} In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution’s evidence is to be believed but whether, if believed, the
evidence supports the conviction. State v. Yarbrough, 95 Ohio St. 3d 227,
2002-Ohio-2126, 767 N.E.2d 216, ¶ 79-80 (evaluation of witness credibility not proper on
review for sufficiency of evidence). Further, the testimony of “one witness, if believed
by the jury, is enough to support a conviction.” State v. Strong, 10th Dist. Franklin No.
09AP-874, 2011-Ohio-1024, ¶ 42.
{¶72} Carter contends that the evidence was insufficient to support the kidnapping
conviction because the “essential element of purpose to engage in sexual activity was
insufficient as a matter of law.” Carter cites that he was acquitted of the rape and
attempted rape in support of his claim. But as mentioned, the kidnapping statute
“punishes certain removal or restraint done with a certain purpose and the eventual
success or failure of the goal is irrelevant.” Taylor, 8th Dist. Cuyahoga No. 100315,
2014-Ohio-3134, ¶ 30. Here, the state presented evidence, namely the victim’s
testimony, that Carter held her against her will in the garage and made unwelcomed
sexual advances toward her. That testimony was sufficient to support the kidnapping
charge and, therefore also the Tier II sexual offender label.
{¶73} The eighth assignment of error is overruled.
Weight of the Evidence: Kidnapping and Tier II Sex Offender
{¶74} In his final assignment of error, Carter contends that his kidnapping
conviction and Tier II sex offender label were against the manifest weight of the
evidence.
{¶75} When presented with a manifest-weight challenge, an appellate court may
not merely substitute its view for that of the trier of fact but must review the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of witnesses,
and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. Thompkins, 78 Ohio St. 3d 380 at 387, 678 N.E.2d
541, citing State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
An appellate court should reserve reversal of a conviction as being against the manifest
weight of the evidence for only the most “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Id., quoting Martin at id.
{¶76} Carter contends that the kidnaping conviction was against the manifest
weight of the evidence because G.R.’s allegation “just didn’t make sense and it was
riddled with inconsistencies and contradictions.” Although we may consider the
credibility of the witnesses in a manifest weight of the evidence challenge, “we are
guided by the presumption that the jury, or the trial court in a bench trial, ‘is best able to
view the witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.’” State v.
Cattledge, 10th Dist. Franklin No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co.,
Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984). Accordingly, we
afford great deference to the jury’s determination of witness credibility.
{¶77} After review, we decline to disturb the jury’s determination — this is not the
exceptional case in which the evidence weighs heavily against the conviction. The ninth
assignment of error is overruled.
{¶78} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR