State v. Williams , 2024 Ohio 337 ( 2024 )

[Cite as State v. Williams, 2024-Ohio-337.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112481
v. :
HAROLD WILLIAMS, III, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 1, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-654135-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristin M. Karkutt, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
SEAN C. GALLAGHER, J.:
Harold Williams III appeals his convictions stemming from two
incidents, the murder of Angelo Catala and the shooting of a convenience store
employee three days later. Williams was sentenced to an indefinite life sentence
with the possibility of parole after 27 years. For the following reasons, we affirm.
I. Facts
In late October 2020, Williams sideswiped Catala’s vehicle as
Williams attempted to back out of the parking lot of a pizzeria. Catala’s cousin
worked at the pizzeria, and Catala had come to visit him. Williams was in the car
with an acquaintance, Tammy Bostic, whom he had just met in person. They
previously knew each other only through social media. Williams had intended to
meet a friend who lived above the pizzeria, but his friend was not responding to
messages. The couple sat in the car for a while before Williams attempted to back
out of the parking spot. Both Williams and Bostic were under the influence of
cocaine, although Williams stated he also had marijuana in his possession at the
time. The incident was recorded on the pizzeria’s video surveillance cameras. After
the collision, Catala approached Williams’s vehicle.
For about 20 minutes, Williams and Catala discussed the accident
while the video recorded both Williams and Bostic walking around Williams’s car at
various times throughout the encounter. Catala’s friend was also present. He is the
named victim with respect to the felonious assault conviction arising from this
encounter. According to both Bostic and Williams, Catala was brandishing a firearm
during most of their discussion and would not let either of them leave. Bostic claims
she sat in the car the entire time and slid into the driver’s seat when Williams
stepped out a second time to review the damage to the vehicles. The video differs a
bit from her testimony. Despite Williams’s claims otherwise, there is no indication
that Catala brandished a weapon — his arms remained by his side when visible in
the surveillance footage. After Catala was shot, he pulled something from his pocket
and tossed it out of the video camera’s field of view. It is not clear what was tossed,
but Williams claims it was a semiautomatic handgun. No firearm was found at the
scene during the investigation. Williams and Bostic both testified to being in fear
for their lives by Catala’s actions despite the depiction of events from the video
played during their cross-examinations.
At one point, Catala’s cousin, who was preparing to deliver pizzas and
knew Williams, noticed the discussion. He approached, and according to him,
Williams smelled of alcohol and stated that “[y]our cousin said I hit his car, but I got
him, I’m going to give him $50 or $100 or whatever it was.” It did not appear to the
cousin that Williams was upset or under any duress. He also did not see any
firearms. He left to make his delivery but returned a short time later while the
discussion between Williams and Catala was ongoing. After the shooting, Williams
told Catala’s cousin, “He had to get it, Lou. He had to get it.”
The surveillance video from the pizzeria depicted the following scene.
Initially, most of the conversation between Catala and Williams occurred with
Williams in the driver’s seat of his vehicle and Catala standing in the open door.
About 15 minutes into the encounter, Catala placed both his hands on the roof of
Williams’s vehicle, leaning down to continue the conversation. Catala was also
smoking a cigarette, alternating it between hands as he smoked it.
After approximately 20 minutes, Catala moved his vehicle from next
to Williams’s, to slightly behind it. The discussion continued, and Bostic exited the
car, walking around it apparently surveying the damage. Williams stepped out of
the car, and Bostic walked to and sat in the driver’s seat. Right after that, Catala and
Williams were walking around the car appearing to survey the damage themselves.
Catala walked away from Williams. Williams immediately pulled a handgun from
his pocket and shot Catala, who was still walking away but started to turn back
toward Williams. There was no visible weapon in Catala’s possession at the time.
Williams then went after Catala’s friend, who was backing away from the shooting
(that is not depicted in the pizzeria’s surveillance footage but is visible in nearby car
lot’s surveillance video). Catala crouched in front of Williams’s vehicle. Bostic was
still in the driver’s seat. Catala stood up and checked himself, evidently to see if he
was wounded, and then he went inside the pizzeria.
Bostic exited Williams’s car at that point and looked around. She
walked across the street (evidently looking for Williams, who had run off after the
shooting). The other victim in this incident, the friend of Catala, claims Williams
chased him and fired more shots. Surveillance footage from the car lot depicts the
victim backing away from Williams with his hands in the air. When Williams walked
back to his car, Bostic turned and followed him, this time running because Williams
appeared to have fired a shot down the street.
Catala died from his wounds. The other victim, Catala’s friend, was
physically unharmed.
The convenience store shooting is relatively straightforward, and at
trial, Williams conceded that he shot at the clerks — claiming he was not in the right
state of mind after murdering Catala days earlier. That incident, occurring three
days after Catala’s murder, was also captured on surveillance cameras. That footage
captured audio. Williams entered the store and engaged in conversation with the
two employees about the shooting at the pizzeria. The employees were concerned
with the manner in which Williams asked the questions and his behavior. They
asked him to leave, and he refused. A discussion ensued. One of the employees
called 911 and was on the phone with the dispatcher relaying her information and a
description of Williams. When Williams heard that, he brandished his handgun, the
same one used to murder Catala, and threatened to rob the store. One of the
employees ran back to the office, and Williams started shooting at the other
employee, hitting her twice. She survived.
Williams was indicted for felonious assault and two counts of murder
for the killing of Catala, felonious assault for attempting to cause physical harm by
means of a deadly weapon to Catala’s friend, and for having weapons while under
disability for possession and use of the firearm, along with several associated three-
year firearm specifications. Williams was indicted for attempted murder and
felonious assault with respect to the employee he wounded, two counts each of
robbery pertaining to each victim at the convenience store, and for having weapons
while under disability. Williams filed a pretrial motion seeking separate trials for
the charges arising in the two incidents, but the trial court denied the motion.
Williams then elected to waive his right to a jury trial on the charges arising from
the convenience store shooting, in effect bifurcating the trial.
Williams was convicted of all charges. The multiple offenses
committed against Catala merged into the murder conviction, and the offenses
committed against the wounded convenience store employee also merged into one
count of attempted murder. Williams was sentenced to a term of 15 years to life for
the murder of Catala, with all other sentences on the underlying offenses being
concurrently imposed. He was also found guilty of four, three-year firearm
specifications, resulting in a 27-years-to-life aggregate term of imprisonment.
II. Law
In this appeal, Williams advances eight assignments of error. Each
will be addressed, but where appropriate, the various arguments will be combined
and realigned for ease of reading.
a. Joinder of Offenses
In the second assignment of error, Williams claims that the trial court
erred by denying appellant’s motion for separate trials. Williams’s sole claim is that
the charges pertaining to each event arose from “totally separate incidents, that
occurred on different days” and should have been tried before separate juries.
According to Williams, he was prejudiced by a “bootstrapping effect” of introducing
evidence of both crimes at trial.
Williams also claims that his election to have the crimes arising from
the convenience store shooting tried to the bench, to in effect bifurcate the
proceedings, should not be deemed to impact his argument. Neither party has
addressed whether Williams waived any argument with respect to the denial of relief
from the joinder through waiving his right to a jury to resolve the charges relating to
the convenience store shooting. The ensuing discussion, therefore, will solely focus
on the standard as it relates to relief from joinder under Crim.R. 14 as the parties
have presented it.
“Two or more offenses may be charged in the same indictment,
information or complaint in a separate count for each offense if the offenses charged
* * * are of the same or similar character * * *.” Crim.R. 8(A). Further, the joinder
of offenses is permitted if those offenses “are based on the same act or transaction,
or are based on two or more acts or transactions connected together or constituting
parts of a common scheme or plan, or are part of a course of criminal conduct.” Id.Joinder “conserves resources by avoiding duplication inherent in multiple trials and
minimizes the possibility of incongruous results that can occur in successive trials
before different juries.” State v. Hamblin, 37 Ohio St.3d 153, 158, 524 N.E.2d 476(1988). Crim.R. 14 allows the bifurcation of counts if the defendant is prejudiced by
the joinder. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166,
¶ 49. Under Crim.R. 14, in pertinent part, “[i]f it appears that a defendant or the
state is prejudiced by a joinder of offenses or of defendants in an indictment,
information, or complaint, * * * the court shall order an election or separate trial of
counts, grant a severance of defendants, or provide such other relief as justice
requires.”
Generally, joinder is disfavored where the jury could potentially
confuse the issues and the facts essential to the elements of the distinct crimes. “To
succeed on a motion to sever, a defendant ‘must furnish the trial court with sufficient
information so that it can weigh the considerations favoring joinder against the
defendant’s right to a fair trial.’” State v. Lytle, 10th Dist. Franklin Nos. 15AP-748
and 15AP-754, 2016-Ohio-3532, ¶ 64, quoting State v. Lott, 51 Ohio St.3d 160, 163,
555 N.E.2d 293 (1990); State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288(1981), syllabus.
In Lott, the Ohio Supreme Court upheld a conviction for murder after
unrelated charges were joined at trial. It was held that the defendant has the burden
to affirmatively demonstrate prejudice from the joinder, and only then does the state
bear any burden to negate such claims. Id. at 163. The prosecutor can use two
methods to dispel the demonstrated prejudice caused by the joinder. Id. Under the
first method, the “other acts” test, the state may argue that it could have introduced
evidence of previous crimes under Evid.R. 404(B) even if the previous and current
offenses had been severed for trial. Id. Even if Evid.R. 404(B) does not apply, the
state may also demonstrate that the “evidence of each crime joined at trial is simple
and direct.” Id. at 163. The two methods under the Lott analysis are independent
of each other.
Williams does not present any argument pertaining to his burden to
demonstrate prejudice from the joinder as required under Crim.R. 14. He simply
presumes prejudice from the fact that the jury heard evidence demonstrating his
commission of the separate crimes. Williams has presented no authority to support
the existence of a presumption of prejudice. App.R. 16(A)(7); see also State v. Davis,
38 Ohio St.3d 361, 364, 528 N.E.2d 925 (1988) (Waiving a right to a jury trial
because of the possibility that a jury hears evidence of prior convictions does not
give rise to a violation of the defendant’s right to a jury trial; “A jury is believed
capable of segregating the proof on multiple charges when the evidence as to each
of the charges is uncomplicated.”). His arguments instead focus on negating the
state’s burden to demonstrate the applicability of Evid.R. 404(B) or that the
evidence of each incident is “separate and direct.” Because Williams has not
demonstrated the existence of prejudice, the burden never shifted to the state to
demonstrate that the evidence would be admissible regardless of whether separate
trials were conducted or that the evidence was simple and direct. Lott at 163.
Before addressing the state’s burden, the defendant must
demonstrate the existence of prejudice caused by the joinder of counts for trial.
Williams has not presented an argument upon which this conclusion could be
reached. Without this panel impermissibly crafting an argument on Williams’s
behalf or through the establishment of a presumption of prejudice from the jury
hearing evidence of interrelated crimes stemming from events occurring days apart,
no relief can be afforded. See State v. Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034, 19 N.E.3d 900, ¶ 19.
The second assignment of error is overruled.
b. Evidentiary Rulings
In the fourth, fifth, and seventh assignments of error, Williams claims
that (1) the trial court erred in permitting a police officer to testify about statements
made by nontestifying witnesses in violation of Ohio Rules of Evidence and the
Confrontation Clause; (2) the trial court erred by admitting the surveillance videos,
which were not properly authenticated; and (3) the trial court erred by allowing the
state to introduce “other acts” evidence under Evid.R. 404(B) to the jury in the
bifurcated proceeding.
i. Nontestifying Witnesses
At trial, one of the investigating officers interviewed Catala’s friend,
the second victim in the pizzeria shooting, immediately after the shooting. Williams
chased after and at least threatened that victim with a firearm, an event
memorialized on the surveillance video obtained from the car lot. In addition, an
officer testified to the photo-array identification of Williams by the two employees
of the convenience store. Only one of the employees testified at trial.
On this point, Williams first argues that the officer was permitted to
testify that the victim of the felonious assault during the pizzeria incident told the
officer that he was shot at, which according to Williams is a violation of the
Confrontation Clause. Williams cites two recent decisions from this court: State v.
Johnson, 8th Dist. Cuyahoga No. 110942, 2023-Ohio-445, and State v. Smith, 8th
Dist. Cuyahoga No. 111274, 2023-Ohio-603, in support of his argument.
The Confrontation Clause generally precludes the introduction of
testimonial statements at trial. Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Although the Supreme Court has not
defined what constitutes a “testimonial” statement, it has been held to apply to
“‘prior testimony at a preliminary hearing, before a grand jury, or at a former trial,
and responses to police interrogations.’” State v. Dixon, 2016-Ohio-1491,
63 N.E.3d 591, ¶ 45 (4th Dist.), quoting State v. Mills, 2d Dist. Montgomery
No. 21146, 2006-Ohio-2128, ¶ 17. There are two overriding notions to be
considered: (1) “not all those questioned by the police are witnesses and not all
‘interrogations by law enforcement officers’ * * * are subject to the Confrontation
Clause.” Michigan v. Bryant, 562 U.S. 344, 355, 131 S.Ct. 1143 179 L.Ed.2d 93(2011), quoting Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224(2006); and (2), “[a] 911 call * * * and at least the initial interrogation conducted in
connection with a 911 call, is ordinarily not designed primarily to ‘establish or prove’
some past fact, but to describe current circumstances requiring police assistance.”
Davis, 547 U.S. at 827.
Whether statements to police officers are testimonial depends on the
primary purpose of the interrogation. “[S]tatements are nontestimonial when made
in the course of police interrogation under circumstances objectively indicating that
the primary purpose of interrogation is to enable police assistance to meet an
ongoing emergency.” Davis, 547 U.S. at 822. Further, police interrogations of
witnesses and victims can be deemed nontestimonial after the initial encounter if an
ongoing emergency exists. Id. An ongoing emergency can exist after the original
threat to the victim has ceased to exist if there is a potential threat to the victim,
police, or the public, or the victim needs emergency medical services. Bryant at 376.
“[T]he Supreme Court has never defined the scope or weight of the ‘ongoing
emergency.’” Woods v. Smith, 660 Fed.Appx. 414, 428 (6th Cir.2016). The outer
bounds of what is considered an “ongoing emergency” is purposely not defined and
is instead based on a “highly context-dependent inquiry.” Bryant at 363.
Notwithstanding, any conclusion determining that there is no
ongoing emergency is not dispositive of the Confrontation Clause question.
Cleveland v. Merritt, 2016-Ohio-4693, 69 N.E.3d 102, ¶ 22 (8th Dist.). There is
another step under the primary purpose test that reviewing courts must consider.
“[I]n addition to whether there is an ongoing emergency, other relevant
considerations to the primary purpose test include the formality versus informality
of the encounter, and the statements and actions of both the declarant and the
interrogators, in light of the circumstances in which the interrogation occurs.”
(Emphasis added.) Ohio v. Clark, 576 U.S. 237, 245, 135 S.Ct. 2173, 192 L.Ed.2d
306 (2015), citing Bryant at 360.”
Neither Smith, 8th Dist. Cuyahoga No. 111274, 2023-Ohio-603, nor
Johnson, 8th Dist. Cuyahoga No. 110942, 2023-Ohio-445, followed the totality of
the black-letter law pertaining to the Confrontation Clause, and in fact, relied on the
dissent’s analysis from Merritt, which is controlling authority in this district. Smith
did not discuss Merritt, despite their factual similarity and Smith’s tacit reliance on
the dissenting viewpoint’s analysis. Merritt determined that the initial questioning
of a domestic abuse victim by an officer responding to an emergency call for help
was not testimonial despite the fact the officers determined that the scene was
secured upon their arrival through the initial questioning. See generally Merritt.
Smith, on the other hand, concluded that because the victim of abuse was separated
from the attacker, she was “safe” because emergency responders arrived, although
the victim was being treated for her injuries during the questioning. See generally
Smith. According to Smith, any and all questioning by the first officer to respond
to the emergency call was testimonial. See id.In Smith, the victim was receiving medical care from emergency
medical technicians before police officers were able to respond to the initial call for
an assault that had just occurred, with the suspect still at large. Id. The majority
made no distinction as to any differences between the first questions posed by the
responding officer (who had no information as to why he was responding) and any
later questions posed by the officer or the EMT. Id. The black-letter law is
unambiguous; “[a] 911 call * * * and at least the initial interrogation conducted in
connection with a 911 call, is ordinarily not designed primarily to ‘establish or prove’
some past fact, but to describe current circumstances requiring police assistance.”
Davis, 547 U.S. at 827, 126 S.Ct. 2266, 165 L.Ed.2d 224. Although that rule is not
entirely without exception, the law generally favors the admissibility of the
witnesses’ or victim’s initial interaction with either a police officer responding to
emergency calls for assistance or an EMT providing emergency medical treatment.
This, at the least, permits officers to obtain basic information to enable the
appropriate level of response and ensure everyone’s safety and it also recognizes that
the primary purpose of a victim’s seeking medical care for undisputed injuries is not
to memorialize formal trial testimony.
According to the Smith majority, admissibility of the victim’s initial
statements to the responding police officer was an all-or-nothing proposition. At a
minimum, however, statements made to emergency responders are considered on a
continuum. Merritt recognized that although at some point an emergency
responder could veer into investigatory questioning, statements made at different
points of the interrogation must be reviewed independently. Merritt, 2016-Ohio-
4693, 69 N.E.3d 102. Smith simply declared that the first question posed by a police
officer responding to an emergency call for assistance was testimonial because the
emergency had already ended based on the victim’s subsequent answers to the
officer’s initial questions.
There is no precedent supporting that form of analysis. On the
contrary, according to Merritt, which relied on generally accepted applications of
black-letter law, the initial interaction with police officers responding to emergency
calls for assistance are not testimonial because “‘officers called to investigate need
to know whom they are dealing with in order to assess the situation, the threat to
their own safety, and possible danger to the potential victim.’” Merritt at ¶ 24,
quoting Davis, 547 U.S. at 832, and Hiibel v. Sixth Judicial Dist. Court, 542 U.S.
177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). Thus, the initial questions of the
first officer responding to an emergency call for help are ordinarily not testimonial
when the officer is simply obtaining the information necessary to determine the
appropriate response. See id. Johnson, 8th Dist. Cuyahoga No. 110942, 2023-Ohio-
445, included the same truncated analysis that declined to apply the totality of the
analysis as required under Merritt.
Moreover, the Smith majority adopted the dissent’s analysis from
Merritt. Smith, 8th Dist. Cuyahoga No. 111274, 2002-Ohio-603. The dissent in
Merritt would have found that introducing the initial statements made to
responding officers at trial violated the Confrontation Clause because there was no
ongoing emergency. Merritt, at ¶ 41, 43-44 (Stewart, J., dissenting). That
conclusion was based on the victim’s answers to the officer’s initial questions
revealing that (1) the dispute was largely private between two individuals; (2) the
assailant was known to the victim; (3) nothing in the record indicated that the
assailant posed a threat to the public because the assailant was already detained and
there was no weapon involved; and (4) the victim was safe due to the police presence
and the separation from the aggressor. Id.Despite the fact that the majority in Merritt, 2016-Ohio-4693, 69
N.E.3d 102, rejected that narrow focus under the ongoing emergency inquiry, the
Smith majority used the same analysis, concluding that use at trial of the initial
questioning by the first responding police officer violated the Confrontation Clause
because the victim’s answers to those initial questions arguably revealed that (1) the
dispute was only between two individuals; (2) the assailant was known to the victim;
(3) nothing in the record demonstrated that the assailant posed a threat to anyone
because police officers did not ask the victim about any weapons during the initial
discussion; and (4) the victim was safe due to the arrival of the police and medical
responders. Smith at ¶ 91-92. Thus, Smith tacitly treated the dissenting analysis as
controlling over the analysis provided by the majority in Merritt.
We cannot rely on Smith or Johnson, 8th Dist. Cuyahoga No. 110942,
2023-Ohio-445. Doing so would further the precedential rift caused by Smith and
Johnson.
In this case, however, it is not clear that Williams even preserved an
objection to the officer’s testimony with respect to the pizzeria incident based on the
Confrontation Clause. This defines the scope of appellate review. When the officer
initially testified as to the victim’s statement at issue, the trial court sustained the
defense’s objection, which then prompted the state to elicit testimony regarding the
excited utterance exception to Ohio’s hearsay rule. No specific objections were
included within this record. After obtaining testimony that the victim was still under
the stress of excitement caused by the shooting, the court permitted the officer to
testify as follows: “Q. Officer Miranda, what did [the victim] tell you? A. [The
victim] stated that he was shot at.”
The state’s evidentiary rules, however, are only applicable if the
statement does not violate the Confrontation Clause: “Whenever the state seeks to
introduce hearsay into a criminal proceeding, the court must determine not only
whether the evidence fits within an exception, but also whether the introduction of
such evidence offends an accused’s right to confront witnesses against him.” State v.
Powell, 2019-Ohio-4345, 134 N.E.3d 1270, ¶ 38 (8th Dist.), citing State v. Kilbane,
8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 29; see also State v. Issa, 93 Ohio
St.3d 49, 60, 752 N.E.2d 904 (2001). The excited utterance doctrine is not an
exception to the Confrontation Clause.
“‘It is hornbook law that a defendant may not on appeal urge a new
ground for his objection.’” State v. Hernandez, 8th Dist. Cuyahoga No. 106577,
2018-Ohio-5031, ¶ 4, quoting State v. Milo, 10th Dist. Franklin No. 81AP-746, 1982
Ohio App. LEXIS 12440, 15 (Sept. 30, 1982), and Yuin v. Hilton, 165 Ohio St. 164,
134 N.E.2d 719 (1956); State v. Deadwiley, 8th Dist. Cuyahoga No. 108488, 2020-
Ohio-1605, ¶ 23. In Hernandez, the panel recognized that the specificity of the
evidentiary objection defines the scope of appellate review. Id. at ¶ 5. In that case,
the defendant objected to certain evidence on relevancy grounds. Id. In the appeal,
the defendant attempted to claim that the evidence also violated Evid.R. 404(B),
evidence of other acts. Id. The panel concluded that the defendant “forfeited the
right to argue Evid.R. 404(B) as a ground for appeal.”
Because no specific objection based on the Confrontation Clause was
preserved at the trial, appellant forfeited all but plain error. Evid.R. 103(A). Had
Williams intended his objection to be based on the Confrontation Clause and not the
state evidentiary rule, he would have been expected to proffer that specific objection
to the trial court after the ruling was rendered based on the excited utterance
exception to hearsay. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019,
9 N.E.3d 930, ¶ 103, citing Evid.R. 103(A) (although trial counsel objected to the
evidence, the objection was based on a different rationale than advanced on appeal,
and therefore, the assignment of error was reviewed for plain error). In order to
establish plain error, an appellant “must show that an error occurred, that the error
was plain (i.e., the error was an ‘obvious’ defect in the trial proceedings), and that
but for the error, the outcome of the trial clearly would have been otherwise.”
State v. Whitaker, 169 Ohio St.3d 647, 2022-Ohio-2840, 207 N.E.3d 677, ¶ 39,
citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240.
“[P]lain error should be found only in exceptional circumstances and only to prevent
a manifest miscarriage of justice.” State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d
274 (2001), citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph
three of the syllabus. In this case, the officer’s testimony did not implicate
Williams — the victim merely told the officer that he was shot at. That statement
could be deemed superfluous in light of the video evidence demonstrating the victim
being threatened by Williams with the firearm.
This is not the extraordinary case warranting appellate intervention
even if the admission of the testimony was deemed to have been in error.
With respect to the two employees of the convenience store, although
Williams broadly claims that the officer’s testimony violated his right to confront the
witnesses, his sole argument pertains to whether the statements are inadmissible
hearsay. Accordingly, our focus is on whether the statements were admissible under
Evid.R. 801 or an exception to hearsay in light of the argument presented. On this
point, Williams’s sole claim is that the statements were hearsay as defined under
Evid.R. 801(C) and, thus, the trial court should have excluded the statements.
Williams, however, failed to object to the officer’s statements regarding the
witnesses’ photo-array identification of Williams at trial.
As previously mentioned, under Evid.R. 103(A) “[e]rror may not be
predicated upon a ruling which admits or excludes evidence unless a substantial
right of the party is affected, and * * * [when] the ruling is one admitting evidence,
[a] timely objection or motion to strike appears of record stating the specific ground
of objection.” Williams largely ignores the fact that he failed to timely object to the
employees’ identification statements made to the police officer testifying at trial.
Because Williams has not presented an argument pertaining to the plain error
standard of review, we cannot offer relief with respect to the photo-array
identification by the two employees. We cannot substitute our own analysis on
Willliams’s behalf. See Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19
N.E.3d 900, at ¶ 19.
The fourth assignment of error is overruled.
ii. Authenticity of Surveillance Video
In the fifth assignment of error, Williams claims the trial court erred
by admitting the surveillance videos from the car lot into the trial record based on
the lack of testimony authenticating the recordings. Williams never objected to the
videos being introduced at trial. His first objection as to the authenticity of the
videos obtained from the car lot’s surveillance system came at the close of all
evidence when the state moved to admit its exhibits into the record. He did not
object to the admissibility of the pizzeria’s surveillance videos during trial, and in
fact, during his own testimony Williams asked for the videos to be played for the
jury’s benefit. In this appeal, it is unclear which videos are being challenged.
Because Williams failed to object to the admissibility of the
surveillance videos obtained from the pizzeria and relied on those videos during his
trial testimony, he has waived any error as to the authenticity of the recordings
admitted into the record.
Further, as it pertains to all the car lot videos introduced at trial,
Williams conceded at trial that the videos displayed the encounter as it unfolded.
Tr. 595:10-11 (explaining that he fired his weapon in the vicinity of the victim who
was standing by Williams’s car after the shooting as “captured” on the car lot’s video
surveillance cameras). Williams waived any authenticity concerns but, more to the
point, arguably authenticated the car lot surveillance videos through his own
testimony. In light of the limited arguments presented on the authentication issue,
we conclude that this is not the exceptional case in which to exercise our discretion
to grant relief on plain error review. Hill, 92 Ohio St.3d at 203, 749 N.E.2d 274,
citing Long, 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus.
The fifth assignment of error is overruled.
iii. Evid.R. 404(B)
In the seventh assignment of error, Williams claims the trial court
erred by admitting videographic evidence of the convenience store shooting during
the jury portion of his bifurcated trial in violation of Evid.R. 404(B), which provides
in pertinent part that “[e]vidence of any other crime, wrong or act is not admissible
to prove the person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” According to Williams,
If the evidence was used to show the jury Williams still had his gun on
October 24, 2020 — he already admitted that fact. The evidence was
likely introduced to undermine the fact that he was defending himself
on October 21, 2020, by implying he had a propensity to fire a gun.
(Emphasis added.) Disregarding the speculative nature of the argument presented,
all of the statements at issue under this assignment of error were elicited during the
state’s cross-examination of Williams. The state did not seek to introduce evidence
of the convenience store shooting in its case in chief as presented to the jury. This
is an important distinction.
It has been generally noted that “[t]he introduction of evidence of
other bad acts can be prejudicial and is generally prohibited by Evid.R. 404(B).”
State v. Patton, 8th Dist. Cuyahoga No. 62020, 1993 Ohio App. LEXIS 2677, 11
(May 27, 1993), citing State v. Curry, 43 Ohio St.2d 66, 68-69, 330 N.E.2d 720(1975). Notwithstanding, if the defendant “opens the door” to this type of evidence,
he cannot succeed in demonstrating prejudice. Id., citing State v. Greer, 39 Ohio
St.3d 236, 243, 530 N.E.2d 382 (1988), and State v. Hartford, 21 Ohio App.3d 29,
31, 486 N.E.2d 131 (8th Dist.1984).
The video recording of the convenience store shooting was first
discussed in front of the jury after Williams initially claimed selective amnesia as to
the whereabouts of the handgun he used to murder Catala during the state’s cross-
examination. Tr. 600:6-15. He eventually disclosed that he sold the firearm after
the convenience store shooting but not until after the state presented the video
recording depicting Williams using the weapon at the convenience store to refresh
his recollection as to his continued possession of the firearm. At no point in time
did the state rely on Evid.R. 404(B) as a basis to discuss the convenience store
shooting during its cross-examination of Williams. The state contends that the
introduction of the convenience store shooting during the jury phase of trial was
based on attacking Williams’s character for truthfulness based on his evasive
answers regarding the firearm that he supposedly used in self-defense.
During the pretrial proceedings in which the trial court concluded
that the convenience store shooting evidence would not be presented to the jury, the
trial court expressly cautioned that although not generally admissible in the state’s
case to the jury, it would be admissible if the defense “opened the door” during its
presentation of evidence. Tr. 207:9-208:11. During the state’s cross-examination of
Williams, the trial court sustained several objections when the state’s questioning
veered too far from the limited door opened by Williams’s testimony.
Tr. 604:8, 605:22, 606:3.
Williams did not file a reply brief to offer any further clarification in
response to the state’s arguments or the procedural posture of when the evidence
was presented to the jury and in what context. See App.R. 16(A)(7).
The sole question, left unaddressed in this appeal, is whether
Williams “opened the door” to the state’s line of questioning during his testimony
by failing to disclose when he disposed of the weapon he used to murder Catala.
Because he has not addressed the procedural foundation of the challenged evidence,
we cannot offer relief. It is not this panel’s obligation to develop or hone arguments.
See Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 19. In
light of the broad nature of Williams’s argument, one that does not account for his
opening the door to the video during his cross-examination, the seventh assignment
of error is overruled.
c. Weight of the Evidence
In the first and third assignments of error, Williams claims that his
convictions are against the weight of the evidence based on his testimony
establishing the elements of self-defense. According to Williams, the record
conclusively demonstrates that he acted in self-defense when his testimony is
considered to the exclusion of the state’s evidence rebutting the assertion of self-
defense. In the alternative, Williams claims that his convictions for killing Catala
are not supported by sufficient evidence or are against the weight of the evidence
because the state failed to prove that Williams purposefully acted in the murder of
Catala.
When evaluating a claim that a jury verdict is against the weight of
the evidence, appellate courts “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 we must reverse the conviction and order
a new trial.” State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092,
¶ 168, citing State v. Thompkins 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
Reversing a conviction based upon the weight of the evidence should occur “‘only in
the exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
The act of asserting self-defense is a concession that the defendant
“had the purpose to commit the act, but * * * was justified in his actions.” State v.
Talley, 8th Dist. Cuyahoga No. 87143, 2006-Ohio-5322, ¶ 45. Self-defense, thus
“presumes intentional, willful use of force to repel force or escape force.” State v.
Champion, 109 Ohio St. 281, 286-287, 142 N.E. 141 (1924). In this regard,
Williams’s arguments with respect to lack of evidence demonstrating his
purposefully shooting Catala are without merit. The fact he claimed to be acting in
self-defense demonstrates the requisite mens rea for the commission of the murder.
Self-defense offers a justification for the action but necessarily concedes that the act
was purposely committed.
Williams’s arguments that the jury lost its way in rejecting his
assertion of self-defense is solely focused on his evidence to the exclusion of the
state’s evidence. It is well-settled that “‘a conviction is not against the manifest
weight of the evidence simply because the jury rejected the defendant’s version of
the facts and believed the testimony presented by the state.’” State v. Jallah, 8th
Dist. Cuyahoga No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist.
Ross No. 13CA3391, 2014-Ohio-2959, ¶ 28; see also State v. Kouame, 8th Dist.
Cuyahoga No. 108559, 2020-Ohio-3118, ¶ 53. Without a more developed analysis
provided by Williams, we cannot conclude that the jury lost its way on this factual
question. We agree that his evidence, Bostic’s and his own testimony, demonstrated
a basis to assert self-defense, which is why the trial court instructed the jury on self-
defense and the state’s burden of proof. The state, however, presented some
evidence that Catala was not armed or brandishing a firearm during his interaction
with Williams and that Catala was shot as he walked away from Williams and
appeared to be no threat to Williams or Bostic. Further, Williams conceded that he
was under the influence of cocaine and his perception of the events may have been
impacted. In short, the jury was free to reject Williams’s version of events and he
has not demonstrated this to be the exceptional case warranting appellate
intervention.
The first and third assignments of error are overruled.1
d. Miscellaneous Assignments of Error
In the sixth and eighth assignments of error, Williams claims that the
1 Williams also claims that the convictions based on the crimes committed against
the nontestifying victims, Catala’s friend and the store clerk who was present but not shot,
must be vacated since they did not testify at trial. Williams provides no citation to
authority to support that broad proposition that a victim must testify in order for a
conviction to be sustained on appeal as required by App.R. 16(A)(7). That argument is
summarily overruled.
trial court improperly denied a lesser-included offense jury instruction on the felony
murder count, with Catala being the named victim, and the trial court erred by
denying a motion for mistrial because a police officer revealed to the jury that
Williams was in jail. These assignments of error are devoid of merit or not developed
enough to warrant further discussion.
The felony murder conviction, based on a violation of
R.C. 2903.02(B), merged into the murder conviction that was a violation of
R.C. 2903.02(A). Any error with respect to the jury instructions as to the merged
felony-murder offense, which is not a final conviction based on that merger, is
necessarily harmless because his murder conviction has been affirmed in this
appeal. See, e.g., State v. Hawkins, 8th Dist. Cuyahoga No. 109452,
2021-Ohio-1484, ¶ 38, citing State v. Ramos, 8th Dist. Cuyahoga No. 103596,
2016-Ohio-7685, ¶ 14, and State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191(1990). Even if we found error in failing to give the requested jury instruction, which
would be purely advisory, the sufficiency of the felony-murder conviction would not
result in any relief being afforded since there is no final conviction on that count and
a new trial would not be necessary.
And finally, in three paragraphs of explanation and analysis, Williams
claims that the trial court erred by failing to provide the jury with a curative
instruction after a police officer referenced jail calls made by Williams. Williams,
however, expressly refused the trial court’s invitation to provide that curative
instruction. Tr. 556:6-10. Any error with regard to the lack of an instruction was
invited. See Hal Artz Lincoln-Mercury Inc. v. Ford Motor Co. Lincoln-Mercury
Div., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus (the
invited doctrine error provides that a defendant may not “take advantage of an error
which he himself invited or induced”). The sixth and eighth assignments of error
are overruled.
III. Conclusion
The defendant’s convictions are affirmed.
It is ordered that appellee recover from 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
convictions 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.
_____________________
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, J., CONCURS;
MICHELLE J. SHEEHAN, P.J., CONCURS IN JUDGMENT ONLY