State v. Samueal , 2023 Ohio 3322 ( 2023 )

[Cite as State v. Samueal, 2023-Ohio-3322.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220641
TRIAL NO. B-2005986
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
ARREON SAMUEAL, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: September 20, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Brian T. Goldberg, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Presiding Judge.
{¶1} Defendant-appellant Arreon Samueal was convicted by a jury of murder
and felonious assault, both with firearm specifications, and having weapons while
under disability. On appeal, Samueal contends that the court erred in failing to declare
a mistrial after an instance of alleged juror misconduct and in instructing the jury on
the credibility of expert testimony. He also challenges the evidence supporting his
convictions and argues that the aggregate sentence included in the judgment entry is
erroneous. For the reasons that follow, we remand the cause for the trial court to
correct the discrepancy in the judgment entry, but we affirm the trial court’s judgment
in all other respects.
I. Factual and Procedural Background
{¶2} On the night of November 7, 2020, Roberto Williams was shot and
killed in the parking lot of the New Generations Event Center (“Event Center”) on
Paddock Road in Hamilton County, Ohio.
{¶3} Clifford Gaither testified that he and Williams were finishing up a night
of work at the Event Center and that he was planning to drive Williams home. Gaither
testified that after locking the doors of the Event Center he noticed a white “Chevrolet
or Impala” parked next to his truck on the driver’s side. Both vehicles were pulled
straight-in, facing the building. Gaither testified that Williams was standing outside of
the truck, by its ajar passenger-side door, talking to another person. Gaither got into
his truck to wait for Williams. Gaither could not see the other person due to Williams
obstructing his view. Gaither explained that he heard Williams say, “my big brother is
getting ready to take me home,” to which the other person responded, “your big
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brother is taking you home, huh?” Gaither testified that he then heard three or four
gunshots in rapid succession.
{¶4} Gaither got out of his truck, and ran around its front end to check on
Williams. At the same time, the shooter ran around the back of the truck to get into
the white sedan. Gaither testified that it was so dark that he could not see the person’s
face, but he could see that he was shorter than Williams, had a goatee, and was wearing
a red, black, and white hooded jacket and a black skullcap.
{¶5} Gaither called 9-1-1, relayed these details to the operator, and waited for
police to arrive. Police arrived and processed the scene.
{¶6} That night, Gaither told police that he recognized the shooter’s voice,
but admitted that he could not quite place it. Gaither testified that, “It just stayed on
my mind. I just kept thinking over and over, that voice, I have heard it before.” Days
later, Gaither went back to the police and told them that the shooter’s voice was that
of his great-nephew, Samueal. Gaither testified that he was “200 percent” sure that
the voice he heard was Samueal’s.
{¶7} Police also tracked down the white Chevrolet identified at the scene that
they discovered, during the course of their investigation, was registered to Jahlen
Price. After making several attempts to speak to Price, an attorney representing Price
called police and agreed to a meeting. Price’s car was processed, and a black skullcap
was found inside.
{¶8} Price testified that he was Samueal’s childhood friend, and that Samueal
had been staying with his mother, Vicki Price. On the night of the shooting, Samueal
and Price went to Ms. Price’s apartment together. Price’s description of Samueal’s
clothing on the night of the shooting matched Gaither’s description: a red, black, and
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white jacket, and a black skullcap. Price also said Samueal was wearing black pants.
Price testified that Samueal showed him a handgun, “either a .38 or a .380” and its
bullets, while en route to Ms. Price’s apartment.
{¶9} Samueal and Price then left Ms. Price’s apartment together in Price’s
car. Price testified that, later in the evening after running a few errands, Samueal asked
Price to take him to the Event Center. Price obliged. Price testified that, upon arrival,
Samueal “[h]opped out, [and] said, I be right back.” Price waited in the car. Several
minutes later, Price heard multiple gun shots. He testified that Samueal got back into
his vehicle and said, “drive, drive, drive.” Price “got out of there as fast as [he] could.”
He testified that once they were on the highway, he saw Samueal taking bullets out of
his gun. Yet, on cross-examination, Price admitted that he told police that he had not
seen Samueal with a gun after the shooting.
{¶10} Price dropped Samueal back off at Ms. Price’s apartment, and then left.
One hour later, Price got an alert on his phone that someone had been shot in the
parking lot of the Event Center and that the suspect had fled in a white sedan. Price
testified that he immediately went to Ms. Price’s apartment and told Samueal to leave
“[b]ecause if you put two and two together, he just shot that man where we was just
at.” Price testified that when he arrived, Samueal was no longer wearing the same
clothes.
{¶11} Days later when Price met with police, he brought a plastic bag
containing several articles of clothing that, according to Ms. Price’s testimony, she
found in her laundry room. The bag contained the red, black, and white jacket, a shirt,
black pants, and a pair of shoes.
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{¶12} Samueal was identified as the source of the major DNA profile obtained
from the skullcap, t-shirt, and black pants, but was excluded as the source of the major
DNA profile obtained from the jacket. No blood was found on any of the clothing, but
gunshot residue was found on the sleeves of the red, white, and black jacket.
Additionally, Samueal’s fingerprints were identified inside the vehicle, and his
cellphone records placed him in the area at the time the shooting occurred.
{¶13} The state also offered evidence of the projectiles found at the scene and
in Williams’s hip. Kelsey Cramer, Firearm Toolmark Examiner for the Ohio Bureau of
Criminal Identification and Investigation testified that the projectile found at the
scene matched the projectile found in Williams’s hip. Cramer testified that both
projectiles were fired from the same weapon and were consistent with a .38-caliber
weapon, though she admitted that there was a “very long list” of other possible
weapons.
{¶14} The jury found Samueal guilty on all counts: count one for murder in
violation of R.C. 2903.02(B), with firearm specifications; count two for murder in
violation of R.C. 2903.02(A), with firearm specifications; count three for felonious
assault in violation of R.C. 2903.11(A)(2), with firearm specifications; and counts four
and five for heaving weapons under disability in violation of R.C. 2923.13(A)(2) and
(3). The court merged counts two and three with count one and sentenced Samueal to
15 years to life in the Ohio Department of Corrections for murder. The court also
merged the first firearm specification with the second, and imposed a three-year
sentence, consecutive to the sentence in count one. Finally, the court merged count
five with count four, and imposed a three-year sentence for having weapons under
disability. The sentences for counts one and four were ordered to be served
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consecutively for a total aggregate sentence of 21 years to life in the Ohio Department
of Corrections.
{¶15} Samueal timely appealed.
II. Juror Misconduct
{¶16} In his first assignment of error, Samueal contends that a juror’s
comment about a defendant’s decision to testify materially affected his substantial
rights, such that a new trial should be granted. Samueal did not raise this issue below
and has therefore waived all but plain error. See State v. West, 168 Ohio St.3d 605,
2022-Ohio-1556, 200 N.E.3d 1048, ¶ 22; State v. Crawford, 1st Dist. Hamilton No. C-
070816, 2008-Ohio-5764, ¶ 49.
{¶17} To establish plain error, an appellant must demonstrate that “an error
occurred, that the error was obvious, and that there is ‘a reasonable probability that
the error resulted in prejudice,’ meaning that the error affected the outcome of the
trial.” State v. Bailey, Slip Opinion No. 2022-Ohio-4407, ¶ 8, quoting State v.
McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶ 66, quoting State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. “Notice of plain
error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Even where
plain error is identified, the court is not obligated to correct it. State v. Barnes, 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶18} To demonstrate juror misconduct necessitating a mistrial, Samueal
must show that the misconduct materially affected his substantial rights. State v.
McGlothin, 1st Dist. Hamilton No. C-060145, 2007-Ohio-4707, ¶ 16, citing State v.
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Taylor, 73 Ohio App.3d 827, 833, 598 N.E.2d 818 (4th Dist.1991). Where issues of
perceived bias arise, the juror’s impartiality must be “coupled with a lack of juror
rehabilitation or juror assurance of impartiality” to warrant his or her dismissal from
the jury. State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶
74, quoting Miller v. Webb, 385 F.3d 666, 675 (6th Cir.2004).
{¶19} In this case, Juror Number 15 came forward and alleged that Juror
Number 9 had said that “If she were on trial for murder, she would take the stand and
risk perjury versus being convicted of murder” while approximately half of the jurors
were within earshot in the jury room. Juror Number 9 told the court that she said “I
would get on the stand if it was me. Perjury versus murder is kind of extreme.” She
said one juror responded by saying “the best thing is going to be to sit there and say
nothing.” She assured the court that she was speaking generally and “wasn’t talking
about this case, in particular.” She also assured the court that she could remain
impartial and had not formed any opinions about the case.
{¶20} After this discussion, the state moved for Juror Number 9’s removal
based on bias. The defense opposed the removal of the juror, arguing that it was an
“off-the-cuff comment,” and that she assured the court she was not referring to this
case in particular, and indicated that she had not yet formed an opinion about the case.
Defense counsel argued that had other jurors been bothered by this comment, they
would have come forward like the other juror had.
{¶21} The court agreed with defense counsel and, relying on the Supreme
Court’s guidance in Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716,
at ¶ 74, found that Juror Number 9 was “very sincere in her concern about trying to be
impartial and fair in this case.” The court stated further that, “I do not find that she
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OHIO FIRST DISTRICT COURT OF APPEALS
has any clear or overwhelming bias. Even if she did, I find that she has been
rehabilitated and provided adequate assurances of her impartiality. I find no
indication that the jury has been tainted in any way by this comment.”
{¶22} The trial court appropriately handled the issue by discussing the
comment with the juror and receiving assurances from her that she could remain
impartial. See McGlothin, 1st Dist. Hamilton No. C-060145, 2007-Ohio-4707, at ¶ 16
(holding no abuse of discretion in failing to declare mistrial where trial court discussed
alleged impropriety with the juror and was satisfied that she could remain fair and
impartial). Moreover, the comment was not directly related to Samueal’s case, and no
other jurors expressed an issue with the comment. While Samueal contends that the
trial court erred by not conducting a full voir dire of the entire jury, he has presented
no caselaw to support this proposition. In fact, he opposed further inquiry of the issue
at the trial court.
{¶23} For these reasons, there was no error, much less an obvious error, in the
proceedings. Samueal has not demonstrated a reasonable probability that but for the
juror’s comment and the trial court’s failure to conduct a full voir dire of the entire
jury, the result of the trial would have been different. See Bailey, Slip Opinion No.
2022-Ohio-4407, at ¶ 8. The first assignment of error is overruled.
III. Jury Instructions
{¶24} In his second assignment of error, Samueal contends that the court
erred when it failed to provide a credibility instruction related to expert testimony. The
state asserts that the general credibility instruction given to the jury adequately
instructed the jury on credibility.
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{¶25} Samueal acknowledges that this issue was not raised in the trial court
and thus is also subject to plain-error review. See State v. Owens, 162 Ohio St.3d 596,
2020-Ohio-4616, 166 N.E.3d 1142, ¶ 7 (“When a defendant fails to object to the jury
instructions, she waives all but plain error.”); Crim.R. 30(A) (“On appeal, a party may
not assign as error the giving or the failure to give any instructions unless the party
objects before the jury retires to consider its verdict, stating specifically the matter
objected to and the grounds of the objection.”).
{¶26} We consider the effect of an alleged erroneous jury instruction not in
isolation, but viewed in context with the overall charge. State v. Harrison, 2015-Ohio-
1419, 31 N.E.3d 220, ¶ 71 (3d Dist.); State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772(1979), paragraph four of the syllabus.
{¶27} In Harrison, just like this case, the trial court instructed the jury only
on witness credibility generally, despite the director of a crime lab providing expert
testimony. Harrison at ¶ 68. The appellant did not object in the trial court, nor did he
articulate how the result of the trial would have been any different with the expert
instruction. Id. at ¶ 71. The appellate court held that “it was not error, let alone plain
error, for the trial court to not instruct the jury specifically concerning the credibility
of expert witnesses.” Id. The same is true here.
{¶28} In this case, the state’s final witness, Emily Weber, a Trace Evidence
Examiner at the Hamilton County Coroner’s Office, was qualified as an expert witness
and provided expert testimony on the presence of gunshot residue. The following day,
the parties presented their closing arguments, and the jury was instructed. On
credibility, the court instructed the jury as follows:
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Credibility. You, the jury, are the sole judges of the facts, the credibility
of the witnesses, and the weight of the evidence. To weigh evidence you
must consider the credibility of each person who testifies. You will apply
the tests of truthfulness which you apply in each of your daily lives.
These tests include the appearance of each witness upon the witness
stand, his or her manner of testifying, the reasonableness of his or her
testimony, the opportunity he or she had to see, hear, and to know those
things about which he or she testified, his or her accuracy of memory,
frankness, or lack of it, intelligence, interests, and bias, if any, together
with all the facts and circumstances surrounding the testimony of the
witness. Applying these tests, you will assign to the testimony of each
witness such weight as you deem proper.
You are not required to believe the testimony of any witness simply
because he or she was under oath. You may believe or disbelieve all or
any part of the testimony of any person who testified. It is your province
to determine what testimony is worthy of belief and what testimony is
not worthy of belief.
{¶29} Samueal insists that the following additional instruction should have
been given for the expert testimony:
As with other witnesses, upon you alone rests the duty of deciding what
weight should be given to the testimony of the expert. In determining
its weight, you may take into consideration his * * * skill, experience,
knowledge, veracity, familiarity with the facts of this case, and the usual
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rules for testing credibility and determining the weight to be given to
testimony.
Ohio Jury Instructions, CR Section 409.21.
{¶30} Samueal has not demonstrated a reasonable probability that but for the
trial court’s failure to provide the instruction on expert testimony, the result of the trial
would have been different. See Bailey, Slip Opinion No. 2022-Ohio-4407, at ¶ 8. On
the facts of this case, the general instruction on credibility was sufficient to guide the
jury on issues of credibility. We overrule the second assignment of error.
IV. The Evidence
{¶31} In his third assignment of error, Samueal argues that the jury’s verdict
was based on insufficient evidence and runs counter to the manifest weight of the
evidence.
{¶32} When faced with a sufficiency-of-the-evidence challenge, this court asks
“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. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295,
82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus, superseded by constitutional amendment on other
grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn.
4. The court’s role is to ask “whether the evidence against a defendant, if believed,
supports the conviction.” (Emphasis sic.) State v. Jones, 166 Ohio St.3d 85,
2021-Ohio-3311, 182 N.E.3d 1161, ¶ 16.
{¶33} A manifest-weight argument on the other hand “challenges the
believability of the evidence.” State v. Staley, 1st Dist. Hamilton Nos. C-200270,
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C-200271, and C-200272, 2021-Ohio-3086, ¶ 10. When this court reviews a challenge
to the manifest weight of the evidence, it must “review the entire record, weigh the
evidence, consider the credibility of the witnesses, and determine whether the trier of
fact clearly lost its way and created a manifest miscarriage of justice.” State v. Powell,
1st Dist. Hamilton No. C-190508, 2020-Ohio-4283, ¶ 16, citing State v. Thompkins,
78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶34} Samueal’s primary sufficiency-of-the-evidence argument is that no
witnesses saw him shoot Williams. However, the state presented a significant amount
of circumstantial evidence that was more than sufficient to establish that fact. The
Ohio Supreme Court has consistently held that “[c]ircumstantial evidence and direct
evidence inherently possess the same probative value” and “[i]n some instances
certain facts can only be established by circumstantial evidence.” Jenks at 272.
{¶35} The evidence in this case, if believed, thoroughly supports the
conviction. No contrary evidence was presented to refute Samueal’s presence at the
Event Center that evening, which was established by Gaither’s identification of his
voice. In addition to Gaither’s identification of Samueal’s voice, Gaither’s description
of the person at the scene matched the description provided by both Jahlen and Vicki
Price. While Samueal’s DNA was not found on the jacket itself, gunshot residue was
identified on the sleeves of the jacket, and Samueal’s DNA was identified on other
distinctive clothing seen on the shooter, including the black skullcap and the black
pants. Moreover, Price’s testimony established that Samueal had a firearm that night.
{¶36} Regarding the manifest weight of the evidence, Samueal argues that
even if the evidence is to be believed, the lack of eyewitnesses and the gaps in the state’s
evidence cast doubt on his convictions. He also speculates that an unrelated
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investigation at the Event Center could have motivated another individual to shoot
Williams. However, defense counsel presented that theory to the jury several times
throughout the trial—during the cross-examination of witnesses and in closing
argument. The jury was “free to accept or reject any and all of the evidence offered by
the parties * * *.” State v. Gasper, 1st Dist. Hamilton No. C-220218, 2023-Ohio-1500,
¶ 75. And while Price’s testimony had a few inconsistencies compared to the statement
he gave police, “ ‘such inconsistencies do not render defendant’s conviction against the
manifest weight or sufficiency of the evidence.’ ” Id., quoting State v. Fether, 5th Dist.
Stark No. 2011-CA-00148, 2012-Ohio-892, ¶ 44, quoting State v. Craig, 10th Dist.
Franklin No. 99AP-739, 2000 Ohio App. LEXIS 1138, 10 (Mar. 23, 2000).
{¶37} The third assignment of error is overruled.
V. The Sentence
{¶38} Finally, Samueal contends that the court erred in its judgment entry by
imposing a sentence for his murder conviction that was inconsistent with the sentence
announced at the sentencing hearing. The state concedes the error and agrees that the
judgment entry should be corrected.
{¶39} The total aggregate sentence in the sentencing entry mirrors the total
aggregate sentence pronounced in open court: 21 years to life. However, the judgment
entry does not reflect the sentence pronounced in open court for the murder
conviction. At the sentencing hearing, the court imposed 15 years to life for the murder
conviction pursuant to R.C. 2903.02(B)(1). But, the judgment entry states that the
sentence for the murder conviction is 15 years to 22 years, 6 months.
{¶40} Crim.R. 36 provides that “[c]lerical mistakes in judgments, orders, or
other parts of the record, and errors in the record arising from oversight or omission,
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may be corrected by the court at any time.” “A nunc pro tunc entry may be used to
correct a sentencing order, as long as the nunc pro tunc entry reflects what the court
actually did, and is not an attempt to modify the court’s judgment.” State v. Houston,
1st Dist. Hamilton No. C-130429, 2014-Ohio-3111, ¶ 42, citing State v. Breedlove, 46
Ohio App.3d 78, 81, 546 N.E.2d 420 (1st Dist.1988).
{¶41} Here, the record clearly demonstrates the court intended to impose the
sentence of 15 years to life for the murder conviction. The court stated that the
sentence for the murder conviction was to be served consecutively to the three-year
sentence for the firearm specification, and that the sentence for the weapons-under-
disability conviction was also to be served consecutively, totaling 21 years to life. The
aggregate term of 21 years to life provided in the judgment entry reaffirms that the
sentence for the murder conviction under count one in the judgment entry was a
clerical error.
{¶42} Thus, we sustain the fourth assignment of error, and remand the cause
for the limited purpose of correcting this error with a nunc pro tunc judgment entry.
VI. Conclusion
{¶43} In light of the foregoing analysis, we overrule the first, second, and third
assignments of error, but sustain the fourth. Accordingly, we affirm the trial court’s
judgment, but remand for the trial court to issue a nunc pro tunc judgment entry
correcting the sentencing error with regard to count one.
Judgment affirmed and cause remanded.
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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