State v. McCloud ( 2024 )

[Cite as State v. McCloud, 2024-Ohio-2190.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230493
TRIAL NO. B-2204750
Plaintiff-Appellee, :
vs. : O P I N I O N.
JEREMIAH MCCLOUD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 7, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Jeremiah McCloud appeals his convictions, after a jury trial, for
aggravated robbery, one count of attempted murder, and two counts of felonious
assault, all with gun specifications. In four assignments of error, McCloud contends
that the trial court erred by allowing the admission of hearsay evidence, his conviction
for aggravated robbery is not supported by sufficient evidence and is contrary to the
manifest weight of the evidence, and his conviction for attempted murder is against
the manifest weight of the evidence. For the following reasons, we overrule the
assignments of error and affirm the judgment of the trial court.
Factual Background
{¶2} On October 6, 2022, Jeremiah McCloud was indicted for shooting Kevin
Morrison in a Colerain Township park. He pleaded not guilty and proceeded to a jury
trial.
{¶3} Officer John McMahon, a patrol officer for the Colerain Township
Police Department, testified that he had met a few other officers at the Speedway gas
station on Colerain Avenue to purchase water and chat about an earlier call for service.
The officers noticed a red Chevrolet sedan parked across three parking spaces, and
while looking at the car, they received a dispatch that a person at the Speedway address
had been shot. McMahon entered the store and started rendering aid. The shooting
victim, Morrison, said he had been shot at a park by McCloud.
{¶4} Morrison testified that McCloud’s cousin was a good friend of his, and
he was acquainted with McCloud. They had spoken a few times and played basketball
together. For months, they had discussed Morrison purchasing a gun from McCloud.
They communicated by Snapchat and text messages. One night, while Morrison was
playing a video game, he received a text from McCloud offering to sell him a gun.
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Morrison drove to an apartment complex in Fairfield to pick up McCloud and waited
for McCloud for about an hour and a half. When McCloud finally walked out of the
apartment, he got into the front passenger’s seat and showed him the small black
handgun. McCloud told him that he needed $300 cash for the gun, so Morrison
stopped at an ATM to get the money. McCloud suggested that they go to a park to test
fire the gun.
{¶5} They arrived at the park a little after midnight. McCloud loaded the gun,
and both of them put on Latex gloves. Morrison had worked for Terminix, and the
gloves were in his trunk because they were part of his uniform. They walked to a
baseball field, and Morrison had a “funny feeling” because McCloud was really nervous
and acting suspicious. Morrison walked behind McCloud and kept his cell phone
flashlight pointed at McCloud. Morrison testified that he held the phone in his hand
the entire time except for the brief period when he fired the gun. McCloud fired the
gun two or three times, Morrison shot it once or twice, then McCloud asked for the
gun. McCloud took the magazine from the gun and dropped a few bullets on the
ground. When McCloud asked him to pick up the bullets, Morrison said no and
became suspicious because McCloud kept looking around and pointing the gun at the
ground. McCloud picked up the bullets, turned around, and started shooting.
{¶6} Morrison was shot in the left wrist, the stomach, and his chest. After
the first shot, Morrison started swinging at McCloud, but he fell to the ground after
getting shot in the chest. As Morrison was trying to stand, McCloud pointed the gun
at his head and said, “I’m going to pop you.” He heard the gun click, but it didn’t fire.
Morrison started running and hid in some bushes. After five or ten minutes, Morrison
walked to his car and drove to the Speedway. Morrison’s cell phone, which had his
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OHIO FIRST DISTRICT COURT OF APPEALS
driver’s license in the case, and the cash were missing. He did not know if he dropped
them or if McCloud took them. After McCloud started shooting at him, Morrison
dropped the phone.
{¶7} When he arrived at the Speedway, Morrison asked the cashier to call
911, grabbed water, and sat on the floor. Morrison had lost one of his orange Crocs.
Morrison vaguely remembered speaking to a police officer and telling him that, “It was
Jeremiah McCloud.” Morrison was taken to University of Cincinnati Medical Center.
He was in the hospital for two-and-a-half weeks and had multiple surgeries. Morrison
spoke with Detective Shea when he first woke up, but he could not remember what
they discussed due to the medications he had been given. Shea attempted to locate his
iPhone, but the phone had either been turned off or the battery was dead.
{¶8} On cross-examination, Morrison was asked if he told the police during
his initial interview that McCloud pointed the gun at his head and pulled the trigger,
and the following questioning occurred:
Morrison: I’m not even going to lie. I can’t say what I said. Everything
I said in the hospital, I was on medication. I just woke up. You know, I
don’t really remember everything I told. I know I talked to Det. Shea. I
told him a lot.
Defense Counsel: But it’s your thought now that that’s what happened?
Morrison: It’s my thought?
Defense Counsel: It’s your testimony that that’s what happened?
Morrison: Yes sir.
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{¶9} Morrison agreed that he may have given his phone to McCloud to hold
while he test fired the gun, but he could not remember. His cell phone flashlight was
the only light source they had in the park.
{¶10} Detective Chris Cullman, an investigator for Colerain Township police,
responded to the initial call for assistance at Speedway with Detective Carusone. By
the time he arrived, Morrison had been transported to the hospital. Morrison did not
know the name of the park where he was shot, and the police determined it was
Heritage Park in Colerain Township. The following day, Cullman processed the crime
scene at the park.
{¶11} Cullman photographed and collected a spent shell casing and a spent
projectile. He also recovered Morrison’s missing orange Croc in the park’s dumpster.
A park employee had found the shoe in the grass by the ball fields and put it in the
dumpster. The other Croc was found at the Speedway. Cullman also participated in
the search of McCloud’s residence. A small black gun was found in a cabinet above the
refrigerator, and four cell phones, a live round, and shell casings were collected. The
ballistic evidence was sent to the Hamilton County Coroner’s Lab for testing.
{¶12} Colerain Township patrol officer Patrick Hoard drove McCloud to the
police department for an interview and then to the Justice Center. While McCloud
was being processed at the jail, Hoard was required to wait for the deputies to finish
searching and processing McCloud. The deputies found Morrison’s identification in
McCloud’s wallet and gave it to Hoard.
{¶13} Forensic scientist Bridget Chambers from the Hamilton County
Coroner’s Office testified that she works in the Firearm and Toolmark Identification
Unit. Her primary duty is to determine whether a bullet or cartridge case was fired
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from a specific firearm. The cartridge case and bullet found in the park had been fired
from the firearm located in McCloud’s apartment. A second casing also matched the
gun.
{¶14} Detective Sam Shea responded to University of Cincinnati Medical
Center to interview Morrison. When he arrived, Morrison was in surgery. The
following day, Shea was able to speak with him. Morrison told him that he went to an
ATM in College Hill to withdraw cash to buy the gun. Shea obtained the video of the
ATM transaction from First Financial Bank. Over objection, Shea testified that during
the initial interview, Morrison told him that McCloud put the gun to his head and fired.
{¶15} Shea obtained a search warrant for Morrison’s car. A spent shell casing
was found in the coin compartment of the front passenger door. Shea submitted the
casing to the lab, and it matched McCloud’s gun.
{¶16} After obtaining Morrison’s phone number, Shea attempted to locate the
iPhone. Shea received pings from AT&T every 15 minutes that included GPS
coordinates. Shea plugged the coordinates into Google maps, and the iPhone was in
the area of Camelot Drive. Shea interviewed McCloud at the police station and learned
that McCloud lived on Camelot Drive. The state rested after Shea’s testimony.
{¶17} Jeremiah McCloud testified that he knew Morrison through a close
friend. Morrison and he had discussed a gun sale for at least a month. Morrison had
texted that evening asking to buy a gun. McCloud left his home around 11 p.m. He
had been cleaning his house while Morrison waited for him. They drove to a bank in
College Hill that McCloud had been to on a prior occasion. They agreed to a purchase
price of $300. Morrison asked to test fire the gun and typed in a location on his phone.
They drove to Heritage Park, and McCloud loaded the gun. Morrison retrieved gloves
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OHIO FIRST DISTRICT COURT OF APPEALS
from his trunk and offered a pair to McCloud, but he declined. McCloud thought it
was weird that Morrison put on gloves because Morrison had handled the gun when
McCloud gave it to him while in the car.
{¶18} McCloud fired the gun twice and gave it to Morrison. Morrison gave
McCloud his phone and asked him to record the test fire. McCloud refused to record
the test fire and put the phone in his pocket. After Morrison shot the gun, he placed
the gun on the ground. McCloud picked it up the gun and began walking toward the
car. While walking, he heard footsteps approaching him and a wind around his neck
like Morrison was swinging toward him. McCloud thought Morrison was trying to do
something to him or trying to get the gun. McCloud became scared and nervous, so
he turned around and fired three shots. Then he ran from the park and walked home.
McCloud’s cell phone was dead, so he could not call anyone. McCloud testified that he
fired the gun in self-defense.
{¶19} On cross-examination, McCloud testified that he had originally found
the gun on the side of a playground in his old neighborhood. When he test fired the
gun, it jammed. When he released the clip, he saw that it was dirty, so he washed the
bullets and the gun was no longer jammed.
{¶20} After McCloud left the park, it took him an hour to get home, but he
could not remember the route he took or the names of the streets he traversed. When
he was almost home, he realized he had Morrison’s phone in his pocket. McCloud
searched the phone case, took the ID, and left the phone outside on Camelot. He
planned to show the ID to identify the person who tried to rob him. McCloud did not
tell the police he had the ID because he wanted to consult with a lawyer.
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{¶21} McCloud testified that when he fired, the second punch was in motion,
and he feared for his life. He did not know if Morrison had a knife or other weapon.
When asked about the spent casing in the passenger door, McCloud stated that he did
not put in there, and someone else must have put it there. When McCloud arrived
home, he went to sleep. It did not occur to him call an ambulance, and he did not want
to contact the police. After McCloud’s testimony, the defense rested.
{¶22} The jury found him guilty of all of the charges, and the court sentenced
McCloud to an aggregate term of 15-18 years in prison.
Inadmissible Hearsay
{¶23} In his first assignment of error, McCloud contends that the trial court
erred by allowing hearsay evidence that bolstered the testimony of the sole witness on
the attempted-murder charge.
{¶24} Morrison testified that he could not remember if he told Shea that
McCloud put the gun to his head and pulled the trigger during his initial interview at
the hospital because of the medication he was taking. During Shea’s testimony, the
prosecutor asked him if Morrison told him that McCloud had put the gun to his head.
McCloud objected arguing that any response would be inadmissible hearsay designed
to bolster Morrison’s credibility.
{¶25} McCloud contends that the court erred by allowing Shea to testify that
Morrison told him, during his initial interview, that McCloud attempted to shoot him
in his head. McCloud further argues that the testimony was prejudicial because it
bolstered Morrison’s credibility. In response, the state argues that the statement was
admissible as a prior consistent statement under Evid.R. 801(D)(1)(b).
{¶26} The admission of evidence lies within the broad discretion of a trial
court, and a reviewing court should not disturb evidentiary decisions in the absence of
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an abuse of discretion that has created material prejudice. State v. Issa, 93 Ohio St.3d
49, 64, 752 N.E.2d 904 (2001).
{¶27} Hearsay is “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). “Under the hearsay rules, the prior consistent statement of
a testifying witness is not admissible to directly bolster that witness’s credibility.”
State v. Trusty, 1st Dist. Hamilton Nos. C-120378 and C-120386, 2013-Ohio-3548, ¶
47. However, under Evid.R. 801(D)(1)(b), “[a] statement is not hearsay if * * * [t]he
declarant testifies at trial * * * and is subject to cross-examination concerning the
statement and the statement is * * * consistent with declarant’s testimony and is
offered to rebut an express or implied charge against declarant of recent fabrication or
improper influence or motive[.]”
{¶28} Ordinarily, Evid.R. 801(D)(1)(b) allows the state to introduce prior out-
of-court consistent statements to rebut the charge of “recent fabrication” raised by
defense counsel during the cross-examination of a state’s witness, if the witness has
been sufficiently impeached. State v. Strutz, 1st Dist Hamilton Nos. C-100334 and C-
100335, 2011-Ohio-3660, ¶ 12. “In determining whether to admit a prior consistent
statement, a trial court should take a ‘generous view’ of the ‘the entire trial setting to
determine if there was sufficient impeachment to amount to a charge of fabrication or
improper influence or motivation.’ ” Id., citing State v. Grays, 12th Dist. Madison No.
CA2001-02-007, 2001-Ohio-8679.
{¶29} Here, Morrison did not remember what he told the investigator at the
initial interview. “The mere failure of [a witness] to remember the events surrounding
an interview with police or hospital personnel, without anything further, does not rise
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to the level of implied fabrication.” State v. English, 12th Dist. Butler No. CA2013-03-
048, 2014-Ohio-441, ¶ 45. Thus, defense counsel did not sufficiently impeach
Morrison to attack his credibility. McCloud did not argue in opening or closing
statements that Morrison fabricated his testimony regarding the gun being pointed at
his head and fired. Additionally, Morrison did not affirm or deny telling Shea about
the gun to his head. Thus, Shea’s statement that Morrison told him the gun was
pointed at his head cannot be considered consistent with Morrison’s inability to recall
what he told the officer.
{¶30} The erroneous admission of hearsay statements does not require
reversal if the error was harmless. “A reviewing court may overlook an error where
the remaining admissible evidence, standing alone, constitutes ‘overwhelming’ proof
of a defendant’s guilt.” (Citations omitted.) State v. Banks, 1st Dist. Hamilton Nos. C-
200395 and C-200396, 2021-Ohio-4330, ¶ 26.
{¶31} McCloud argues that the sole evidence to support that he had the
purpose to murder Morrison was the testimony that he pointed the gun at Morrison’s
head and said he was going to “pop him real quick.” Therefore, he was prejudiced by
Shea’s testimony because it bolstered Morrison’s credibility.
{¶32} Here, the error was harmless because Morrison testified that McCloud
shot him in the chest, stomach, and wrist and pointed the gun to his head and pulled
the trigger. McCloud’s intent to murder Morrison was established by the fact that
McCloud fired multiple close-range shots at Morrison, hitting him in the chest,
stomach, and wrist.
{¶33} We overrule the first assignment of error.
Sufficiency and Manifest Weight
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶34} In his second and third assignments of error, addressed together,
McCloud contends that the conviction for aggravated robbery was not supported by
sufficient evidence and is contrary to the manifest weight of the evidence.
{¶35} In reviewing a challenge to the sufficiency of the evidence, a reviewing
court must determine whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime had been proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶36} As to the weight of the evidence, we review whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386-
387, 678 N.E.2d 541 (1997). We consider all the evidence in the record, the reasonable
inferences, the credibility of the witnesses, and whether, in resolving conflicts in the
evidence, 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. State v. Bailey, 1st Dist.
Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting Thompkins at 387. We afford
substantial deference to credibility determinations because the factfinder sees and
hears the witnesses. See State v. Glover, 1st Dist. Hamilton No. C-180572, 2019-Ohio-
5211, ¶ 30.
{¶37} McCloud was convicted of aggravated robbery in violation of R.C.
2911.01(A)(1), which provides:
(A) No person, in attempting or committing a theft offense, as defined
in section 2913.01 of the Revised Code, or in fleeing immediately after
the attempt or offense, shall do any of the following:
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(1) Have 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[.]
A person commits a theft offense when he knowingly obtains or exerts control over
another’s property without the owner’s consent. R.C. 2913.02.
{¶38} McCloud argues that the state failed to produce evidence that he had the
purpose to commit a theft offense because Morrison admitted that he may have given
his iPhone to McCloud to hold while he fired the gun. McCloud misstates Morrison’s
testimony. Morrison testified he had his phone in his hand the entire time except
when he test fired the gun. After he fired the gun, he again had his phone in his hand
and dropped it after he was shot. McCloud admitted that he had the phone and left it
outside his home after taking Morrison’s ID.{¶39} Viewing the evidence in the light most favorable to the state, the state
presented sufficient evidence to establish that McCloud obtained Morrison’s phone
and ID without his consent. Although McCloud testified that he put the phone in his
pocket after Morrison asked him to hold it and forgot it, the jury believed Morrison’s
testimony, and we cannot conclude 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.
{¶40} Accordingly, we overrule the second and third assignments of error.
Manifest Weight
{¶41} In his fourth assignment of error, McCloud argues that the attempted-
murder conviction was against the manifest weight of the evidence because Morrison’s
testimony was “bizarre” and not as credible as McCloud’s “simple and direct”
testimony.
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{¶42} “[I]t is well settled law that matters as to the credibility of witnesses are
for the trier of fact to resolve.” State v. Brooks, 1st Dist. Hamilton No. C-220102,
2023-Ohio-846, ¶ 23, quoting State v. Ham, 1st Dist. Hamilton No. C-170043, 2017-
Ohio-9189, ¶ 21. “When conflicting evidence is presented at trial, a conviction is not
against the manifest weight of the evidence simply because the trier of fact believed
the prosecution testimony.” (Citations omitted.) Id. Given the evidence presented at
trial, the jury was entitled to reject McCloud’s version of events and find Morrison’s
testimony to be more credible. We cannot say that the jury lost its way or created a
manifest miscarriage of justice in finding McCloud guilty.
{¶43} We overrule the fourth assignment of error.
Conclusion
{¶44} Having overruled McCloud’s four assignments of error, we affirm the
trial court’s judgment.
Judgment affirmed.
BOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry this date.
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