State v. James ( 2024 )

[Cite as State v. James, 2024-Ohio-1469.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112741
v. :
ANTHONY JAMES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 18, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-632753-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carl J. Mazzone, and Maryann Zaky,
Assistant Prosecuting Attorneys, for appellee.
Joseph V. Pagano, for appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant, Anthony James (“appellant”), appeals from his
judgment of conviction, which was rendered after a jury trial. After a thorough
review of the facts and pertinent law, we affirm the trial court’s judgment.
Procedural History
The charges and conviction arose from the June 2018 deadly shooting
of Bahati Jumah (“Jumah”), and the robbery of Muzamil Islow (“Muzamil”) and
Yusuf Abdi Osman (“Osman”).
In October 2018, appellant was indicted along with a codefendant,
Frederico Minor (“Minor”); Minor had been on postrelease control at the time of the
incident. Counts 1, 2, and 3 related to the shooting of Jumah and charged
aggravated murder, murder, and felonious assault, respectively. Counts 4 and 5
charged aggravated robbery of Muzamil and Osman, respectively. Counts 1 through
5 all contained one- and three-year firearm specifications. The final count of the
indictment, Count 6, related solely to codefendant Minor and charged him with
having weapons while under disability.
After negotiations with the state, codefendant Minor pled guilty to
Count 1, amended to involuntary manslaughter with a one-year firearm
specification and Counts 4 and 5, the two counts of aggravated robbery, amended to
delete the firearm specifications. The negotiated plea deal required Minor to testify
truthfully against appellant in exchange for the state recommending a six-year
sentence. Minor did testify against appellant, and the trial court followed the state’s
recommendation and sentenced Minor to a six-year prison term. Minor also faced
additional time for violating the terms of his postrelease control on another case due
to his conduct in this case.
Appellant’s jury trial began in April 2023. In the time between the
indictment and trial — i.e., from October 2018 to April 2023 — the case was
extensively pretried, in large part, because of the repeated withdrawal of counsel and
appointment of new counsel that occurred at appellant’s request. Appellant was
represented by at least five different attorneys, who, upon being assigned, needed
time to get familiarized with the case. Pretrial and trial dates were continually
continued, largely at the defense’s behest, because discovery and negotiations were
ongoing.
For a period of time, appellant waived his right to counsel and
proceeded pro se with stand-by counsel; during this time, as well as when he was
represented by counsel, appellant, pro se, filed a barrage of motions. For example,
appellant, pro se, raised alleged speedy trial violations a number of times. In one
instance, when appellant was properly proceeding pro se in February 2022 because
he had voluntarily waived his right to counsel, he filed a motion to dismiss based on
speedy trial. A hearing was held, it was determined that time was tolled at that time
because appellant had never responded to the state’s discovery request, and the
motion was denied.
Thereafter, in March 2022, appellant waived his speedy trial rights
from March 8, 2022, through September 30, 2022. Despite his waiver, on May 2,
2022, appellant filed a “motion to assert speedy trial rights.” None of his counsel
ever raised the issue of speedy trial.
The record further shows that, in late October 2021, appellant raised
the issue of his competency and was referred to the court psychiatric clinic for
evaluation. After evaluation, in early January 2022, appellant’s counsel and the
state stipulated to the psychiatric clinic’s report, which found appellant competent.
In addition to the constant change of counsel, beginning near the end
of March 2020, the proceeding was at a standstill because of court orders related to
the Covid-19 pandemic.1
When the case did proceed to trial in April 2023, the state presented
16 witnesses. At the close of the state’s case, appellant made a Crim.R. 29 motion
for judgment of acquittal, which the trial court denied. The defense rested without
presenting any witnesses and renewed its Crim.R. 29 motion; the motion was again
denied. The defense requested an instruction on the lesser-included offense of
involuntary manslaughter, which the trial court denied. The state requested, and
was granted, a lesser included instruction on Count 1 (aggravated murder) of
murder. After its deliberations, the jury returned a guilty verdict on the lesser-
included offense of aggravated murder, that being murder, under Count 1, and guilty
verdicts on the remaining counts and specifications of the indictment.
1 We further note that in October 2021, the trial judge originally assigned to the
case unexpectedly passed away and a retired judge of the court was appointed by the Ohio
Supreme Court to take over the deceased judge’s docket; he presided through the end of
the year 2021. In 2022, the governor appointed an attorney to take over the docket; that
jurist ran for election to the seat in November 2022, but was defeated. The newly elected
judge took over the case in January 2023, and was the judge who presided at trial.
At sentencing, the trial court merged Counts 1, 2, and 3 (murder and
felonious assault of Jumah) and the state elected to sentence on Count 1, murder.
The court imposed a prison term of 18 years to life on Count 1, which included three
years on the firearm specification; six years on Count 4 (aggravated robbery), which
included three years on the firearm specification; and six years on Count 5
(aggravated robbery), which included three years on the firearm specification.
Counts 4 and 5 were ordered to be served concurrently to each other, but
consecutively to the sentence imposed under Count 1. Thus, appellant was
sentenced to a term of 24 years to life.
Facts as Elicited from Trial Testimony
The trial testimony established that appellant and his codefendant
Minor were known drug dealers on the west side of Cleveland. The two spent much
of the day together on the day of the incident at issue and much of the relevant events
occurred at a west-side apartment complex located on W. 112th Street, near Detroit
Avenue, in Cleveland.
Minor testified that appellant owned two semiautomatic pistols. Prior
to the day of the incident, one of appellant’s pistol was stolen from him — the theft
occurred at this apartment complex. Also, some time prior to the incident, Minor
had purchased a weapon from a maintenance man at the apartment complex. Minor
showed the weapon to appellant, who, coincidentally, recognized it as his stolen
weapon. Minor testified that after learning from appellant that it was the stolen gun,
he too believed it was appellant’s stolen weapon. Minor questioned the maintenance
man about from whom he had purchased the weapon. Minor learned a general
description of the sellers and that they “hung out” at the apartment complex.
On the day of the incident, Muzamil, one of the robbery victims, had
an encounter with appellant; he did not know who appellant was. The encounter
occurred at a convenience store across the street from the apartment complex.
Muzamil described appellant as “skinny” and wearing yellow pants. Appellant said
something to Muzamil to the effect of “whatever you got over there, we’re going to
need that.” Muzamil testified that he was confused and felt threatened.
Minor testified that that evening, he and appellant went to the
apartment complex around 9:15 p.m. They saw the robbery victims, Muzamil and
Osman, along with another individual identified only as “Rome” exit the apartment
complex. Believing that one or all of them had stolen appellant’s gun, appellant and
Minor approached the men. Minor testified that appellant had a gun and pointed it
the trio — Muzamil testified that, although he never saw a gun, appellant acted like
he had one. However, Osman testified that he saw appellant with a gun. Appellant
had a shirt covering his face.
Muzamil and Osman testified that the “chubby” man, who was later
identified as Minor, demanded whatever Muzamil had in his pocket and grabbed at
his pocket in an attempt to get the contents of it. Muzamil said he did not have
anything in his pocket and pushed Minor’s hand away; Minor responded by
punching both Muzamil and Osman. Muzamil, Osman, and Rome ran back into the
apartment complex.
Muzamil testified that he ran into the building to tell his friends about
what had just occurred and to warn them not to go outside. Approximately
30 minutes later, Muzamil and Osman left the apartment complex. Muzamil
testified that about an hour later, he received a call from his brother, Hassan Islow
(“Hassan”) saying that Jumah had been shot. Muzamil and Osman hurried back to
the apartment complex, where they found Jumah on the floor, bleeding and choking
on his own blood. The testimony revealed that the shooting occurred at
approximately 10:20 p.m.
Jumah had been with his brother on the evening in question — they
were in an apartment at the complex and were babysitting Hassan’s child. Hassan
and the child’s mother, Erin, lived in an adjacent building and were spending time
alone.
According to Jumah’s brother, Jumah stepped out of the apartment
for a reason unknown to him. Hassan’s testimony explained why Jumah left the
apartment — Jumah was coming to his apartment to use the WiFi. According to
Hassan, Jumah banged on the door, stumbled in, and fell to the floor. Hassan called
first responders while Erin administered CPR to Jumah. Jumah was transported to
a local hospital, where he passed away. An autopsy revealed that Jumah died of a
gunshot wound to the neck.
Minor testified as to the shooting. He explained that after the robbery
earlier in the evening, he and appellant went to his (Minor’s) house on W. 73rd
Street in Cleveland where they relaxed until they left to purchase liquor; Minor was
driving in his red Pontiac Grand Prix. They went to a couple of stores and were on
their way to a west-side location to meet a “customer.”
They drove by the apartment complex, and as they did, they saw a
group of people outside. Appellant told Minor to turn around because he believed
it was the same group from earlier in the day. Minor complied, they both got out of
the car, and walked up to the apartment complex. By the time they reached the door,
nobody was there. Although Minor did not live at the complex, he had a key from a
friend. Minor opened the door to the apartment building, and he and appellant went
in; Minor was first and appellant, who again had his face concealed, followed behind
him. There was a man in the hallway (Jumah) and Minor realized that he was not
one of the men he and appellant had previously encountered. The only people in the
hallway were appellant, Minor, and Jumah. Minor punched Jumah and then ran.
Minor testified that as he ran away, he heard two gunshots. According to Minor,
appellant had a gun, and he did not see Jumah with a gun.
Minor ran to his car and appellant soon joined him. Appellant’s
clothes were covered in blood. Appellant told Minor he “didn’t mean to do it.”
Minor then drove back to his house, whereupon he told appellant he was not
welcome to come in. Appellant told Minor that he needed to be dropped off on the
east side of Cleveland, but Minor told him he was not taking him anywhere else.
Minor’s girlfriend, who was at the house, gave appellant a ride.
The following day, Minor saw news reports of the shooting. He met
with appellant; he described appellant as appearing “shook up” and told Minor “you
know what it is.” Appellant also told Minor that if they went to jail, appellant “had
him.” According to Minor, he and appellant never talked about the shooting and in
the weeks thereafter they drifted apart.
There were reports of a red Pontiac leaving the scene of the shooting.
The police, on lookout for a red Pontiac, saw one and obtained the plate information;
the car was registered to Minor. The police then obtained a photograph of Minor
that was placed in a lineup and presented to Muzamil and Osman; both men
identified Minor as the person who attempted to rob them.
In August 2018, the police processed Minor’s Pontiac. A white cloth
with suspected blood was taken from the vehicle. The police did not swab for
fingerprints or DNA.
The police investigation also included reviewing security videos from
the apartment complex, a nearby beverage store, funeral home, and a city camera.
Some of the videos did not have accurate times and an FBI special agent who
reviewed them testified that he used the video from the city camera, which had the
correct times, as a benchmark for the timing on the other videos. The special agent
put together a “presentation video” of what he concluded was the significant
portions of the videos and that video was shown to the jury during the agent’s
testimony.
The special agent also testified as to his investigation of social media
and phone records relative to this case. His investigation showed that Minor had a
cell phone number associated with appellant in his phone. Search history on
appellant’s Facebook account revealed searches the day following the shooting for
“Cleveland 19 News,” “Channel 5 News,” “News Channel 5,” “Punkin Memorial
Page,” “Memorial Page,” “Cleveland Memorial Page,” and “Remembrance Page.”
Law enforcement testified that the memorial pages are generally about homicide
victims.
Over the defense’s objection, the state introduced recorded calls
Minor made from jail. The trial court allowed the state to use the calls so long as
they were not referred to as “jail calls” to the jury; rather, they were referred to as
“recorded conversations.” State’s exhibit No. 13 was a two-minute call from Minor
to his mother while he was in jail and prior to appellant’s arrest. There was a
discussion on the call about appellant saying he would post bond for Minor. Minor
testified he believed appellant was willing to post his bond because they were
friends. Later, after that call, appellant asked Minor if he had spoken with his
lawyers and what he was going to do.
The state also introduced letters, state’s exhibits Nos. 16 and 17,
appellant sent to Minor while the two were incarcerated. Minor read both letters
aloud in court and testified that based on the content of the letters, he knew
appellant sent them. In both letters appellant (1) questioned Minor saying that he
was “playing with his life”; (2) said he was being advised to plead to “25 to life”; (3)
said his lawyers were telling him that Minor was going to “write a statement against”
him; (4) said he was “loyalty over everything”; and (5) said he had seen the evidence
and it was not “sh**.” Minor testified that he believed appellant was concerned he
would testify against him, and appellant was warning him to keep quiet.
Other evidence was admitted over the defense’s objection. While
prepping one of its witnesses, appellant’s ex-girlfriend Roneisha (she was
appellant’s girlfriend at the time of the incident), the day before she was to testify,
the state learned of two Facebook messages and two jail calls involving Roneisha.
The state promptly sent them to defense counsel and disclosed it to the trial court
the next morning. The parties engaged in extensive discussion about the evidence.
The trial court ultimately found the evidence was relevant and allowed it in with
redactions.
The evidence was state’s exhibits Nos. 24 and 25, which were calls
appellant made to a friend, Mariah, instructing her to reach out to Roniesha because
he wanted Roniesha’s phone number. Appellant wanted to “check her [Roneisha’s]
temperature” because he saw her name “popped up” in discovery and he wanted to
know why.
Further, state’s exhibits Nos. 20A and B were the Facebook messages
that Mariah sent to Roniesha the same day as the above-mentioned calls.
Exhibit No. 20A was a message Mariah sent to Roniesha stating that “Anthony” was
looking for her. The message further stated, “Anthony James * * * wants to know
what’s going on with why they talking to [you] about his case.” Roniesha told Mariah
that there is no reason for them to talk. Mariah messaged back saying that appellant
said “f*** all that what’s your number.”
The state also presented evidence obtained from appellant’s Google
account that tracked his cellular device on the day of the shooting. An FBI special
agent testified that appellant’s cellular information was unavailable, which was
possible for a variety of reasons, including that his cellular service was turned off or
using an application (“app”). Another FBI special agent testified that he learned
through his investigation that appellant used various voiceover IP apps and that
appellant’s phone was not in service as of midnight on the night of the shooting.
Minor testified that he sometimes communicated with appellant via apps such as
Facebook or TextNow. Law enforcement testified that Google uses GPS, WiFi, and
cell signals to estimate a device’s location. They were able to compare appellant’s
Google account device information to Minor’s cellular and Google account
information for the evening in question.
A special agent explained that when a device communicates with a
network, it reaches a cell tower but not necessarily the closest cell tower so the device
can be tracked to the general area of that tower. The agent testified that although
the information is not exact, it is nonetheless accurate and reliable. After analyzing
both Minor and appellant’s accounts and mapping out the locations, the special
agent determined the devices were together throughout the evening. Specifically, at
10:20:49 p.m., appellant’s device was on Detroit Road. At 10:21 p.m., Minor’s device
was on Detroit Road in the West 80’s area. Between 10:26 p.m. and 10:29 p.m.,
Minor’s device was recorded at the apartment complex. The agent testified that to
a reasonable degree of technological certainty the two devices were in the same
location.
The agent testified that after 11:00 p.m., there was no location
information for appellant’s device until approximately 9:18 a.m. the next morning.
Likewise, there was no overnight data information for Minor’s device from late on
the night of the shooting until 8:48 a.m. the next morning. The next set of location
data for appellant’s device came the next morning from a residence in the East
Cleveland area.
Appellant was arrested with an iPhone that was retained by law
enforcement. However, nothing was found on the phone that was directly or
indirectly related to this case. A law enforcement official testified that based on his
analysis of all the cell phone and social media records obtained, he concluded that
appellant was not using that iPhone at the time of the incident. Or, if he was, he was
also using other devices. It was determined that appellant was using a Samsung
Android device to post on his account at the relevant time.
Roneisha, appellant’s girlfriend at the time of the incident, testified
that appellant messaged her via Instagram on the day of the shooting. He first told
her he was hanging out on West Boulevard playing a game. They messaged again at
5:57 p.m. and then not again until 10:58 p.m. when appellant messaged, “I really
need you.” Roneisha asked “why,” to which appellant responded, “whist got into
sum.” Roneisha testified that she took his response to mean that appellant had just
gotten into something. Roneisha pressed appellant about what he is trying to tell
her, and he responded, “scant say” and that he could not call her. At 11:22 p.m.,
appellant told Roneisha he was on W. 73rd Street and asked to come stay with her.
Their message exchange ends soon after.
Assignments of Error
I. The trial court erred by admitting testimony and exhibits over
appellant’s objection in violation of Crim.R. 16 and Evid.R. 401,
402 and 403 that deprived appellant of a fair trial and due
process.
II. The trial court erred when it denied appellant’s motion for
acquittal under Crim.R. 29 because the state failed to present
sufficient evidence to establish beyond a reasonable doubt the
elements necessary to support the convictions.
III. Appellant’s convictions are against the manifest weight of the
evidence.
IV. Appellant’s constitutional rights were violated when the charges
were not dismissed for want of speedy trial.
V. Appellant was deprived of effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments to the United
States Constitution and Art. I. § 10 to the Ohio Constitution.
VI. The court erred by denying the defense request for a jury
instruction on involuntary manslaughter.
VII. Appellant’s sentence is contrary to law because the record does
not support the imposition of consecutive sentences.
Law and Analysis
Evidentiary Admissions Not an Abuse of Discretion
In his first assignment of error, appellant contends that, over his
objection, the trial court improperly allowed certain evidence in violation of
Crim.R. 16 and Evid.R. 401, 402, and 403.
A trial court has broad discretion regarding the admission of evidence,
and a “reviewing court should not disturb evidentiary decisions in the absence of an
abuse of discretion.” State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781
N.E.2d 88, ¶ 43, citing State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904 (2001). The
issue then is whether the trial court’s admission of the contested evidence was
unreasonable, arbitrary, or unconscionable. Noling at id.Appellant’s Crim.R. 16 challenge vis-à-vis admitted evidence relates
to Roneisha’s testimony that the state learned of the day before she was to testify.
Specifically, appellant challenges the admission of exhibit Nos. 20A and 20B that
were screenshots of Facebook messages between Roniesha and Mariah, as well as
exhibit Nos. 24 and 25, which were recorded conversations appellant made from jail
to Mariah.
Crim.R. 16 provides for discovery and inspection by either party in a
criminal case. Specifically, Crim.R. 16(B) provides that, upon a defendant’s demand
for discovery, the state must permit the defendant to inspect and copy or photograph
tangible objects available to it or within its possession, custody, or control and that
are material to the preparation of the defense or are intended for use by the state as
evidence at the trial.
A trial court does not abuse its discretion in admitting undisclosed
evidence that is discoverable under Crim.R. 16 unless the record demonstrates at
least one of the following factors: “(1) that the prosecution’s failure to disclose
[the evidence] was a willful violation of Crim.R. 16, (2) that foreknowledge of the
[evidence] would have benefited the accused in the preparation of his defense, or
(3) that the accused was prejudiced by admission of the [evidence].”
State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983), syllabus.
In examining the first Parson factor, we find that the state’s failure to
disclose the evidence did not constitute a willful violation of Crim.R. 16. The record
demonstrates that the evidence was not made available to the state until the day
before trial, and as soon it was made available to it, the state informed the defense.
In examining the second Parson factor, appellant makes a blanket
statement that the “timing of this disclosure rendered counsel unable to provide
effective assistance in violation of the Sixth Amendment,” but without more, we are
unable to ascertain how that foreknowledge of the evidence would have benefitted
appellant in the preparation of his defense. In fact, after ruling that the evidence
was going to be allowed, the trial court asked counsel if he wished to speak to
appellant about it, and counsel declined. Roniesha was named in discovery.
Appellant knew of his conversations with Roniesha relative to this case.
Under the third Parson factor, we find that appellant has failed to
demonstrate that he was prejudiced by the admission of the evidence. Appellant
mainly contends that the evidence was irrelevant. At the trial court level, he also
contended that it was prejudicial because the references to “jail” in the evidence
would alert the jury that he was incarcerated. However, the trial court “cured” that
potential prejudice by having the state redact references to “jail.” The calls were
referred to as “recorded conversations.” And that he wanted to get in contact with
Roniesha “to check her temperature” was relevant.
Because none of the Parson factors were met, we conclude that the
trial court did not abuse its discretion in admitting Roneisha’s social media
messages and calls into evidence.
Regarding relevance, Evid.R. 401 defines “relevant evidence” as
“evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Generally, relevant evidence is admissible, and
irrelevant evidence is inadmissible. Evid.R. 402. “[T]he question of whether
evidence is relevant is ordinarily not one of law but rather one which the trial court
can resolve based on common experience and logic.” State v. Lyles, 42 Ohio St.3d
98, 99, 537 N.E.2d 221 (1989).
Evid.R. 403(A) provides that “[a]lthough relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” For the purpose of
Evid.R. 403(A), emphasis must be placed on the word “unfair” because “‘if unfair
prejudice simply meant prejudice, anything adverse to a litigant’s case would be
excludable.’” State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302,
¶ 24, quoting Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d
890 (2001). Thus, “‘[u]nfair prejudice is that quality of evidence which might result
in an improper basis for a jury decision.’” Crotts at id., quoting Oberlin at id.Evidence may be unfairly prejudicial if it “‘arouses the jury’s emotional sympathies,
evokes a sense of horror, or appeals to an instinct to punish.’” Crotts at id., quoting
Oberlin at id. Because fairness is subjective, the determination of whether evidence
is unfairly prejudicial is left to the sound discretion of the trial court. Crotts at ¶ 25,
citing State v. Robb, 88 Ohio St.3d 59, 723 N.E.2d 1019 (2000).
Other pieces of evidence appellant challenges relate to his interaction
with codefendant Minor. First, he challenges exhibit No. 13, which was a two-
minute call codefendant Minor made to his mother. At the time, Minor was in jail
on this case and appellant had not yet been arrested. During the call, Minor told his
mother that appellant said he would post his bond. Second, appellant challenges
two letters that he sent to Minor while they both were incarcerated, exhibit Nos. 16
and 17. In both letters appellant (1) questioned Minor saying that he was “playing
with his life”; (2) said he was being advised to plea to “25 to life”; (3) said his lawyers
were telling him that Minor was going to “write a statement against” him; (4) said
he was “loyalty over everything”; and (5) said he had seen the evidence and it was
not “sh**.” Minor testified that he believed appellant was concerned he would testify
against him, and appellant was warning him to keep quiet.
Upon review, the trial court did not abuse its discretion in allowing
the two-minute call Minor made to his mother or the letters appellant sent to Minor
while he and Minor were incarcerated. Collectively, the evidence was relevant
because it tended to show appellant’s investment in the case — and, specifically,
investment beyond concern for a friend. Rather, it tended to show that appellant
was invested in protecting his own self- interests.
Also relevant were the calls in which appellant instructed Mariah to
reach out to his ex-girlfriend, Roniesha, who was his girlfriend at the time of the
incident, because he wanted her phone number. According to the calls he made to
Mariah, appellant wanted to “check her [Roniesha’s] temperature” because he saw
her name “popped up” in discovery and he wanted to know why. Again, this
evidence was relevant because it showed appellant’s investment in the case —
specifically, his investment in protecting his own self- interests.
The above-mentioned evidence was appellant’s own statements or
statements made on his behalf. It was relevant and probative. Further, the
probative value of the evidence was outweighed by any prejudice. We note in
particular that the state referred to the calls as “recorded conversations” rather than
jail calls and redacted reference to appellant being in jail in the Facebook messages.
On this record, the first assignment of error is overruled.
Sufficient Evidence Supports the Convictions
In his second assignment of error, appellant contends that the trial
court erred in denying his Crim.R. 29 motion for judgment of acquittal.
Sufficiency is a question of law. State v. Thompkins, 78 Ohio St.3d
380, 386, 678 N.E.2d 541 (1997); State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d
668 (1997). If the state’s evidence is found to have been insufficient as a matter of
law, then on appeal, the court may reverse the trial court. Thompkins, at paragraph
three of the syllabus, citing Ohio Constitution, Article IV, Section 3(B)(3).
Under this construct, the state would have failed in its burden of production, and as
a matter of due process, the issue should not even have been presented to the jury.
Thompkins at 386; Smith at id.“An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard,
an appellate court does not conduct an exhaustive review of the record, or a
comparative weighing of competing evidence, or speculation as to the credibility of
any witnesses. Instead, the appellate court presumptively “view[s] the evidence in
a light most favorable to the prosecution.” Jenks at id.Appellant first claims that the convictions are not supported by
sufficient evidence because of the lack of forensic evidence, especially in light of
Minor’s testimony that appellant was covered in blood when he got in his car after
the shooting and the police had access to the car. Forensic evidence is not a
prerequisite to a murder conviction, however. See State v. Gardner, 8th Dist.
Cuyahoga No. 111506, 2023-Ohio-307, ¶ 40. Minor identified appellant as the
shooter and that identification alone was sufficient evidence as to the counts relative
to Jumah. Appellant’s contention that Minor’s “testimony was self-serving and not
credible” is not proper grounds for a sufficiency review. We reiterate that we do not
speculate on witness credibility under a sufficiency-of-the evidence review. Jenks at
id.Appellant next insinuates that the evidence was insufficient to support
the aggravated robbery charges relative to Muzamil and Osman because nothing
was taken from them. The statute under which appellant was indicted,
R.C. 2911.01(A)(1), provides that “[n]o person, in attempting or committing a theft
offense * * * shall * * * [h]ave a deadly weapon on or about the offender’s person or
under the offender’s control and either display the weapon, brandish it, indicate that
the offender possesses it, or use it.” (Emphasis added.) The evidence was sufficient
to establish that appellant and Minor attempted to rob Muzamil and Osman while
appellant had a gun.
The evidence was also sufficient to support the conviction against
appellant for the fatal shooting of Jumah. Minor’s testimony as follows was
sufficient: (1) appellant had a gun and when they entered the apartment complex
and he did not see Jumah with a gun, (2) he, appellant, and Jumah were the only
three in that area, (3) he heard gunshots as he ran away, and (4) appellant followed
him to his car, was covered in blood, and said, “I didn’t mean to do it.”
We are not persuaded by appellant’s contention that the identification
of appellant as the shooter was faulty because Minor was the only person who
identified him. The jury was afforded the opportunity to compare Minor’s in-court
identification of appellant with the video surveillance identifications of him.
Although the other witnesses were unable to identify appellant because he covered
his face both times, he was at the apartment complex on the day in question and
they were able to give a general description — exclusive of his face — of him for the
jury.
Other evidence presented by the state was sufficient to sustain the
convictions. For example, forensic evidence from Minor’s cellular and Google
accounts, compared with appellant’s Google account information, demonstrated
that both men’s devices were together throughout the day and evening in question.
Further, later that evening after the fatal shooting of Jumah, appellant messaged
Roniesha, his girlfriend at the time, and indicated that he had “gotten into
something” that he could not talk about, and that he needed her. When he found
out that Roniesha’s name was mentioned in his discovery, he had Mariah contact
her to “take her temperature.”
The state presented sufficient evidence to support the convictions; the
second assignment of error is therefore overruled.
Convictions not against the Manifest Weight of Evidence
In his third assignment of error, appellant challenges his convictions
as being against the manifest weight of the evidence.
Manifest weight is a question of fact. Thompkins, 78 Ohio St.3d at
387, 678 N.E.2d 541. If the trial court’s judgment is found to have been against the
manifest weight of the evidence, then an appellate panel may reverse the trial court.
Id. Under this construct, the appellate court “sits as the ‘thirteenth juror’ and
disagrees with the jury’s resolution of the conflicting testimony.” Id.In a manifest weight analysis, an appellate court “reviews the entire
record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and * * * resolves conflicts in the evidence.” Id. “A court reviewing
questions of weight is not required to view the evidence in a light most favorable to
the prosecution, but may consider and weigh all of the evidence produced at trial.”
Id. at 390 (Cook, J., concurring). “The weight to be given the evidence and the
credibility of witnesses are primarily for the trier of the facts.” State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
An appellate court may not merely substitute its view for that of the
jury but must find that “the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.”
Thompkins at 387; see also id. at 390 (Cook, J., concurring) (stating that the “special
deference given in a manifest-weight review attaches to the conclusion reached by
the trier of fact.”). Accordingly, reversal on manifest weight grounds is reserved for
“the exceptional case in which the evidence weighs heavily against the conviction.”
Id. at 387.
In this assignment of error is where we can consider appellant’s attack
of Minor’s credibility. The jury heard all about his credibility issues: that he was a
known drug dealer with a criminal history, that he claimed he did not use or own
guns since his release from prison in April 2021, yet he purchased a gun from the
maintenance man at the apartment complex, and that the state was going to
recommend a six-year sentence as part of a plea bargain for his part in this case. The
jury chose to believe Minor — not an incredible result given the other evidence
against appellant. That other evidence included statements appellant made or were
made on his behalf and forensic digital evidence demonstrating that appellant and
Minor were together for most of the day and evening in question. Included in the
statements appellant made on the evening of the incident, after the shooting, were
that he had “gotten into something” that he could not talk about. And included in
the digital evidence were searches appellant conducted the day after the shooting to
memorial pages for homicide victims.
Appellant also claims in this assignment of error that the video
surveillance evidence was not properly authenticated and that a proper chain of
custody was not established.
Evid.R. 901 provides for the authentication or identification of
evidence prior to its admissibility. It provides in relevant part that “the
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” Evid.R. 901(A). “The authentication requirement of
Evid.R. 901(A) is a low threshold that does not require conclusive proof of
authenticity, but only sufficient foundation evidence for the trier of fact to conclude
that the evidence is what its proponent claims it to be.” State v. Toudle, 8th Dist.
Cuyahoga No. 98609, 2013-Ohio-1548, ¶ 21, citing Yasinow v. Yasinow, 8th Dist.
Cuyahoga No. 86467, 2006-Ohio-1355, ¶ 81.
In this case, multiple witnesses testified about the video evidence,
either because they were in the footage or had knowledge of what the footage
purported to be. On this record, the evidence was properly authenticated.
We likewise do not find a chain-of-custody issue. As a general matter,
“‘the state [is] not required to prove a perfect, unbroken chain of custody.’” State v.
Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 57, quoting State v.
Keene, 81 Ohio St.3d 646, 662, 693 N.E.2d 246 (1998). “‘A strict chain of custody is
not always required in order for physical evidence to be admissible.’” Id., quoting
State v. Wilkins, 64 Ohio St.2d 382, 389, 415 N.E.2d 303 (1980).
Here, the investigating detective obtained the video surveillance at the
start of his investigation. The detective then gave the evidence to the special agent
when he became involved in the investigation. The special agent testified at trial
about how law enforcement came into possession of the evidence. On this record,
the state established a proper chain of custody.
In light of the above, this is not the exceptional case in which the
evidence weighs heavily against the conviction. Appellant’s third assignment of
error therefore overruled.
Appellant’s Speedy Trial Rights were not Violated
In his fourth assignment of error, appellant contends that his right to
a speedy trial was violated.
Criminal defendants are guaranteed the right to a speedy trial under
both the state and federal constitutions. Ohio Constitution, Article I, Section 10; the
Sixth Amendment to the U.S. Constitution. “Speedy-trial provisions are mandatory,
and courts must strictly enforce them.” State v. Parker, 113 Ohio St.3d 207, 2007-
Ohio-1534, 863 N.E.2d 1032, ¶ 15.
Ohio has codified defendants’ speedy-trial guarantees in R.C. 2945.71.
Under R.C. 2945.71(C)(2), a person charged with a felony must be tried within 270
days from arrest. Each day that a defendant is held in jail in lieu of bond is counted
as three days. R.C. 2945.71(E). Therefore, the statute’s triple-count provision
requires the state to try jailed defendants within 90 days from arrest. State v.
Henderson, 1st Dist. Hamilton No. C-100021, 2010-Ohio-5730, ¶ 9.
Under R.C. 2945.72, the time limit may be extended by certain events,
however. Relevant here, the statute provides:
The time within which an accused must be brought to trial, or, in the
case of felony, to preliminary hearing and trial, may be extended only
by the following: * * * (B) Any period during which * * * the accused’s
mental competence to stand trial is being determined * * *; * * * (E)
Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by the
accused; * * * (G) Any period during which trial is stayed pursuant to
an express statutory requirement, or pursuant to an order of another
court competent to issue such order; [or] (H) The period of any
continuance granted on the accused’s own motion, and the period of
any reasonable continuance granted other than upon the accused’s own
motion.
R.C. 2945.72.
Initially, we note that, despite appellant, pro se, raising speedy trial
several times, the trial court only made one speedy trial determination because,
other than the one time, it was either never raised by counsel or improperly raised
by appellant when he was represented by counsel and his counsel never joined in his
motions. Criminal defendants are not entitled to “hybrid” representation. That is,
defendants represented by counsel may not act simultaneously as their own counsel.
State v. Ojile, 1st Dist. Hamilton No. C-200340, 2021-Ohio-2955, ¶ 9. Therefore,
other than one challenge when appellant was properly proceeding pro se, he had no
right to file motions to dismiss and the trial court was prohibited from entertaining
them. State v. Castagnola, 9th Dist. Summit Nos. 28621, 28672, and 28702, 2018-
Ohio-1604, ¶ 14.
We find no merit to the one properly raised challenge. The delay in
this case was overwhelmingly attributed to appellant’s constant change of counsel,
which then necessitated new counsel getting “up to speed” on the case. Further,
appellant’s pro se motions qualified as tolling events under R.C. 2945.72(E) for
purposes of calculating speedy trial time. See State v. Miller, 9th Dist. Lorain
No. 10CA009922, 10CA009915, 2012-Ohio-1263, ¶ 13. This is so, because absent at
least a cursory review of the pro se motion, it would not be possible to determine
whether defense counsel joined in the motion or indicated some need for the relief
the defendant sought. State v. Davis, 10th Dist. Franklin No. 05AP-193, 2006-Ohio-
5039, ¶ 12. Moreover, the case was tolled for a period of time pursuant to the
common pleas court’s administrative orders in dealing with the Covid-19 pandemic.
See State v. Tuttle, 8th Dist. Cuyahoga No. 110508, 2022-Ohio-303, ¶ 31; State v.
Virostek, 8th Dist. Cuyahoga No. 110592, 2022-Ohio-1397, ¶ 92; State v. Quinn,
8th Dist. Cuyahoga No. 110692, 2022-Ohio-2038, ¶ 36, and In re C.C., 2022-Ohio-
2264, 192 N.E.3d 1203, ¶ 37 (8th Dist.). The case was also tolled because of
appellant’s failure to respond to the state’s discovery request.
On this record, we find no violation of appellant’s right to a speedy
trial. The fourth assignment of error is overruled.
Trial Counsel was not Ineffective
For his fifth assigned error, appellant contends that his trial counsel
was ineffective by not objecting to certain trial testimony and not objecting to the
video evidence.
In order to establish a claim of ineffective assistance of counsel, the
applicant must demonstrate that counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989); State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996).
First, appellant contends that counsel was ineffective for not objecting
to hearsay testimony elicited from Minor; specifically, testimony about the firearm
he purchased from the maintenance man. Hearsay is defined as “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Evid.R. 801(C). In general,
hearsay is not admissible. Evid.R. 802.
A careful review of the testimony regarding Minor’s purchase of
appellant’s stolen gun from the maintenance man does not reveal hearsay
testimony. The relevant testimony was as follows:
[Assistant prosecutor]: After [appellant] told you that that was his gun,
did it then look familiar?
[Minor]: Yes.
[Assistant prosecutor]: Now, did you ask the maintenance man where
he got it from?
[Minor]: Yes.
[Assistant prosecutor]: Did you relay what the maintenance man told
you to appellant?
[Minor]: Yes.
[Assistant prosecutor]: Okay. So based on what [appellant] learned
from you, did you guys talk about the theft of this gun?
[Minor]: Yes.
Tr. 721.
The record demonstrates that Minor did not testify as to what the
maintenance man told him about the stolen gun. Thus, counsel was not ineffective
for not objecting to the testimony — it was not hearsay testimony.
Second, appellant contends that because there were issues with
authentication and chain of custody with the video evidence, had counsel objected,
it most likely would not have been admitted. For the reasons already discussed,
there was sufficient evidence to authenticate the evidence and establish its chain of
custody. As such, counsel was not ineffective for not objecting to it.
The fifth assignment of error is overruled.
Denial of Involuntary Manslaughter Jury Instruction was not an Abuse
of Discretion
In appellant’s sixth assignment of error, he contends that the trial
court abused its discretion by denying his request for an involuntary manslaughter
instruction.
Trial courts have broad discretion in determining whether the
evidence adduced at trial was sufficient to warrant a jury instruction. State v.
Morris, 5th Dist. Guernsey No. 03CA29, 2004-Ohio-6988, ¶ 55, rev’d on other
grounds, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174; State v. Mitts, 81
Ohio St.3d 223, 228, 690 N.E.2d 522 (1998). “When reviewing a trial court’s jury
instructions, the proper standard of review for an appellate court is whether the trial
court’s refusal to give a requested instruction constituted an abuse of discretion
under the facts and circumstances of the case.” State v. Sims, 8th Dist. Cuyahoga
No. 85608, 2005-Ohio-5846, ¶ 12, citing State v. Wolons, 44 Ohio St.3d 64, 541
N.E.2d 443 (1989). A trial court does not abuse its discretion by not giving a jury
instruction if the evidence is insufficient to warrant the requested instruction. State
v. Lessin, 67 Ohio St.3d 487, 494, 620 N.E.2d 72 (1993).
The Ohio Supreme Court has stated the following relative to
instructing a jury on a lesser included offense:
A criminal defendant is entitled to a lesser-included-offense instruction
[ ] only where the evidence warrants it. Thus, the trial court’s task is
two fold: first, it must determine what constitutes a lesser included
offense of the charged crime; second, it must examine the facts and
ascertain whether the jury could reasonably conclude that the evidence
supports a conviction for the lesser offense and not the greater.
(Citations omitted.) State v. Kidder, 32 Ohio St.3d 279, 280, 513 N.E.2d 311 (1987).
Involuntary manslaughter is a lesser included offense of aggravated
murder. State v. Thomas, 40 Ohio St.3d 213, 215, 533 N.E.2d 286 (1988). Thus, we
consider the second step for determining whether an involuntary manslaughter
instruction should have been provided, that is, whether the evidence not only
supported an acquittal on the initial crime, but also supported a conviction on the
lesser included offense. An instruction on a lesser included offense is not required
simply because some evidence of a lesser included offense is advanced. State v. Hill,
8th Dist. Cuyahoga No. 87645, 2006-Ohio-6425, ¶ 32.
No testimony or evidence presented at trial supported an involuntary
manslaughter instruction. Appellant’s defense at trial was that Minor was lying and
appellant was not involved or present on the scene for either the aggravated
robberies or the deadly shooting. Appellant’s defense that he was not even present
at the scene for the crimes undercuts his request for an involuntary manslaughter
instruction. See, e.g., State v. Smith, 8th Dist. Cuyahoga No. 100204, 2014-Ohio-
2057, ¶ 56 (Counsel was not ineffective for not requesting a lesser-included
instruction because the defendant’s theory of the case was that he acted in defense
of himself and another, which counsel could have logically decided was inconsistent
with requesting a jury instruction on aggravated assault.).
The sixth assignment of error is overruled.
The Record Supports the Imposition of Consecutive Sentences
In his final assignment of error, appellant contends that that record
does not support the trial court’s findings for the imposition of consecutive
sentences.
Under R.C. 2929.14(C)(4), a trial court may order prison terms to be
served consecutively if it finds “the consecutive service is necessary to protect the
public from future crime or to punish the offender and that consecutive sentences
are not disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public.” Further, the court must also find any of
the following:
The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4).
There are two ways a defendant can challenge consecutive sentences
on appeal. First, the defendant can argue that consecutive sentences are contrary to
law because the court failed to make the findings required by R.C. 2929.14(C)(4).
See R.C. 2953.08(G)(2)(b); State v. Reindl, 8th Dist. Cuyahoga Nos. 109806,
109807, and 109808, 2021-Ohio-2586, ¶ 13; State v. Nia, 2014-Ohio-2527, 15
N.E.3d 892, ¶ 16 (8th Dist.). Second, the defendant can argue that the record “clearly
and convincingly” does not support the court’s findings made pursuant to
R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Reindl at id.Appellant does not contend that the trial court did not make the
required statutory findings and our review demonstrates that the court in fact did.
Rather, appellant argues that the record does not support the findings.
In addressing this assignment of error, we review the record and consider whether
it does not support the trial court’s consecutive-sentence findings. State v. Trujillo,
8th Dist. Cuyahoga No. 112442, 2023-Ohio-4125, citing State v. Gwynne, Slip
Opinion No. 2023-Ohio-3851, ¶ 5.
Upon review, we are not able to say that the record “clearly and
convincingly” does not support the court’s findings. The record demonstrates, as
found by the trial court, that the robberies and murder were committed as part of a
course of conduct and the harm caused by the crimes was so great or unusual that
no single prison term for the offenses would adequately reflect the seriousness of
appellant’s conduct.
The seventh assignment of error is overruled.
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.
_______________________
MICHAEL JOHN RYAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR