State v. Byrd ( 2024 )

[Cite as State v. Byrd, 2024-Ohio-2134.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
SAMUEL LEWIS BYRD,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 23 MA 0029
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2022 CR 00382
BEFORE:
Katelyn Dickey, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Gina DeGenova, Mahoning County Prosecutor, and Atty. Edward A. Czopur,
Assistant Prosecuting Attorney, for Plaintiff-Appellee and
Atty. John P. Laczko, for Defendant-Appellant.
Dated: May 30, 2024
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DICKEY, J.
{¶1} Appellant, Samuel Lewis Byrd, appeals his conviction for one count of
aggravated murder in violation of R.C. 2903.01(A) and R.C. 2929.02(A) (prior calculation
and design), an unclassified felony, with a three-year firearm specification pursuant to
R.C. 2945.145(A), following a jury trial in the Mahoning County Court of Common Pleas.
In the early morning hours of June 15, 2022, Appellant, who was 68 years of age on that
date, fatally shot 29-year-old father of four, Keimone Black (“Black”), at the Shell station
on South Avenue near Interstate 680 in Youngstown, Ohio.
{¶2} The indictment also charged Appellant with one count of having a weapon
while under disability in violation of R.C.2923.13(A)(1)(B), a felony of the third degree,
and sought a sentencing enhancement based on the repeat violent offender specification
pursuant to R.C. 2941.149(A). The weapon charge and the violent offender specification
were severed prior to trial, then dismissed by the state after the jury rendered its verdict.
{¶3} Appellant advances four assignments of error. In his first and second
assignments of error, he challenges the sufficiency and the weight of the evidence
supporting his conviction. In his third assignment of error, he argues he received
ineffective assistance of counsel. In his final assignment of error, he asserts the trial court
abused its discretion when it instructed the jury on flight as evidence of consciousness of
guilt. For the following reasons, Appellant’s conviction is affirmed.
FACTS AND PROCEDURAL HISTORY
{¶4} In addition to thirteen other witnesses, three eyewitnesses – James Davis
(“Davis”), Jesse Shiflett (“Shiflett”), and Darren Boatwright (“Boatwright”), testified at trial
on behalf of the state. None of them identified Appellant as the assailant. Further, the
state did not offer evidence of Appellant’s motive to commit the crime, and did not
establish that any relationship existed between Appellant and Black prior to Black’s
murder.
{¶5} Davis, a lifelong friend of Black, testified that Black retrieved Davis from
work around 11:00 p.m. on June 14, 2022. Black was driving Davis’ Lincoln MKZ, which
was a common occurrence because Davis typically worked very long hours.
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{¶6} The friends bounced between two nightclubs that evening (Kings Court and
Vibez) before deciding to attend an after-hours house party located near the Shell station.
Davis described the evening as “all laughs and good times.” (Trial Tr., p. 258.) He denied
there was any “beef” between himself and anyone else that evening, or Black and any
other person.
{¶7} Davis and Black purchased food at Kings Court, then Black stopped at the
Shell station to eat and pass the time before the men attended the house party, which
was scheduled to begin at 3:00 a.m. Davis, who was tired from a long day’s work, fell
asleep in the front passenger seat before they arrived at the Shell station, but told Black
to wake him up when “[they] were ready to make the next move.” (Id., p. 250.) The MKZ
was parked at gasoline pump number 4 (of 8) facing South Avenue.
{¶8} Davis testified he and Black often stopped at the Shell station after the local
nightclubs closed, unless Davis had to report for work early the next morning. Tiffany
Woolacott, a cashier at the Shell station at the time of the murder, testified a “rowdy
crowd” assembled there between 2:45 and 3:45 a.m. after the nightclubs closed. (Id., p.
267.) She further testified the customer entrance to the convenience store is triple-locked
at midnight, which limits customer access to two drive-up/walk-up windows.
{¶9} Because Davis was asleep, he did not testify to the specific time he and
Black arrived at the Shell station, or the amount of time that elapsed between their arrival
at the Shell station and the events giving rise to this appeal. However, Davis speculated
the MKZ was parked at the gasoline pump “somewhere between 30 and 45 minutes, with
the time the bar let out to – because [they] stayed until closing, which was around 2:00.”
(Id. at 259). Davis testified he did awaken briefly at some point while parked at the
gasoline pump, but he did not notice the time. He provided no explanation why the MKZ
was parked at the gasoline pump.
{¶10} Davis testified he and Black did not have a specific pre-designed plan for
the evening. In other words, they did not plan earlier in the day to go to the Shell station
at approximately 3:02 a.m.
{¶11} At that time, Davis was awakened by a “loud bang,” and then heard bullets
striking the vehicle and shattering glass. (Id. at 251). Davis turned and saw Black “pretty
much rolling out of the vehicle.” (Id. at 252). Davis fled from the vehicle on foot and tried
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to enter the convenience store, however the entrance doors were locked. Instead, Davis
took cover behind a small brick wall, where he steadied himself then called emergency
services. When Davis returned to the vehicle, he discovered Black had suffered four
gunshot wounds to the right side of his body, including a fatal shot to his chest. Officers
at the scene described Davis as “hysterical.” (Id. at 254).
{¶12} Shiflett was a customer at the Shell station at the time of the shooting.
Shiflett testified he was sitting in the driver’s seat in his automobile at gasoline pump
number 6 (facing the convenience store). Shiflett was playing with his mobile telephone
while waiting for his companion, Dan Peterman (“Peterman”), to pre-pay for gasoline.
Peterman was standing at one of the walk-up windows at the convenience store.
{¶13} Shiflett noticed a hooded figure walk from the rear of Shiflett’s vehicle
around the driver’s side to the front of his vehicle. As the hooded man walked past the
driver’s side, he looked directly into the driver’s side window at Shiflett. Shiflett described
the man as black, balding, with a peppered beard, and at least fifty years of age. Because
of the raised hood, Shiflett could not determine whether the man was simply balding or
completely bald.
{¶14} After turning to walk in front of Shiflett’s vehicle, the hooded man reached
in his waistband with his right hand and removed a handgun. Shiflett testified he was
“fully attentive” to the man with the gun, as he watched the hooded man walk over to the
MKZ and shoot the driver through the passenger side window. (Id. at 284). Shiflett heard
seven or eight shots fired. Seven spent shell casings were recovered from the crime
scene.
{¶15} Footage from a surveillance camera located on top of the convenience store
captured the crime. Two vehicles in addition to the MKZ and Shiflett’s automobile are in
the gasoline bay: a cream-colored automobile at gasoline pump number 5 (facing the
convenience store), and a white automobile at gasoline pump number 8 (facing South
Avenue). The cream-colored automobile is between the MKZ and Shiflett’s automobile
and the driver’s side door of the cream-colored automobile is open the entire time.
{¶16} The white vehicle pulls into the gasoline bay at 03:01:29. The hooded man
appears in frame at 3:01:50 walking from the northern side street, Dickson Street, toward
the convenience store customer entrance. He leaves the frame, but footage from another
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surveillance camera located inside the convenience store depicts the hooded man
attempting to enter the convenience store, only to discover the customer service entrance
doors are locked.
{¶17} He returns to the frame and walks directly past the passenger side of the
MKZ. He turns his head and looks into the passenger side window as he passes. He
turns right and walks behind the cream-colored automobile, past the pump, behind
Shiflett’s automobile (both are facing the convenience store), then he turns and walks
past the driver’s side of Shiflett’s automobile. He turns his head and looks directly into
the driver’s side window.
{¶18} As the hooded man turns to walk in front of Shiflett’s vehicle toward the
MKZ, he draws a handgun from his waistband with his right hand. Immediately after the
armed man approaches the front passenger side door of the MKZ, Shiflett starts his
engine, makes a u-turn, and pulls out of the gasoline bay toward South Avenue, stopping
at the boundary of the Shell station and the street.
{¶19} In the midst of firing seven or eight shots into the passenger side window of
the MKZ (which is open half of the way), the gunman turns and begins to flee. As a
consequence, three of the bullets are found in the back passenger side door. The 9 mm
handgun used to kill Black was never recovered.
{¶20} The gunman runs toward Dickson Street, leaving the frame at 3:02.46. The
driver of the cream-colored automobile closes his driver’s side door and pulls out toward
the southern side street. The white automobile, which is farthest from the MKZ does not
move.
{¶21} Davis runs from the vehicle as Shiflett, who appears to have seen the
gunman flee the scene, backs up and returns to the Shell station in order to find Peterman.
Shiflett pulls into a parking space and can be heard yelling, “Dan!”
{¶22} Davis returns to the MKZ to discover his fatally wounded friend. Davis
crawls through the driver’s side door to retrieve something from the MKZ, then runs back
out of frame. The white automobile slowly pulls toward, then past, the MKZ, and exits
south to South Avenue.
{¶23} Boatwright, the owner of the house next to the Shell station on Dickson
Street, testified he installed six exterior surveillance cameras around his residence. The
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feeds appear on a television monitor in Boatwright’s kitchen. Boatwright’s surveillance
system time stamp is behind roughly 1:03:00.
{¶24} Boatwright was awake when the fatal shooting occurred. Prior to the
shooting, Boatwright noticed on the television monitor that an automobile pulled into his
neighbor’s driveway. He watched as a person exited from the passenger side of the
automobile. The driver disabled the lights, then pulled out onto the street, and parked
there.
{¶25} Boatwright watched the events on his television monitor in real time, as the
person who exited the automobile walked to the Shell station. Hearing gunshots,
Boatwright walked to his front porch, where he witnessed a “white guy” (Peterman) then
a “black guy” running from the Shell station. (Id. at 352-354). Surveillance footage from
the Shell station depicts Peterman running toward Dickson Street as the gunshots ring
out, and the gunman following shortly thereafter. Boatwright then watched the “black guy”
enter the front passenger side door of the parked automobile and the automobile drive
away. (Id. at 355-356).
{¶26} One of Boatwright’s surveillance cameras was trained on the driveway next
to his residence. The footage from that camera captured the vehicle entering the
neighbor’s driveway at 1:59:00. The vehicle had no front passenger-side hubcap.
{¶27} Peterman, who fled from the crime scene down Dickson Street, sprints past
Boatwright’s house at 2:01:25. Eleven seconds later, the assailant walks past the house
at 2:01:36.
{¶28} Lieutenant Robert Gentile and Detective Tony Vitullo of the Youngstown
Police Department (“YPD”), were assigned to the murder investigation and reviewed the
Shell station surveillance footage. Lieutenant Gentile explained he had the ability on his
computer at the police station to “zoom in at different angles” and “slow [the footage] down
frame by frame.” With this technology, Lieutenant Gentile recognized Appellant as the
gunman. (Id. at 590).
{¶29} Lieutenant Gentile was familiar with Appellant from his previous
investigation of Anjuan Whitfield, who entered a guilty plea to manslaughter after fatally
shooting a fourteen-year-old boy on January 13, 2022. As a result of the Whitfield
investigation, Lieutenant Gentile was acquainted with Appellant’s wife, Judy, who lived at
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55 Ensley Drive in Campbell, Ohio as well as Appellant’s girlfriend, Katrina Haskins
(Whitfield’s mother), who resided at 812 E. Avondale Avenue on the south side of
Youngstown.
{¶30} Lieutenant Gentile testified he recognized Appellant because he “walk[s] a
certain way” and “has an issue with his left wrist.” (Id. at 593). Lieutenant Gentile
observed in the surveillance footage that the assailant’s left hand was curled up by his
chest or the midsection of his body. Lieutenant Gentile further observed the assailant
wore a wedding band on his left hand.
{¶31} Detective Vitullo noted the gunman had a cigarette in his mouth during the
shooting. As a consequence, he searched the crime scene and discovered a discarded
cigarette on the sidewalk where the getaway vehicle had been parked. Investigators
retrieved the cigarette, which Detective Vitullo deduced was recently discarded as it was
not weathered or trampled. Subsequent testing revealed Appellant’s DNA on the
cigarette. (Id. at 619).
{¶32} After identifying the getaway vehicle as a dark-colored Dodge Stratus
manufactured between 1995-1999, a radius search of the surrounding five counties
produced five results for a Dodge Stratus manufactured during that time frame. However,
there was only one result for a Stratus that was dark in color. The vehicle captured in
Boatwright’s surveillance footage had no front passenger-side hubcap.
{¶33} The same automobile was the subject of a traffic report, which detailed an
accident that occurred at the intersection of East Avondale Avenue and Gibson Street.
At the time of the accident, the automobile was titled to Anjuan Whitfield, who resided at
812 E. Avondale Avenue, Katrina Haskins’ address.
{¶34} Further investigation yielded the Dodge Stratus in question, which was
missing the front passenger-side hubcap. The automobile was currently titled to a William
Huffman, whose DNA was found on the driver’s side of the vehicle. However, Appellant’s
DNA was not found in the passenger seat.
{¶35} Investigators visited the residence of Judy Byrd. She informed them that
Appellant was employed at the Wal-Mart in Boardman, Ohio. Judy confirmed Appellant
was off on Tuesday and Wednesday (the crime occurred at roughly 3:00 a.m. on
Wednesday morning) of the then-current week.
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{¶36} Investigators travelled to Wal-Mart and met with Jessica Straley, an asset
protection manager, who supplied surveillance footage from both the interior and parking
lot of the Boardman Wal-Mart. While viewing the Wal-Mart video, investigators confirmed
Appellant wore a brace on his left wrist. He also appeared to be wearing the very same
shoes (a dark mesh oxford with a thin light-colored sole) as the assailant in the Shell
station surveillance footage.
{¶37} Through a conversation with Katrina Haskins, investigators learned
Appellant was staying at the Boardman Inn. Appellant’s automobile, a maroon Kia
Sorento, was at Haskins’ 812 E. Avondale address.
{¶38} Search warrants were executed at Judy’s Ensley Drive address and
Appellant’s motel room. The searches did not yield any physical evidence of the crime.
{¶39} Officer Christopher Staley, the supervisor of the neighborhood response
unit for YPD, which focuses on criminal interdiction, testified at trial. The neighborhood
response unit coordinated with the detective division to apprehend Appellant at the
Boardman Inn on June 17, 2022. While detectives were waiting for a search warrant for
Appellant’s motel room, Detective Sergeant Michael Cox, who was watching a live feed
video from the motel complex, reported Appellant was entering a taxicab. As a
consequence, the taxicab was surrounded and Appellant was forcibly removed.
{¶40} Lieutenant Gentile and Detective Sergeant Seann Carfolo conducted an
interview with Appellant at the police station that same day (Friday). Appellant was
wearing the same dark mesh oxfords with the thin light-colored soles. He was lethargic
and yawned throughout the entire two-and-a-half-hour interview.
{¶41} After characterizing himself as a “veteran of the streets” at the outset of the
interview, Appellant asked why he was being interviewed by homicide detectives.
Lieutenant Gentile told Appellant that he had been captured “on video, shooting
somebody” and asked Appellant if he was solicited to commit the crime. Appellant
claimed he had a doppelganger named “Charlie Robinson” and people thought they were
either brothers or twins. Appellant did not accuse Charlie Robinson of the crime, however
Appellant speculated the individual in the video must simply resemble him.
{¶42} Lieutenant Gentile asked if Charlie Robinson had the same shoes as
Appellant. Appellant responded by warranting that there was no blood on his shoes,
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because he “ain’t shot nobody.” At the time, Appellant was not made privy to specific
details surrounding Black’s murder.
{¶43} Lieutenant Gentile explained “there are sixteen exterior cameras,” and
“cameras at the front door” at the gas station where the crime occurred, as well as
“cameras on the streets next to it.” He further explained the various videos were “so good,”
the viewer could see Appellant, his shoes, his wedding ring, the way he walks, the way
he carries himself, as well as Appellant entering the getaway car.
{¶44} Thirty minutes into the interview, Appellant was given permission to smoke
a cigarette. Investigators informed Appellant that he allowed the cigarette to dangle from
his lips in the same manner as the assailant on the Shell station surveillance footage.
Appellant asked if investigators collected a cigarette butt at the scene, and further, if they
found his DNA.
{¶45} At one point during the interview, Appellant removed the brace from his left
wrist, revealing that he suffers from the same physical defect as the assailant. Appellant
also wore a wedding band on his left hand.
{¶46} Appellant stated he did not know “the guy what they said on the news.”
(Redacted Interview at 39:23.) When asked what he meant, Appellant said the television
news had reported for the last couple of days that the victim was a young guy “in his early
thirties or something”, and he was the “fortieth homicide or something” in Youngstown
that year. The state argues Appellant had not been informed of the specific shooting for
which he was accused, however Lieutenant Gentile had previously told Appellant that
“the gas station” where the crime occurred had sixteen surveillance cameras.
{¶47} When asked to explain why he was at the Boardman Inn, Appellant stated
he was there with “Anjuan’s mother and her girlfriend,” and “you know what happens at
hotels.” When asked why he did not simply carry on at Katrina Haskins’ house, Appellant
responded because “they be shooting up her fucking house up too much.” Appellant told
investigators he was leaving the Boardman Inn in a taxicab to visit friends when he was
apprehended.
{¶48} When Lieutenant Gentile asked Appellant where he was at 3:00 a.m. on
Wednesday morning, Appellant first claimed he was asleep on the sofa seat at Judy’s
residence on Ensley in Campbell. Later in the interview, when asked if there would be
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any reason he would be on the south side of Youngstown on Tuesday night, Appellant
stated he stayed overnight at Katrina Haskins’ home on East Avondale (despite his earlier
claim that it was too dangerous to stay at her house). When asked a third time, Appellant
reverted back to his original story, indicating he played cards with Judy until 1:00 or 2:00
a.m., then went to sleep on the sofa at her residence on Ensley. (Id. at 623). Mobile
telephone records establish his mobile telephone was on the lower south side of
Youngstown, in the same area as the Shell station.
{¶49} Appellant claimed he purchased gasoline in Campbell exclusively, giving as
examples, the gasoline station on Wilson Avenue and the “Shell station on McGuffey.”
Lieutenant Gentile corrected Appellant that the gasoline station on McGuffey was a BP
station. When Detective Sergeant Carfolo asked Appellant why he had “Shell on the
mind,” Appellant conceded he bought gasoline in Youngstown at the Shell station “on
South Avenue,” then Appellant quickly corrected his statement, saying “not South
Avenue, Midlothian [Boulevard].”
{¶50} Lieutenant Gentile asked Appellant if he saw “the guy in the passenger
seat.” Appellant was clearly surprised by the inquiry. Appellant slowly repeated the
question, then responded, “[t]hen I want to know one thing. Why didn’t both of them get
shot?” (Interview at 1:07:45.) Appellant was preoccupied with the existence of a
passenger in the MKZ during the remainder of the interview, but explained that his interest
was predicated upon the fact that there was no mention of a passenger in the
newscoverage.
{¶51} A lengthy hypothetical discussion followed between Lieutenant Gentile and
Appellant regarding the failure of the assailant to shoot the passenger. First, Appellant
speculated in jest the passenger must have shrunk back into the seat thinking “[the
assailant] ain’t for me.” Then, Appellant warranted, if he had been the gunman, “and there
was two guys in the truck,” the passenger would have been “collateral damage.”
{¶52} Lieutenant Gentile asked Appellant how he knew the victim was in a truck,
and Appellant replied, “[it is] on the news.” Then Lieutenant Gentile asked, “you [did not]
see [the passenger,] did you?” Appellant responded he would have had to have “x-ray
vision eyes” to see the passenger because his eyes were shut at home at the time of the
murder.
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{¶53} Next, Appellant stated “if I had did a job like that, I would have got the
passenger first, nope, [unintelligible] if he was [the] mark, I would go on the driver’s side
and then get the passenger.” (Id. at 1:10:12.) Appellant asked if the passenger was
across the street, then suggested, “if there was a passenger, bring him in here and tell
him to [identify] me.”
{¶54} Later, Appellant said, “if the passenger was there, and I came around,
speaking, and I saw a passenger, and the passenger saw me, I would go around to the
driver’s side and shoot, but if the passenger was the mark, then his ass was out.” (Sam
Byrd 2 at 21:50.) Lieutenant Gentile told Appellant that he had just said something only
the shooter would know (referring to the undisclosed fact that the driver was shot from
the passenger side). A few minutes later, Appellant asked, “why didn’t [the assailant] go
over to the driver’s side to shoot. Which way did he come, did he come from the driver’s
side or the passenger side?”
{¶55} Defense counsel argued at trial that the investigation was incomplete,
because Lieutenant Gentile focused exclusively on Appellant, following Lieutenant
Gentile’s identification of Appellant on the surveillance footage. Defense counsel further
argued the state intentionally avoided collecting potentially exculpatory evidence.
{¶56} Despite surveillance footage depicting Appellant attempting to enter the
convenience store, investigators conceded they did not lift fingerprints from the customer
entrance door. Lieutenant Gentile further conceded on cross-examination that
investigators did not arrange a line-up in order to determine whether Shiflett or Boatwright
could identify Appellant. Lieutenant Gentile claimed Peterman, a fourth potential
eyewitness, refused to participate in the investigation due to fear.
{¶57} Further, Appellant’s DNA was not found on the seven shell casings
collected at the crime scene or on the passenger side of William Huffman’s Dodge
Stratus. Lieutenant Gentile testified he spoke with William Huffman, but Lieutenant
Gentile did not believe William Huffman was the getaway driver.
{¶58} With respect to another suspect, defense counsel pointed to an unidentified
man in the Boatwright surveillance footage (#6_06_R – his neighbor’s driveway), who
walks past Boatwright’s residence toward the Shell station at 1:44:45 (2:46 a.m.) The
man appears to be wearing a dark hoodie and a mask. However, the man reappears
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walking in the opposite direction at 1:45:15. The man switches direction a second time
and walks toward the Shell station at 1:46:02. Smoke billows from his mouth. The man
appears a fourth time at 1:46:46 walking away from the Shell station.
{¶59} The defense also offered a photograph of an older black man with some
grey facial hair, taken from William Huffman’s Facebook page. The man is wearing a
baseball hat, so it cannot be determined whether he is balding or bald.
{¶60} Defense counsel made an oral motion for acquittal at the close of the state’s
case, which was summarily overruled. The defense rested without offering any evidence.
Defense counsel failed to renew the Rule 29 motion until after closing arguments. As a
consequence, the trial court overruled the renewed motion.
{¶61} The jury found Appellant guilty of aggravated murder, with the
accompanying firearm specification. Appellant was sentenced to a prison term of life
without the possibility of parole, consecutive to the mandatory three (3) year term for the
firearm specification. This timely appeal followed.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE
PREJUDICE OF APPELLANT BY DENYING APPELLANT’S MOTION
FOR ACQUITTAL AS INSUFFICIENT EVIDENCE WAS PRESENTED AT
TRIAL TO SUPPORT A GUILTY VERDICT.
{¶62} Appellant was convicted of R.C. 2903.01(A), which provides, in relevant
part: “[n]o person shall purposely, and with prior calculation and design, cause the death
of another * * *.” Appellant argues the state presented insufficient evidence that he acted
with prior calculation and design.
{¶63} “Sufficiency of the evidence is a legal question dealing with adequacy.”
State v. Pepin-McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 49
(7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
“Sufficiency is a term of art meaning that legal standard which is applied to determine
whether a case may go to the jury or whether evidence is legally sufficient to support the
jury verdict as a matter of law.” State v. Draper, 7th Dist. Jefferson No. 07 JE 45, 2009-
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Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955),
reversed on other grounds. When reviewing a conviction for sufficiency of the evidence,
a reviewing court does not determine “whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.” State
v. Rucci, 7th Dist. Mahoning No. 13 MA 34, 2015-Ohio-1882, ¶ 14, citing State v. Merritt,
7th Dist. Jefferson No. 09 JE 26, 2011-Ohio-1468, ¶ 34.
{¶64} In reviewing a sufficiency of the evidence argument, the evidence and all
rational inferences are evaluated in the light most favorable to the prosecution. State v.
Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed
on the grounds of sufficiency unless the reviewing court determines no rational juror could
have found the elements of the offense proven beyond a reasonable doubt. Id. Where
reasonable minds can reach different conclusions upon conflicting evidence, the
determination as to what occurred is a question for the trier of fact. It is not the function
of the appellate court to substitute its judgment for that of the factfinder. State v. Jones,
166 Ohio St.3d 85, 2021-Ohio-3311, ¶ 27, 182 N.E.3d 1161.
{¶65} The legislature intended the element of “prior calculation and design” to
require more than mere instantaneous or momentary deliberation. State v. Kerr, 7th Dist.
Mahoning No. 15 MA 0083, 2016-Ohio-8479, ¶ 20. Prior calculation requires evidence “of
‘a scheme designed to implement the calculated design to kill’ and ‘more than the few
moments of deliberation permitted in common law interpretations of the former murder
statute.’ ” Id. Nonetheless, prior calculation and design can be found where a defendant
“quickly conceived and executed the plan to kill within a few minutes.” State v. Coley, 93
Ohio St.3d 253, 264, 754 N.E.2d 1129 (2001), citing State v. Palmer, 80 Ohio St.3d 543,
567-568, 687 N.E.2d 685 (1997).
{¶66} A finding of prior calculation and design is evaluated on appeal based on
the totality of the circumstances and on a case-by-case basis. Id. at ¶ 21. When reviewing
whether prior calculation and design is established, Ohio courts analyze several factors.
State v. Carosiello, 7th Dist. Columbiana No. 15 CO 0017, 2017-Ohio-8160, ¶ 33. These
non-exclusive factors include whether the defendant and victim knew each other, if the
relationship was strained, whether the defendant gave thought in choosing the murder
weapon or site, and whether the act was drawn out or sprung from an instantaneous
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eruption of events. Id., citing State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776
N.E.2d 26, ¶ 56-60.
{¶67} Defense counsel made an oral motion for acquittal at the close of the state’s
case without advancing any argument. The trial court opined:
The only issue here is the issue of prior calculation and design. [The Court
has] carefully examined evidence relative to that, and a trier of fact could
infer that there was prior calculation and design, but there was no direct
evidence of it. But [that is] not the test.
The test is that the Court has to construe the evidence in its most favorable
light to the state, and at this point ask and inquire whether reasonable minds
would differ.
The Court finds that they would; and, therefore, the motion is overruled.
(Trial Tr., p. 784-784).
{¶68} Appellant argues the eyewitnesses did not identify Appellant as the
assailant, and the state failed to offer any evidence of motive or a relationship between
Appellant and Black. Further, Appellant alleges the shooting was an “instantaneous
eruption of events,” rather than the result of a design or scheme, based on Davis’
testimony that there was no “beef” with any of the other nightclub patrons on the evening
of June 14, 2022.
{¶69} To the contrary, we find there is ample evidence of a scheme designed to
implement the calculated design to kill in the record. The getaway vehicle was parked
within walking distance of the crime scene, but a sufficient distance to obscure the vehicle
from the view of the Shell station patrons and surveillance cameras. Appellant, armed
with a firearm, exited the getaway vehicle after the vehicle lights were turned off, walked
through the parking lot past the MKZ, looked intently into the passenger side of the
vehicle, then surveyed the remainder of the vehicles in the gasoline bay, before returning
to the passenger side of the MKZ and firing seven shots at the MKZ. Finally, there was
no precipitating event immediately preceding the shooting.
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{¶70} Appellant correctly argues the state offered no evidence of motive or prior
relationship between the victim and assailant. Nonetheless, the evidence in the record
establishes a scheme designed to implement the calculated design to kill, which required
more than the few moments of deliberation. Accordingly, we find there is sufficient
evidence to support Appellant’s aggravated murder conviction and Appellant’s first
assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER THE
FOURTEENTH AMENDMENT DUE TO THE FACT HIS CONVICTION
FOR AGGRAVATED MURDER WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND THE JURY’S VERDICT WAS
INCONSISTENT WITH THE EVIDENCE AND TESTIMONY PRESENTED
AT TRIAL.
{¶71} Weight of the evidence concerns the effect of the evidence in inducing
belief, and appellate review evaluates “the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other.”
Thompkins, supra, 387. When a defendant claims the conviction is contrary to the
manifest weight of the evidence, the appellate court reviews the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses, and
determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215,
954 N.E.2d 596, ¶ 220, citing Thompkins at 387. Where a criminal case has been tried
by a jury, only a unanimous appellate court can reverse on the ground that the verdict
was against the manifest weight of the evidence. Thompkins at 389, citing Section
3(B)(3), Article IV of the Ohio Constitution.
{¶72} The power of the court of appeals to sit as the “thirteenth juror” is limited in
order to preserve the jury’s role with respect to issues surrounding the credibility of
witnesses and the weight of the evidence. Thompkins, 78 Ohio St.3d at 387, 389. “[T]he
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weight to be given the evidence and the credibility of the witnesses are primarily for the
trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955,
¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph
one of the syllabus. The trier of fact occupies the best position from which to weigh the
evidence and judge the witnesses’ credibility by observing their gestures, voice
inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984). “[Appellate courts] therefore generally proceed under the premise
that when there are two fairly reasonable views of the evidence or two conflicting versions
of events, neither of which is unbelievable, [the appellate court does] not choose which
one [ ] is more credible.” State v. Carter, 2017-Ohio-7501, 96 N.E.3d 1046, ¶ 105 (7th
Dist.), citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist. 1999).
{¶73} Appellant cites the lack of eyewitness identification, as well as the lack of
investigation regarding any other suspects, to conclude the jury’s verdict is not supported
by the weight of the evidence. However, there exists other compelling evidence in the
record of Appellant’s guilt.
{¶74} Lieutenant Gentile testified he had a prior relationship with Appellant, and
through the use of computer technology, Lieutenant Gentile was able to identify Appellant
based on the surveillance footage. Further, Appellant fit the description provided by
Shiflett, and suffered from a similar physical defect and wore a similar pair of shoes as
the assailant.
{¶75} During the police interview, Lieutenant Gentile commented Appellant’s
cigarette dangled from his mouth in a similar fashion to the assailant’s cigarette in the
surveillance footage. Appellant asked if a discarded cigarette was found at the scene and
if it contained his DNA. A discarded cigarette was found on the sidewalk where the
getaway car was parked, and it did contain Appellant’s DNA.
{¶76} Appellant provided conflicting stories regarding his whereabouts on the
night in question. Further, although Appellant’s DNA was not found in the passenger side
of the Dodge Stratus, the vehicle was previously associated with Katrina Haskins’ son.
{¶77} During the police interview, Appellant was rattled when he learned there
was a passenger in the MKZ. In a series of hypotheticals, Appellant appeared to reveal
his knowledge of the peculiar location of the assailant when he shot Black. Finally,
Case No. 23 MA 0029
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Appellant’s mobile telephone records placed him on the south side of Youngstown, which
is where the Shell station is located, when the crime occurred.
{¶78} Based on the foregoing evidence, we find the jury did not clearly lose its
way in convicting Appellant. We further find Appellant’s second assignment of error has
no merit.
ASSIGNMENT OF ERROR NO. 3
APPELLANT CONTENDS HE RECEIVED INEFFECTIVE ASSISTNACE
OF COUNSEL THROUGHOUT THE JURY PRETRIAL PROCEEDINGS,
VOIR DIRE, THE JURY TRIAL AND AT THE SENTENCING HEARING IN
THE INSTANT MATTER IN VIOLATION OF HIS SIXTH AND
FOURTEENTH AMENDMENT RIGHTS AS WELL AS HIS RIGHTS
UNDER SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION.
{¶79} In order to demonstrate ineffective assistance of counsel, Appellant must
show that trial counsel’s performance fell below an objective standard of reasonable
representation, and prejudice arose from the deficient performance. State v. Bradley, 42
Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs must be established: If
counsel’s performance was not deficient, then there is no need to review for prejudice.
Likewise, without prejudice, counsel’s performance need not be considered. State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶80} In Ohio, a licensed attorney is presumed to be competent. State v. Calhoun,
86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating trial counsel’s performance,
appellate review is highly deferential as there is a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance. Bradley at 142-
143, citing Strickland at 689. Appellate courts are not permitted to second-guess the
strategic decisions of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d
965 (1995).
{¶81} Even instances of debatable strategy very rarely constitute ineffective
assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407Case No. 23 MA 0029
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(1987). The United States Supreme Court has recognized there are “countless ways to
provide effective assistance in any given case.” Bradley at 142, citing Strickland at 689.
{¶82} To show prejudice, a defendant must prove his lawyer’s deficient
performance was so serious that there is a reasonable probability the result of the
proceeding would have been different. Carter at 558. “It is not enough for the defendant
to show that the errors had some conceivable effect on the outcome of the proceeding.”
Bradley, 42 Ohio St.3d 136 at fn. 1, 538 N.E.2d 373, quoting Strickland at 693. Prejudice
from defective representation justifies reversal only where the results were unreliable or
the proceeding was fundamentally unfair as a result of the performance of trial counsel.
Carter, 72 Ohio St.3d at 558, 651 N.E.2d 965, citing Lockhart v. Fretwell, 506 U.S. 364,
369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
{¶83} Finally, an ineffective assistance of counsel claim cannot be predicated
upon supposition. State v. Watkins, 7th Dist. Jefferson No. 07 JE 54, 2008-Ohio-6634, ¶
15. In other words, where evidence outside the record is required to demonstrate
deficient performance or prejudice, the claim cannot be asserted on direct appeal.
Likewise, proof of ineffective assistance of counsel requires more than vague
speculations of prejudice. Id. at ¶ 55, citing State v. Otte, 74 Ohio St.3d 555, 565, 1996-
Ohio-108, 660 N.E.2d 711.
{¶84} Appellant cites several instances of ineffective assistance, which we group
together for clarity of analysis. Appellant contends defense counsel should have hired a
shoe expert and an identification expert to counter Lieutenant Gentile’s testimony
regarding his identification of Appellant as the assailant. Appellant further argues defense
counsel should have offered Appellant’s medical records, which were subpoenaed by
defense counsel, into evidence at the trial.
{¶85} We addressed similar arguments of ineffective assistance in State v.
Telego, 2018-Ohio-254, 104 N.E.3d 190 (7th Dist.), where we opined:
“[T]he failure to call an expert and instead rely on cross-examination does
not constitute ineffective assistance of counsel.” State v. Hunter, 131 Ohio
St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 66; State v. Hartman, 93 Ohio
St.3d 274, 299, 754 N.E.2d 1150 (2001); State v. Nicholas, 66 Ohio St.3d
431, 436, 613 N.E.2d 225 (1993). Even if the wisdom of this approach is
Case No. 23 MA 0029
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debatable in a particular case, it must be remembered that debatable trial
tactics require deference to counsel’s judgment. State v. Clayton, 62 Ohio
St.2d 45, 49, 402 N.E.2d 1189 (1980). It is often pointed out defense
counsel’s decision not to engage its own expert can be considered tactical
since the potential expert may uncover evidence further inculpating the
defendant. See, e.g., Hartman, 93 Ohio St.3d at 299, 754 N.E.2d 1150. See
also State v. Phillips, 6th Dist. No. WD-16-020, 2017-Ohio-7107, 2017 WL
3382098, ¶ 48; State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639,
787 N.E.2d 691, ¶ 90 (10th Dist.).
Id. at ¶ 33.
{¶86} The same is true here. Appellant’s ineffective assistance arguments are
predicated upon the supposition that the proposed testimony and evidence would have
helped rather than hindered the defense. Because our determination of deficient
performance and prejudice turns on evidence outside of the record, we cannot consider
this aspect of Appellant’s ineffective assistance claims on direct appeal.
{¶87} Next, Appellant asserts his trial counsel was ineffective for failing to request
jury instructions on the lesser-included offense of murder. Defense counsel’s failure to
request instructions on lesser-included offenses is often a matter of trial strategy and does
not per se establish ineffective assistance of counsel. State v. Griffie, 74 Ohio St.3d 332,
658 N.E.2d 764 (1996), citing State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
{¶88} Debatable strategic and tactical decisions may not form the basis of a claim
for ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy
had been available. State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992). Here,
defense counsel may have chosen to defend the aggravated murder charge based on
the lack of motive and any prior relationship between Appellant and Black in order to
achieve an acquittal rather than a conviction of the lesser-included offense. Accordingly,
we find no deficient performance.
{¶89} For the foregoing reasons, we find there is no evidence of ineffective
assistance of counsel in the record. We further find Appellant’s third assignment of error
has no merit.
Case No. 23 MA 0029
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ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ABUSED ITS DISCRETION BY GIVING THE JURY
A CONSCIOUSNESS OF GUILT, EVIDENCE OF FLEEING JURY
INSTRUCTION WITHOUT SUFFICIENT EVIDENCE.
{¶90} Based on Appellant’s efforts to leave the Boardman Inn by way of a taxicab,
the state requested a flight instruction. Defense counsel objected to the flight instruction,
arguing there was no physical evidence of any intent to leave the jurisdiction, i.e., no
suitcases or bus ticket. During the police interview, Appellant claimed he was leaving the
motel to visit friends. The trial court rejected defense counsel’s arguments, and provided
the following instruction to the jury:
Testimony has been admitted indicating that the defendant fled the scene.
You are instructed that fleeing the scene alone does not weigh the
presumption of guilt, but it may tend to indicate the defendant’s
consciousness of guilt.
If you find that the facts do not support the defendant leaving the scene or
if you find that some other motive prompted their conduct, or if you find that,
or if you are unable to decide what his motive was, then you should not
consider this evidence for any purpose.
However, if you find that the facts support that the defendant engaged in
such conduct, and you decide that it was motivated by consciousness of
guilt you may, but are not required to consider that evidence in deciding
whether or not he is guilty of the crime charged. You alone will determine
what weight, if any, to give to this evidence.
(Trial Tr., p. 831-832.)
{¶91} A flight instruction is considered within the context of the entire set of jury
instructions. State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772 (1979), paragraph four of
the syllabus. A jury instruction is proper when: (1) relevant to the facts presented; (2) it
Case No. 23 MA 0029
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provides the correct statement of the relevant law; and (3) it is not already covered in the
general charge to the jury. State v. Sharpe, 7th Dist. Mahoning No. 22 MA 0021, 2023-
Ohio-2570, ¶ 60, appeal not allowed, 171 Ohio St.3d 1456, 2023-Ohio-3670, 218 N.E.3d
973, ¶ 60. The Ohio Supreme Court has consistently held the fact of the accused’s flight
is admissible as evidence of the accused’s consciousness of guilt and, thus, of guilt itself.
State v. Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897 (1969), vacated on other grounds,
408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750; holding reaffirmed by State v. Williams, 79
Ohio St.3d 1, 11, 679 N.E.2d 646 (1997).
{¶92} “When trial counsel files a timely objection to jury instructions pursuant to
Crim.R. 30, a reviewing court will not reverse the trial court’s decision in the matter absent
an abuse of discretion.” State v. Italiano, 7th Dist. Mahoning No. 19 MA 0095, 2021-Ohio-
1283, ¶ 9, appeal not allowed, 163 Ohio St.3d 1496, 2021-Ohio-2270, 169 N.E.3d 1283,
¶ 9; State v. Taylor, 7th Dist. Mahoning No. 08 MA 122, 2010-Ohio-1551, ¶ 26; State v.
Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989). Generally, a trial court has broad
discretion as to jury instructions, but must “fully and completely give the jury all
instructions which are relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder.” Italiano at ¶ 9, citing State v. Comen, 50 Ohio St.3d
206, 210, 553 N.E.2d 640 (1990).
{¶93} Unlike traditional evidence of flight, Appellant’s conduct at the Boardman
Inn is susceptible to two interpretations. However, the instruction clearly provides the jury
may reject the state’s interpretation of Appellant’s conduct. Further, even if the jury
agrees Appellant’s conduct is evidence of consciousness of guilt, they are not obligated
by the instruction to consider it in rendering their verdict. Given the wide latitude provided
by the instruction, we find the trial court did not abuse its discretion by instructing the jury
on flight.
{¶94} The Tenth and Second Districts have reached the same conclusion with
respect to the flight instruction. The Tenth District has observed “the instruction [is]
neutral in its effect, providing that the jury may, but [is] not required to, consider evidence
of Jones’ conduct in deciding whether Jones was guilty of the crime charged.” State v.
Davenport, 10th Dist. Franklin No. 18AP-393, 2019-Ohio-2297, ¶ 55. Similarly, in State
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v. White, 2d Dist. No. 26093, 2015-Ohio-3512, the Second District found a flight
instruction “all but innocuous.” Id. at ¶ 51. The Second District opined:
[The flight instruction] explains the limited use of the flight evidence and
clearly says that the jury may consider [the defendant’s] flight only if it finds
that he was ‘motivated by a consciousness or awareness of guilt.’ And even
if the jury finds that this motivated him, the instruction says that it still is not
required to consider the flight evidence.
Id.
{¶95} Here, as in the cited cases, the jury was instructed they could, but were not
required to, consider Appellant’s conduct even if they concluded it was motivated by
consciousness of guilt. Because the instruction exclusively vests in the jury both the
credibility determination (Appellant’s stated purpose for leaving the motel in a taxicab) as
well as its relevance to Appellant’s guilt, we find the trial court did not abuse its discretion.
We further find Appellant’s fourth assignment of error has no merit.
CONCLUSION
{¶96} For the foregoing reasons, Appellant’s conviction is affirmed.
Robb, P.J., concurs.
Hanni, J., concurs.
Case No. 23 MA 0029
[Cite as State v. Byrd, 2024-Ohio-2134.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.