State v. Blair , 2024 Ohio 1061 ( 2024 )

[Cite as State v. Blair, 2024-Ohio-1061.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112388
v. :
DOMINIQUE BLAIR, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 21, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-665038-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carla B. Neuhauser, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
SEAN C. GALLAGHER, J.:
Appellant Dominique Blair (“appellant”) appeals her convictions in
this case and the trial court’s denial of her motions for a mistrial. Upon review, we
affirm.
I. Background
On November 23, 2021, appellant was charged in a 13-count
indictment with offenses stemming from an alleged shootout incident that occurred
on October 27, 2021. The incident, which was captured on surveillance videos,
involved appellant and James Morris and occurred in the Carver Park Estates in
Cleveland. The case proceeded to a jury trial.
In the surveillance videos, appellant and Morris are seen separately
walking up and down Louise Harris Drive between the cross streets of Dandridge
Circle and Bohn Road. At approximately 5:52:30 in the video footage, appellant is
walking northbound ahead of Morris with what appears to be a handgun in her right
hand. After they exit the screen, appellant reappears walking southbound at the
intersection of Louise Harris Drive and Bohn Road. She points her handgun behind
her with her right arm fully extended. She also has a long, rectangular box in her
left hand. Morris enters the screen walking on the opposite side of the street, he
pulls the hood of his sweatshirt over his head, and he has what appears to be a
handgun in his right hand. The two continue walking southbound on opposite sides
of the street, and appellant appears to brandish her handgun at Morris. As appellant
is approaching the rear side of her home and passing the passenger side of a white
Hyundai Sonata parked in the street, Morris is seen crossing the street and appears
to discharge his firearm toward appellant. Appellant ducks down by the passenger
side of the white Hyundai and turns to her left so that she is looking back at Morris.
Appellant then stands a little further back and turns toward Morris, who reacts by
ducking behind the rear of the white Hyundai. Morris is then seen running off.
Appellant next appears exiting the front door of her home with several children
while holding a rifle in her hand, and she peers around the corner of her home. She
then exits the back door without the rifle and walks around the street, stopping at
the white Hyundai, which was being inspected by the owner’s husband. Nobody was
injured during the incident.
The Cleveland Metropolitan Housing Authority police arrived at the
scene after resident Dwan Poage (“Poage”) called 911 to report that a bullet had come
through her home and that she heard “two different guns.” Officer David Whitney,
who responded to the scene, testified that he observed a bullet that had entered
Poage’s home and embedded itself in a wall. He followed the trajectory of the bullet
across the street in the direction of the white Hyundai. The vehicle had sustained
damage from bullet holes on the passenger side of the car, which appellant had been
facing. The police found two 9 mm shell casings near the rear of appellant’s home
in the area where appellant was retreating to her home. Those shell casings were
not linked to any weapon involved in the incident. The rear window of appellant’s
home also was broken. Appellant informed the police that the window had just been
shot out. Officer Whitney surmised from his observations that crossfire had
occurred.
Detective Ashley Jaycox testified to the investigation of the shootout
incident. The detective reviewed the video footage and testified that it appeared that
Morris “fired what appeared to be one, possibly two rounds toward [appellant,]” that
it appeared appellant was “firing back,” and that Morris’s “ducking behind the white
Hyundai” was “indicative of him being shot at.” Detective Jaycox also noted the
bullet defects on the passenger side of the white Hyundai and in Poage’s home, as
well as the shell casings found in the area where appellant was retreating to her
home.
The police were not able to locate a handgun attributed to appellant,
and they did not locate any firearms in appellant’s home or in her car when she was
arrested on November 5, 2023. Morris was not arrested until November 12, 2021.
During his arrest, the police recovered a rifle and a 9 mm handgun, along with other
items. A spent shell casing was recovered from Morris’s vehicle, which matched the
9 mm handgun that was recovered in conjunction with his arrest. Detective Jaycox
testified that the two shell casings found at the scene of the shootout incident did
not match that handgun. Other testimony and evidence were presented in the
matter.
During Detective Jacox’s testimony, it was revealed during a sidebar
discussion that there were reports the state had not turned over to the defense that
showed the 9 mm shell casings recovered at the scene of the incident did not match
the 9 mm handgun recovered at the time of Morris’s arrest. Detective Jaycox
indicated that “[t]here should be an Operability Report,” “the ATF Trace Report,”
and “a NIBIN entry report.”1 As a result of the discovery violation, the trial court
1 The detective indicated that the “NIBIN” is “a national database of shell casings.”
excluded those records. The trial court denied appellant’s motion for a mistrial and
her renewed motion for a mistrial.
At the close of the state’s case, the trial court dismissed Count 9 for
endangering children at the state’s request. The trial court granted appellant’s
Crim.R. 29 motion for acquittal only as to Count 12 for endangering children, but
the court denied the Crim.R. 29 motion and a renewed Crim.R. 29 motion as to the
remaining counts.
The jury returned a verdict of guilty of felonious assault (Count 1); two
counts of improperly discharging a firearm at or into a habitation (Counts 4 and 5);
discharging a firearm on or near a prohibited premises (Count 6); endangering
children (Counts 10 and 11); and criminal damaging (Count 13); and associated one-
and three-year firearm specifications on Counts 1, 4, 5, and 6. The jury found
appellant not guilty of Counts 2 and 3 for felonious assault and Count 8 for carrying
a concealed weapon. The trial court found appellant guilty of having a weapon while
under a disability (Count 7).
Appellant filed a post-trial motion to declare a mistrial and to set
aside the jury verdict and for a new trial. A hearing was held, and the trial court
denied the motion. The trial court proceeded to sentencing. The aggregate-total
prison sentence imposed was eight years.
Appellant timely filed this appeal. She raises three assignments of
error for review.
II. ANALYSIS
Under her first assignment of error, appellant claims the trial court
erred by denying her motions for mistrial. Appellant argues that the state violated
Crim.R. 16 by failing to provide discovery material before trial. The undisclosed
information included reports and/or test results that showed the two shell casings
found at the scene of the incident did not match the handgun found in conjunction
with Morris’s arrest. As a result of the discovery violation, the trial court excluded
the records. Appellant’s motions for a mistrial were denied.
Pursuant to Crim.R. 16, when a discovery violation is brought to the
attention of the court, the court may make any order it deems “just under the
circumstances.” Crim.R. 16(L)(1). The trial court is to inquire into the
circumstances of the alleged discovery violation and is required to impose “the least
severe sanction that is consistent with the purpose of the rules of discovery.” State
v. Parker, 53 Ohio St.3d 82, 86, 558 N.E.2d 1164 (1990), citing Lakewood v.
Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987). The trial court has discretion in
determining an appropriate sanction. See State v. Parson, 6 Ohio St.3d 442, 445,
453 N.E.2d 689 (1983). Our review of the trial court’s determination is for an abuse
of discretion. State v. Marshall, 1st Dist. Hamilton Nos. C-190748 and C-190758,
2021-Ohio-816, ¶ 16.
The Supreme Court of Ohio has set forth three factors that should
govern a trial court’s exercise of discretion in imposing a sanction for a discovery
violation committed by the prosecution. See State v. Darmond, 135 Ohio St.3d 343,
2013-Ohio-966, 986 N.E.2d 971, ¶ 35, citing Parson at syllabus. Those factors
include “(1) whether the failure to disclose was a willful violation of Crim.R. 16, (2)
whether foreknowledge of the undisclosed material would have benefited the
accused in the preparation of a defense, and (3) whether the accused was
prejudiced.” Id., citing Parson at syllabus. However, a mistrial should be granted
“only when justice requires and a fair trial is no longer possible.” State v. Madison,
160 Ohio St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867, ¶ 196, citing State v. Cepec,
149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 89; see also State v.
Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991); Parker at 86, citing Hughes
v. Hopper, 629 F.2d 1036, 1039 (5th Cir.1980).
The record herein does not demonstrate that the prosecution’s
nondisclosure of discovery materials was willful. Further, it defies logic for
appellant to suggest the nondisclosed evidence would have offered a new defense
strategy or have benefited the accused in preparing her defense. The video evidence
in this case depicted appellant with what appeared to be a handgun and her
interaction with Morris. There were bullet holes to the passenger side of the white
Hyundai appellant was facing, a bullet embedded in Poage’s home across the street,
a 911 call reporting hearing two different guns, and two shell casings found near the
rear of appellant’s home. The defense was aware that the police did not recover a
firearm associated with appellant and that the two shell casings, which had been
made available for inspection, were never connected to any firearm. Despite the
evidence, the defense theory was always that “she didn’t shoot.” The fact that the
two shell casings did not match the firearm found at the time of Morris’s arrest is of
no consequence. The shell casings could have come from any 9 mm handgun, and
as Detective Jaycox testified, the shell casings are not even needed to conclude that
a shooting took place. The test results simply do not alter the essential facts in this
case. Additionally, there was little, if any, prejudice to appellant from the
nondisclosure of the reports and/or test results. The trial court took remedial
measures and excluded the undisclosed records from use at trial, the detective was
effectively cross-examined, and there is nothing in the record to indicate that had
the reports and/or test results been disclosed prior to trial, the result of the
proceeding would have been different.2
Finally, although a discovery violation occurred, the trial court
properly exercised its discretion by imposing the least severe sanction consistent
with the purposes of the criminal discovery rules. As the trial court indicated, it
“took the least heavy-handed approach to this by excluding those records.” In the
end, because appellant was not prevented from receiving a fair trial, a mistrial was
wholly unwarranted. Upon our review, it cannot be said that there was any abuse of
discretion by the trial court.
We also do not find any abuse of discretion in the trial court’s denial
of appellant’s request to set aside the verdict and for a new trial. The motion was
filed outside the 14-day time frame permitted by Crim.R. 33. Further, the
2 The circumstances of this case are wholly distinguishable from State v. Wilson,
30 Ohio St.3d 99, 507 N.E.2d 1109 (1987), which is cited by appellant.
discretionary decision to grant a new trial “‘is an extraordinary measure that should
be used only when the evidence presented weighs heavily in favor of the moving
party.’” State v. Howard, 8th Dist. Cuyahoga No. 101359, 2015-Ohio-2854, ¶ 45,
quoting State v. Price, 8th Dist. Cuyahoga No. 92096, 2009-Ohio-480, ¶ 14. This is
not such a case.
Insofar as appellant raises a due-process challenge, we recognize that
“‘[t]here is no general constitutional right to discovery in a criminal case * * *.’”
Marshall, 1st Dist. Hamilton Nos. C-190748 and C-190758, 2021-Ohio-816, at ¶ 23,
quoting State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 120.
We find no constitutional violation occurred in this matter. Additionally, there was
no Brady violation. See id. at ¶ 12; Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963). Accordingly, the first assignment of error is overruled.
Under her second assignment of error, appellant claims that the trial
court erred by denying her motions for acquittal.
“‘A motion for acquittal under Crim.R. 29(A) is governed by the same
standard as the one for determining whether a verdict is supported by sufficient
evidence.’” State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554,
¶ 164, quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d
386, ¶ 37. “‘The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.’” Id., quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. When evaluating the sufficiency of the evidence, a reviewing court
considers “whether the evidence, ‘if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt.’” State v. Pountney, 152 Ohio St.3d
474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 19, quoting Jenks at paragraph two of the
syllabus.
A review of the record reflects that the actions of appellant and Morris
were captured on video. Officer Whitney and Detective Jaycox testified to their
observations of a crossfire or shootout situation. The video evidence showed that
appellant was observed carrying, brandishing, and pointing a handgun as she was
walking ahead of Morris. She also was observed exiting her home with a rifle in
hand while surrounded by children. During the encounter with Morris, she was
observed ducking behind the passenger side of the white Hyundai and turning
toward Morris, as well as turning toward Morris as she retreated toward her home.
Morris reacted by ducking behind the vehicle and then running off. The owner of
the white Hyundai testified to hearing three loud shots outside her home. There
were bullet holes in the passenger side of the white Hyundai, and a bullet passed
through a home across the street and was lodged into a wall. The witness who was
in that home called 911 and reported hearing two different guns. Officer Whitney
testified to following the trajectory of the bullet in Poage’s home toward the white
Hyundai. The police found two 9 mm shell casings near the rear of appellant’s home.
Viewing this and the other evidence presented in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crimes for which appellant was convicted were proven beyond a reasonable doubt.
The second assignment of error is overruled.
Under her third assignment of error, appellant claims her convictions
were against the manifest weight of the evidence.
When evaluating a claim that a verdict is against the manifest weight
of the evidence, “we 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).
After reviewing the entire record, weighing the evidence and all
reasonable inferences, and considering the credibility of the witnesses, we do not
find the trial court clearly lost its way and created such a manifest miscarriage of
justice that the adjudication must be reversed. Insofar as appellant challenges her
conviction for having a weapon while under disability, which was tried to the bench,
the trial court found appellant guilty on that count, which was reflected in the court’s
journal entry. Before the trial began, the trial court informed appellant that this
charge would be tried to the bench and noted appellant’s prior conviction for
aggravated assault, which appellant understood. Also, at the conclusion of trial,
defense counsel stated, “I’m not objecting as to the Court considering [the] 2010
[prior conviction].” Further, although appellant challenges the testimony and
evidence that was provided in the case, this is not the exceptional case in which the
evidence weighs heavily against the conviction for the challenged offenses. The third
assignment of error is overruled.
Under her fourth assignment of error, appellant claims the trial court
erred by allowing certain testimony and by admitting several exhibits over
appellant’s objections.
Appellant argues that Detective Jaycox, who was not present at the
scene, was permitted to narrate the surveillance video and to make identifications
of persons in the video. Appellant further argues that the court allowed several
exhibits to be admitted over objection. She references the guns and box recovered
from Morris and photos of the vehicle driven by Morris at the time of his arrest.
We find the video evidence was properly admitted under the silent
witness theory pursuant to Evid.R. 901. See State v. Ladson, 8th Dist. Cuyahoga
No. 111211, 2022-Ohio-3670, ¶ 21-22. Detective Jaycox testified to the camera
locations, to pulling the surveillance videos, and to reviewing the videos during the
detective’s investigation. As the lead investigator, Detective Jaycox had adequate
personal knowledge to testify as to the contents of the footage pursuant to
Evid.R. 02. See Ladson at ¶ 44, citing State v. Groce, 2019-Ohio-1007, 133 N.E.3d
930, ¶ 46 (10th Dist.). Appellant cites no authority that supports her argument
concerning the admission of the other evidence. It is not the role of an appellate
court to search for case authority to support arguments on behalf of one of the
parties. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d
900, ¶ 19, citing State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d
753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part), quoting Carducci
v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). Even if there was an error in this regard,
it was harmless at best. See Crim.R. 52(A).
We are unable to find any abuse of discretion by the trial court. The
fourth assignment of error is overruled.
We have considered all arguments raised by appellant and are not
persuaded by any argument that is not specifically addressed herein.
Judgment 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
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
MICHAEL J. RYAN, J., CONCURS;
MARY EILEEN KILBANE, P.J., DISSENTS (WITH SEPARATE OPINION)
MARY EILEEN KILBANE, P.J., DISSENTING:
I respectfully dissent from the majority opinion. I would find that the
trial court should have granted a mistrial based upon the state’s Crim.R. 16 discovery
violation.
The discovery violation was revealed when Detective Jaycox testified
that (1) the 9 mm firearm and shell casings recovered from Morris were entered into
the NIBIN system and (2) the state received test results that indicated two separate
firearms were discharged on October 27, 2018. Detective Jaycox’s testimony was
defense counsel’s first notice that any such testing was conducted; the state does not
dispute that the referenced test results were never provided through discovery.
Blair moved for a mistrial, both during and after trial, based upon the
state’s failure to disclose the test results in violation of Crim.R. 16. The essential
inquiry on a motion for mistrial is whether the accused’s substantial rights were
adversely or materially affected. State v. Johnson, 8th Dist. Cuyahoga No. 108621,
2020-Ohio-2940, ¶ 24, citing State v. Wilson, 8th Dist. Cuyahoga No. 92148, 2010-
Ohio-550, ¶ 13, citing State v. Reynolds, 49 Ohio App.3d 27, 33, 550 N.E.2d 490 (2d
Dist.1988). Further, Crim.R. 16 governs discovery and requires the prosecuting
attorney to provide results of experiments and scientific tests. Crim.R. 16(B)(4).
The purpose of the rule is “to provide all parties in a criminal case with the
information necessary for a full and fair adjudication of the facts, to protect the
integrity of the justice system and the rights of defendants, and to protect the well-
being of witnesses, victims, and society at large.” Crim.R. 16(A). The rule serves to
“‘“prevent surprise and the secreting of evidence favorable to one party.’”” Johnson,
8th Dist. Cuyahoga No. 108621, 2020-Ohio-2940 at ¶ 26, quoting Darmond, 135
Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971 at ¶ 19, quoting Papadelis, 32 Ohio
St.3d 1, 511 N.E.2d 1138, at 3 (1987).
An inquiry of a discovery violation should include three
considerations referenced as the Parson factors: “(1) whether the [prosecution’s]
failure to disclose was a willful violation of Crim.R. 16, (2) whether foreknowledge
of the undisclosed material would have benefited the accused in the preparation of
a defense, and (3) whether the accused was prejudiced.” Darmond at ¶ 35, citing
Parson, 6 Ohio St.3d 442, 453 N.E.2d 689, at syllabus. A review of the evidence in
relation to the Parson factors is necessary to determine the appropriate sanction for
the discovery violation. State v. Pagan, 8th Dist. Cuyahoga No. 97268, 2012-Ohio-
2197, ¶ 37, citing State v. Wharton, 4th Dist. Ross No. 09CA3132, 2010-Ohio-4775,
¶ 21.
Here, the Parson factors demonstrate the appropriate sanction for
the discovery violation was a mistrial. Detective Jaycox provided the test results to
the assistant prosecuting attorney in charge of Morris’s criminal case, believing the
information would be shared with Blair’s counsel. Detective Jaycox testified that
the state’s failure to provide the reports was unintentional. Testimony was
introduced that in a separate, unrelated criminal matter, Assistant Prosecuting
Attorney Neuhauser (“Neuhauser”) — who was assigned to Blair’s case — failed to
share discovery prior trial; presumably this evidence was introduced to show a
pattern of misconduct by Neuhauser. The testimony was insufficient to demonstrate
Neuhauser’s actions in the instant matter constituted a willful violation of Crim.R.
16.
However, where the basis of Blair’s defense was that she did not
discharge a firearm on October 27, 2021 — a defense strategy known to the state —
the tool mark report that confirmed a second firearm was discharged on the day of
the alleged shooting would have benefitted Blair in the preparation of her defense.
Jaycox conceded the tool mark report was significant to Blair’s defense:
DEFENSE COUNSEL: So you had to test it because it was possible at
that point that they would match the gun that was recovered from Mr.
Morris that would indicate perhaps that Ms. Blair hadn’t fired a
weapon, correct?
JAYCOX: That’s correct.
DEFENSE COUNSEL: All right. So it could — that evidence, that very
same evidence could be exculpatory and/or inculpatory, correct?
JAYCOX: Correct.
DEFENSE COUNSEL: Which is why it’s of key significance for Ms.
Blair to know about, correct?
JAYCOX: Yes.
Tr. 648. While the case against Blair would have been submitted for prosecution
even without the shell casings recovered at Carver Park, knowledge of the test results
could have allowed Blair to adopt another defense strategy or approach the state’s
plea offer differently.
Additionally, Blair was prejudiced by the Crim.R. 16 violation.
Presumably defense counsel’s questioning of Detective Jaycox would have been
different if Blair knew about the test results before trial. Without prior notice of the
test results, defense counsel’s inquiries led to Detective Jaycox stating on the record
that the test results were obtained and showed the two shell casings were unrelated
to the firearm recovered during Morris’s arrest. Defense counsel had no way to
anticipate this testimony. And even though the trial court prevented any additional
questioning on this issue or introduction of the test results, the jury heard Detective
Jaycox’s related testimony.
In applying the Parson factors, I would find that Blair’s defense
strategy was adversely impacted, and Blair was prejudiced by the state’s failure to
disclose the test results. I would find, pursuant to Blair’s first assignment of error,
that the trial court abused its discretion when it denied Blair’s motion for a mistrial;
vacate Blair’s convictions; and remand for a new trial.
For these reasons, I respectfully dissent.