State v. Arnold ( 2023 )

[Cite as State v. Arnold, 2023-Ohio-1639.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220253
TRIAL NO. B-1905432-B
Plaintiff-Appellee, :
:
VS.
: O P I N I O N.
MATTHEAU ARNOLD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 17, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
John D. Hill, Jr., for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} A friendship between a group of men soured before turning deadly,
leading to the murder of Ricky Jackson. Shortly thereafter, defendant-appellant
Mattheau Arnold was arrested and indicted for the murder and felonious assault of
Mr. Jackson. After a trial, the jury convicted Mr. Arnold of murder and the predicate
felonious assault count but exonerated him of several firearm-related counts—the trial
court later merged the counts for the purpose of sentencing. Mr. Arnold now appeals,
challenging his conviction as against the manifest weight of the evidence, unsupported
by sufficient evidence, internally inconsistent, and improperly infected by
prosecutorial misconduct. After reviewing these arguments and the record, however,
we are not persuaded, and we therefore overrule his assignments of error and affirm
the trial court’s judgment.
I.
{¶2} The story of Mr. Jackson’s death implicates a web of many individuals,
including his best friend Isaiah Palmer. The duo were also friends with Mickey
Arnold,1 the brother of Mr. Arnold. In early to mid-July 2019, the three friends
attended a party. At some point, Mr. Palmer left the party temporarily before
returning with Tamara Jackson, his girlfriend and Mr. Jackson’s sister.
{¶3} When the two returned in Ms. Jackson’s car, Mr. Palmer and Mickey
began arguing over a seemingly trivial matter: Mickey nursed a grievance that Mr.
Palmer had abandoned him at the party with Mr. Jackson. As Mr. Palmer stepped out
of the car upon his return, Mickey—apparently intoxicated—greeted him by picking
1 Mickey’s legal first name also happens to be Mattheau, but for clarity, he will be referred to
throughout by his nickname, “Mickey.” Defendant-appellant Mattheau Arnold will be referred to
throughout as “Mr. Arnold.”
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him up and slamming him to the ground. Mr. Palmer dusted himself off and then
returned the favor by slamming Mickey. Ms. Jackson dashed inside the house, urging
her brother to come out and break up the melee.
{¶4} When the brother and sister came out, they discovered Mr. Palmer on
top of Mickey, punching him. Mr. Jackson then joined the fray by jumping on Mr.
Palmer’s back and punching Mickey. According to Ms. Jackson, a large unnamed
individual intervened to break up the fight and scooped up Mickey. Mr. Jackson—
taking advantage of the opportunity—took a final swing at Mickey, which landed and
knocked him unconscious.
{¶5} After punching Mickey, the trio of Mr. Jackson, Ms. Jackson, and Mr.
Palmer left the party in her car. By this point, Mickey came to, and unleashed a barrage
of threatening phone calls to Mr. Jackson, exhorting him to return in order to resume
the fight. To avoid Mickey as best as they could, the three filtered out into various
houses where they could hide out and wait for tempers to cool down. They eventually
reconvened at a friend’s house to retrieve Mr. Jackson’s .45 caliber gun, apparently to
protect themselves in case matters turned violent. While continuing to receive calls
from Mickey—as he drove around searching for them—the three went to Mr. Jackson’s
mother’s house to spend the night.
{¶6} The next morning, after taking Mr. Palmer to work, Ms. Jackson drove
herself and Mr. Jackson to her apartment—the siblings lived together at the time. A
couple of hours later, Mickey knocked on the door of the apartment, demanding that
the two come outside. Mr. Jackson answered the door, with his gun in hand. After
Mickey—who was holding a revolver in his own hand—demanded that he come outside
to fight, Mr. Jackson ordered him to leave. To scare Mickey away, Mr. Jackson told
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OHIO FIRST DISTRICT COURT OF APPEALS
him that somebody standing across the street had a gun trained on him—as Mickey
glanced in that direction, Mr. Jackson quickly scrambled back into the apartment and
slammed the door.
{¶7} While Mickey continued to hound Mr. Jackson, insisting on a fight, Ms.
Jackson nudged him to do so in order to hopefully settle the matter. Eventually, it was
arranged for Mr. Jackson and Mickey to meet at a location where Ms. Jackson and Mr.
Palmer’s brother, Ty Holloway, would hold their respective guns, to keep the fight
from turning deadly. Although Mr. Holloway and Ms. Jackson showed up at the
meeting place, the two supposed combatants turned up missing. Ms. Jackson would
later testify that when she returned home, she saw her brother pull out from her
apartment complex hiding in the backseat of someone else’s car—apparently reluctant
to engage in further fisticuffs.
{¶8} Later that afternoon, Mr. Palmer returned home from work and
arranged his own fight with Mickey—a fight that actually transpired. Mr. Palmer later
told a police officer in a recorded interview that Mr. Arnold accompanied his brother
at this fight, but at trial, Mr. Palmer testified that he could not recall seeing Mr. Arnold
there (this would not be the first time that he would offer conflicting testimony
between his recorded interview versus at trial). Regardless, defense counsel concedes
that Mr. Arnold was indeed present at the fight between Mr. Palmer and Mickey.
Although all seemed to be squared away after that duel, Mickey remained dissatisfied,
and sought out Mr. Jackson again—about a month later in August 2019.
{¶9} On August 1, Mr. Palmer and Mr. Jackson left his sister’s apartment in
her car and went to Lisa Webb’s (Mr. Holloway’s mother) house—where Mr. Palmer
resided at the time. Around 10:30 that night, Mr. Palmer approached Ms. Webb to
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OHIO FIRST DISTRICT COURT OF APPEALS
report that Mickey, Mr. Arnold, and a third unnamed man were all standing in her
yard—again, at trial, he failed to recall if Mr. Arnold was among the individuals.
However, Ms. Webb and her granddaughter, Shionna, both testified that Mr. Arnold
was indeed present at her house. When Ms. Webb went out to see the commotion,
Mickey demanded that she send out Mr. Jackson so that they could have a fistfight.
When she refused, he threatened that, if Mr. Jackson did not come outside to fight,
“he was going to kill him.”
{¶10} Mickey further insisted that he would have Ms. Webb hold his revolver
to ensure a fair fight: an offer she also refused. In recalling the event later, Shionna
initially told the police that Mr. Arnold had an object in his hand with his shirt wrapped
around it that she had thought could be a gun, but she did not know for sure. Ms.
Webb recalled that Mr. Arnold was shirtless with a shirt wrapped around his hand and
had made a remark about having driven two hours to be a witness to the events at
hand—but she did not think that he had a gun. In his recorded interview, Mr. Palmer
apparently saw all three men, Mr. Arnold included, with a gun in their respective
hands, but he could not recall at trial what he saw. Upon Ms. Webb’s further insistence
that the three men leave her house, they eventually departed.
{¶11} About half an hour after this encounter, Mr. Jackson and Mr. Palmer
left to return to Ms. Jackson’s apartment. On their way over, Mr. Jackson called his
sister ahead of time to alert her. Approximately two minutes after receiving this call,
Ms. Jackson recalls hearing multiple gun shots outside: “like big gunshots and little
gunshots.” She quickly hid in her bathroom for safety and called 911. At trial, Mr.
Palmer explained that after he and Mr. Jackson pulled into the parking lot, “[t]hree
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OHIO FIRST DISTRICT COURT OF APPEALS
people ran out with guns.” Mr. Palmer said that the three started shooting at him and
Mr. Jackson, so he shot back with Mr. Jackson’s gun in self-defense.
{¶12} While Mr. Palmer identifies Mickey as one of the three shooters that
night, he could not recall if Mr. Arnold participated. Again, this conflicts with the
statement he made to the police where he identified Mr. Arnold as one of the three
participants. After the shots rang out, Mr. Palmer found his friend on the ground
bleeding with a single shot to the abdomen.
{¶13} After the shooting, Mr. Palmer rushed and knocked on the window
outside of Ms. Jackson’s apartment. With previous felonies on his record, he asked
her to take the gun and hide it in her apartment. When the police converged on the
scene, they attempted to render aid to Mr. Jackson to no avail. At the scene, the police
found four cars parked to the right of the building: a blue Toyota, a black Cadillac, a
black Saturn (Ms. Jackson’s car that Mr. Jackson and Mr. Palmer had parked), and a
yellow Dodge truck. Around the black Cadillac, the officers found six .45 casings, and
one live .45 round. After being interviewed by the police, Ms. Jackson and Mr. Palmer
initially failed to disclose Mr. Palmer’s presence at the shooting in an effort to shield
him given his prior record. The interviews with Mr. Palmer, Ms. Jackson, and other
eyewitnesses also suggested the presence of a weapon in her apartment. With her
consent, the detectives retrieved the gun, and a ballistics expert confirmed that the .45
caliber gun found in her apartment—Mr. Jackson’s gun—was the gun that shot the
bullets holding the six .45 cartridge cases found at the scene.
{¶14} The officers also found two .380 bullet casings in the bed of the Dodge
truck. The ballistics expert confirmed these two .380 casings could not have been fired
from Mr. Jackson’s gun. Additionally, the expert explained that a revolver’s cartridge
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OHIO FIRST DISTRICT COURT OF APPEALS
casings must be ejected manually, as opposed to automatically in the case of the .45.
However, the expert could not determine whether the .380 rounds came from a
revolver, such as the one that Mickey was alleged to have, or a different gun.
{¶15} Later, at the police precinct, both Ms. Jackson and Mr. Palmer provided
official statements. She informed the police that she believed that Mickey was the
shooter and responsible for her brother’s death based on her perception of the events
that had transpired prior to the shooting. During Mr. Palmer’s recorded interview,
which occurred four days after the shooting, he identified Mickey and Mr. Arnold as
the shooters who fired at him and Mr. Jackson as they tried to escape. After local
police signed arrest warrants for both Mickey and Mr. Arnold, Mickey was arrested in
California and Mr. Arnold later surrendered to authorities in California. The two were
initially scheduled for a joint trial in the death of Mr. Jackson in August 2021.
{¶16} In July 2021, however, deputies at the detention center where Mr.
Arnold and Mickey were detained intercepted two letters sent between the brothers.
In his first letter, Mr. Arnold shared his understanding that Mickey and his attorneys
sought to fabricate a story about the events leading up to Mr. Jackson’s death—Mr.
Arnold believed this scheme unwise as it would likely lead to both of their convictions.
Instead, he proposed to his brother a different timeline of the events that would place
him away from the scene at the time of the shooting.
{¶17} In his second letter, Mr. Arnold again expressed discomfort with
Mickey’s plan given his belief that all of the essential evidence produced in discovery
implicated Mickey in the murder—thus, nothing would be gained by implicating Mr.
Arnold. Although he implored Mickey to “do the right thing,” he also suggested that
the two consider letting the chips fall where they may for Mickey’s defense or allow
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OHIO FIRST DISTRICT COURT OF APPEALS
Mr. Arnold to take the fall for his brother. Ultimately, the discovery of the letters
prompted separate trials for the brothers.
{¶18} At Mr. Arnold’s trial, the prosecution provided testimony of detectives
who reported and investigated the accident, the ballistics expert, Ms. Jackson, Ms.
Webb, Shionna, and Mr. Palmer. A detective qualified in cell phone mapping
technology testified that, after reviewing the cell phone records of Mickey’s phone on
the night of Mr. Jackson’s death, Mickey had received a phone call around the same
time that Ms. Jackson called 911 and within close proximity of the murder, which
effectively placed Mickey near the scene.
{¶19} While most of the testimony offered at trial largely tracked the summary
above, the details of Mr. Palmer’s recorded police interview—where he implicated Mr.
Arnold—seemed to escape his memory at trial. Although the prosecution asked him if
he received any threats for testifying—the transcript of his police interview somehow
ended up on Facebook—or whether he was concerned about being called a “snitch,” he
disavowed any such concerns while maintaining no recollection of Mr. Arnold’s
presence at the scene. Eventually, the court granted the prosecution’s request to play
a recording of Mr. Palmer’s police interview to the jury, pursuant to Evid.R. 803(5).
{¶20} The jury ultimately convicted Mr. Arnold of felonious assault by causing
or attempting to cause harm to Mr. Jackson by means of a deadly weapon. However,
the jury did not find him guilty of the two specifications: that he (1) had a firearm while
committing the felonious assault, or (2) displayed, brandished, or indicated that he
possessed or used the firearm to facilitate the felonious assault. The jury also
convicted Mr. Arnold for felony murder for causing the death of Mr. Jackson as a
proximate result of committing felonious assault (while acquitting him of the same
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OHIO FIRST DISTRICT COURT OF APPEALS
two firearm specifications for this count). Finally, the jury acquitted Mr. Arnold of
purposely causing the death of Mr. Jackson. The court merged the felony murder and
felonious assault counts and sentenced him to an indefinite prison term of 15 years to
life. Mr. Arnold now appeals, presenting four assignments of error.
II.
{¶21} Mr. Arnold’s first and second assignments of error (challenging the
manifest weight and the sufficiency of the evidence) intertwine, so we will consider
them together for ease of analysis.
{¶22} When faced with a manifest weight of the evidence challenge, we must
consider whether the state “carried its burden of persuasion” before the trial court.
State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 26; see State v. Martin, Slip
Opinion No. 2022-Ohio-4175, ¶ 26. Unlike the burden of production, which concerns
a party’s duty to introduce enough evidence on an issue, the burden of persuasion
represents a party’s duty to convince the factfinder to view the facts in his or her favor.
Messenger at ¶ 17. Therefore, in order for us to conclude that the factfinder’s
adjudication of conflicting evidence ran counter to the manifest weight of the
evidence—which we reserve for only the most exceptional circumstances—we must
find that the factfinder disregarded or overlooked compelling evidence that weighed
against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 388, 678 N.E.2d 541(1997). We accordingly sit as a “thirteenth juror” in this respect. Id.{¶23} To determine the sufficiency of the evidence to support a criminal
conviction, we consider whether, after viewing the evidence in the light most favorable
to the state, any reasonable trier of fact could have found all the essential elements of
the offense proven beyond a reasonable doubt. State v. MacDonald, 1st Dist.
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OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). We review sufficiency determinations
de novo, State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d 816, ¶ 15,
and we must not weigh the evidence. MacDonald at ¶ 12. When the evidence is
subject to more than one possible interpretation, we must adopt the interpretation
consistent with the trial court’s judgment. In re J.C., 1st Dist. Hamilton No. C-180493,
2019-Ohio-4027, ¶ 20.
{¶24} Mr. Arnold claims that the prosecution failed to present any evidence
that he ever had a gun in his hand at the scene where Mr. Jackson died. At most, he
portrays himself as an unwitting bystander rather than an actual participant in the
murder. At trial, the prosecution primarily relied on Mr. Palmer’s testimony—the only
individual who witnessed the shooting—but his lack of memory on the stand led to
him testifying that he did not see, or did not remember seeing, Mr. Arnold with a gun
in his hand (much less shooting at him and Mr. Jackson). Without any inculpatory
evidence, Mr. Arnold insists that the jury had no basis upon which to convict him of
causing physical harm by means of a deadly weapon.
{¶25} The state responds, however, that Mr. Arnold was convicted of felony
murder under a theory of complicity: “To prove complicity by aiding and abetting
pursuant to R.C. 2923.03(A)(2), the prosecution must show ‘the defendant supported,
assisted, encouraged, cooperated with, advised, or incited the principal in the
commission of the crime, and that the defendant shared the criminal intent of the
principal.’ ” State v. Maynard, 10th Dist. Franklin No. 11AP-697, 2012-Ohio-2946, ¶
32, quoting State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. And
while aiding and abetting can be established by overt acts of assistance, “the mere
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OHIO FIRST DISTRICT COURT OF APPEALS
presence of an accused at the scene of a crime is not sufficient to prove, in and of itself,
that the accused was an aider and abettor.” Id., quoting State v. McWhorter, 10th
Dist. Franklin No. 08AP-263, 2003-Ohio-6225, ¶ 18.
{¶26} Mr. Arnold’s conviction is premised upon causing or attempting to
cause physical harm to another “by means of a deadly weapon or dangerous
ordnance.” R.C. 2903.11(A)(2). However, the jury also found that he did not have a
firearm while committing the aforementioned offense. This almost certainly means
that the jury convicted him under an accomplice theory: that he aided and abetted
Mickey, who caused harm to Mr. Jackson by means of a deadly weapon.
{¶27} For the most part, the state presented circumstantial evidence that tied
Mr. Arnold to the murder, including his presence at the fight between Mr. Palmer and
Mickey a month prior, his presence at Ms. Webb’s house possibly with a weapon—
where Mickey threatened to kill Mr. Jackson—testimony that Mr. Arnold left with
Mickey after the confrontation at Ms. Webb’s house, Mickey’s phone located within
the proximity of the murder, and Mr. Palmer confirming at trial that Mickey shot at
him and Mr. Jackson alongside two other individuals. All of this indicates that Mr.
Arnold was not simply an innocent bystander. However, the main piece of evidence
implicating him in the murder is Mr. Palmer’s recorded statement to the police.
{¶28} The transcript of that interview reveals the following concerning the
shooting:
Detective: Did [the assailants] come out of a car? Did they –
Mr. Palmer: They was in the woods. They was already hiding. They was
already there.
Detective: Okay.
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OHIO FIRST DISTRICT COURT OF APPEALS
Mr. Palmer: Was already there.
Detective: And there were how many of them?
Mr. Palmer: Three
Detective: Three. And Rick – Mickey was one of them.
Mr. Palmer: Um-hmm.
Detective: Right. Do you know the other two?
Mr. Palmer: [Mr. Arnold]2.
Detective: Okay.
Mr. Palmer: And I don’t know the other guy.
Detective: Okay. That’s good. So you were familiar with, obviously,
Mickey, because you fought him.
Mr. Palmer: Yeah.
Detective: You’re familiar with [Mr. Arnold]. Is he related in some
way?
Mr. Palmer: Yes. That’s his brother.
***
Detective: There’s no doubt in your mind that this was Mickey –
Mr. Palmer: Yeah.
Detective: -- [Mr. Arnold] –
Mr. Palmer: For sure.
Detective – and this other fellow.
Mr. Palmer: For sure, for sure.
2 During the interview, the witness refers to Mr. Arnold by his alias.
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OHIO FIRST DISTRICT COURT OF APPEALS
Detective: You’re positive about that.
Mr. Palmer: I’m positive.
Detective: All right.
Mr. Palmer: Absolutely positive. No doubt about it.
{¶29} During trial, the state sought admission of this prior statement under
Evid.R. 803(5). See State v. Pitts, 9th Dist. Medina No. 17CA0060-M, 2018-Ohio-
3216, ¶ 23, quoting Evid.R. 803(5), and State v. Rutkowski, 9th Dist. Lorain No.
94CA005831, 1996 Ohio App. LEXIS 2273, *12 (May 31, 1995) (“Evid.R. 803(5)
permits recorded recollections to be read into evidence under certain circumstances.
For the statement to come in as substantive evidence, the testimony of the witness
must establish that: ‘(1) the witness does not have a present recollection of the events
in question; (2) the recorded recollection was made at a time when the events were
fresh in the witness’s memory; (3) the recorded recollection was made or adopted by
the witness; and (4) the recorded recollection correctly reflects the prior knowledge of
the witness.’ * * * The rule prohibits the admission of the recorded statement as an
exhibit ‘unless offered by an adverse party.’ ”). The defense does not challenge the
admissibility of the prior statement on appeal, so we must conclude that the jury
properly considered it.
{¶30} It appears that the jury chose to consider Mr. Palmer’s prior interview,
taken just a few days after the incident, and believe that account rather than his
amnesia on the stand. And the jury was well within its rights to credit the recorded
police interview to support the conviction. See State v. Abduleh, 10th Dist. Franklin
No. 20AP-473, 2021-Ohio-4495, ¶ 27, 29 (where declarant could not remember what
happened during an argument with the defendant, “the trial court could reasonably
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OHIO FIRST DISTRICT COURT OF APPEALS
conclude that the recorded police interview reflected [Declarant]’s prior knowledge of
the incident correctly. * * * [Declarant]’s statements in the recorded interview * * *
provided the trial court with clear and convincing evidence that [defendant] had
committed the offenses charged in the indictment.”). And “eyewitness identification
testimony alone is sufficient to support a conviction—even where discrepancies exist—
so long as a reasonable juror could find the eyewitness testimony to be credible.” State
v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 37. According to this
statement, Mr. Arnold actively assisted in the shooting in a manner sufficient to
establish complicity.
{¶31} The circumstantial evidence surveyed above, combined with Mr.
Palmer’s unequivocal pretrial statement, confirms that the jury had sufficient evidence
upon which it could convict Mr. Arnold on a complicity theory. See MacDonald, 1st
Dist. Hamilton No. C-180310, 2019-Ohio-3595, at ¶ 12, quoting Martin, 20 Ohio
App.3d at 175, 485 N.E.2d 717. Nor can we say that the conviction is against the
manifest weight of the evidence in light of the record at hand. To be sure, this was not
an airtight case, but the evidentiary foundation marshalled by the state convinces us
that no manifest injustice occurred by virtue of the jury’s verdict. Therefore, we
overrule Mr. Arnold’s first and second assignments of error.
III.
{¶32} Mr. Arnold’s third assignment of error challenges alleged inconsistency
in the jury verdicts. In this respect, he emphasizes that the acquittals for the firearm
specifications cannot be reconciled with the guilty finding of felony murder, which
legally required him to have caused physical harm by means of a deadly weapon.
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{¶33} But again, the jury was instructed on accomplice liability, and could
have convicted him as an accomplice to Mickey’s crime. While mere presence at the
scene may have been insufficient to prove accomplice liability, see Maynard, 10th Dist.
Franklin No. 11AP-697, 2012-Ohio-2946, at ¶ 32, quoting Johnson, 93 Ohio St.3d 240,
754 N.E.2d 796, at syllabus, an accomplice can be found guilty of felonious assault
pursuant to R.C. 2903.11(A)(2), even without being convicted of a gun specification, if
the principal was responsible for using or discharging a weapon, and the accomplice
aided and abetted the principal in their crime. See State v. Foster, 8th Dist. Cuyahoga
Nos. 56336 and 56393, 1989 Ohio App. LEXIS 4973, *9 (Nov. 30, 1989) (“[E]ven
accepting [defendant accomplice’s] characterization of his role in the crime as a
‘physically unarmed driver,’ [defendant accomplice] is criminally culpable to the same
degree as [principal] who actually fired the gun at [victim]. * * * In this sense,
[defendant accomplice’s] conviction under 2903.11(A)(2) is identical in degree and
quality to [principal’s] conviction under the same section.”); State v. Murray, 11th
Dist. Lake No. 2003-L-045, 2005-Ohio-1693, ¶ 36 (“[Principal] admitted to hitting
victim with a flashlight. Thus, if the jury determined that [defendant accomplice]
assisted, supported, encouraged, or cooperated with [principal], it could find
[defendant accomplice] guilty of a violation of R.C. 2903.11(A)(2).”); State v. Bradley,
8th Dist. Cuyahoga No. 108983, 2020-Ohio-3460, ¶ 41 (“The testimonial and
circumstantial evidence in the case at hand, along with the law regarding complicity,
supports a jury finding that [defendant] either shot at the [victims], or aided and
abetted the shooters * * * .”).
{¶34} Across both his trial testimony and his recorded interview, Mr. Palmer
remained consistent that Mickey shot at him and Mr. Jackson outside of the
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apartment. Therefore, even if we accept the jury’s conclusion that Mr. Arnold did not
have a gun, as long as he aided and abetted Mickey—which, based on the
circumstantial evidence presented at trial, the jury could so find—he can certainly be
convicted of felony murder without conviction for the underlying gun specification.
Therefore, his convictions were not internally inconsistent.
{¶35} Mr. Arnold features State v. Koss, 49 Ohio St.3d 213, 219, 551 N.E.2d
970 (1990), in an effort to persuade us otherwise. In Koss, the Supreme Court found
the jury’s verdict inherently inconsistent, after it found the defendant guilty of
voluntarily manslaughter, but not guilty of the gun specification where the victim died
of a gunshot wound. But Koss is factually distinct from this case because it did not
deal with a second perpetrator, so the Supreme Court had no occasion to consider
accomplice liability. Because the jury could have found Mr. Arnold guilty as an
accomplice to Mickey, it was not inconsistent to find him guilty of felony murder, but
not guilty of the accompanying gun specification. We accordingly overrule his third
assignment of error.
IV.
{¶36} Finally, Mr. Arnold argues that the prosecution committed misconduct
in two ways: by repeating insinuations of witness intimidation, and by insisting that
the jury convict him, on trial before Mickey, so that he could not later assume all
responsibility at Mickey’s trial to secure an acquittal for his brother.
{¶37} “The test for prosecutorial misconduct is whether remarks were
improper and, if so, whether they prejudicially affected substantial rights of the
accused.” State v. Nields, 93 Ohio St.3d 6, 37, 752 N.E.2d 859 (2001), citing State v.
Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “To determine whether a
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OHIO FIRST DISTRICT COURT OF APPEALS
prosecutor’s remarks at trial constituted misconduct, we must determine (1) whether
the remarks were improper, and (2) if so, whether the remarks prejudicially affected
the accused’s substantial rights. * * * It must be clear beyond reasonable doubt that,
absent the prosecutor’s comments, the jury would have found the defendant guilty.”
State v. Grimes, 1st Dist. Hamilton No. C-030922, 2005-Ohio-203, ¶ 18, citing Smith
at 14, and State v. Treesh, 90 Ohio St.3d 460, 464, 739 N.E.2d 749 (2001).
{¶38} Mr. Arnold first emphasizes that the prosecution insinuated that certain
witnesses had been intimidated and were thus hesitant to appear to testify against him,
particularly with respect to Mr. Palmer and his memory loss at trial. Because Mr.
Palmer had identified Mr. Arnold in his recorded interview, but seemed to no longer
remember critical details, it was probative to explore why his story changed. See
Grimes at ¶ 56 (“But the references to witness intimidation were not improper because
they were offered to demonstrate why the witnesses’ stories had changed, and why
some of the witnesses had not immediately come forward to the police with
information about the shooting.”). Especially since Mr. Palmer’s interview surfaced
on Facebook, the prosecution sought to understand his reluctance to corroborate his
prior statement to the police.
{¶39} Regardless, each time that the defense objected to questions that
seemed to imply witness tampering or intimidation, the trial court sustained the
objections. We see nowhere in the portions of the record identified by the defense
where anyone actually accused Mr. Arnold of any witness intimidation. Given the
limited nature of the questions asked, their connection with the change of story by a
witness, and the trial court’s sustaining of objections where potentially improper
insinuations emerged, we fail to see any prosecutorial misconduct here.
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{¶40} Second, Mr. Arnold takes issue with the following commentary during
closing statements from the prosecution:
[A]nd again, with the theory of double jeopardy, if [Mr. Arnold] is found
not guilty you cannot try him twice for the same crime. So there’s
nothing to prevent him at Mickey’s trial for [] saying that he did it. And
you can be sure that Mickey’s attorneys are not going to admit what [Mr.
Arnold’s attorneys] said today that Mickey did this. They’re never going
to admit that. They’re going to deny that he did it and use completely
different arguments, which they’re entitled to, because their job is to
represent Mickey.
{¶41} Insisting that the prosecutor sought to “inflame the passions and
prejudice of the jury,” Mr. Arnold also frames the comment as an invitation for the
jury to decide the case on matters beyond the evidentiary record. And, admittedly, we
do have concerns about the nature of this statement. However, trial counsel failed to
object to this remark, which limits our review to plain error. See State v. Ushry, 1st
Dist. Hamilton No. C-050740, 2006-Ohio-6287, ¶ 47 (“Because [defendant] did not
object to the last two remarks, we must review the alleged misconduct for plain error.
Thus, we must be convinced that [defendant] would not have been convicted but for
the alleged misconduct in order to reverse his conviction.”).
{¶42} On a plain error review, we cannot say that the nature of the remarks
was so prejudicial as to justify a new trial. See State v. Canterbury, 4th Dist. Athens
No. 13CA34, 2015-Ohio-1926, ¶ 20 (“[I]n light of the other evidence before the jury, it
is not clear that Appellant would not have been convicted in the absence of the
improper comments.”). Mickey, of course, sat at the epicenter of this trial, and some
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OHIO FIRST DISTRICT COURT OF APPEALS
aspects of the comment do interrelate to the evidentiary record. The aspects beyond
it, while troubling, are not so egregious as to warrant a new trial given the evidentiary
record described above. We accordingly overrule Mr. Arnold’s fourth assignment of
error.
* * *
{¶43} In light of the foregoing analysis, we overrule Mr. Arnold’s four
assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
WINKLER, and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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