State v. Watters , 2016 Ohio 8083 ( 2016 )

[Cite as State v. Watters, 2016-Ohio-8083.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2015-CA-82
Plaintiff-Appellee :
: Trial Court Case No. 2015-CR-22
v. :
: (Criminal Appeal from
DAVON WATTERS : Common Pleas Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of December, 2016.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
TOM O. MERRITT, Atty. Reg. No. 0066661, Merritt Law Office, 818 West Main Street,
Tipp City, Ohio 45371
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Davon Watters appeals from his conviction and
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sentence for seven felony offenses. Watters argues that he was denied the right to
effective assistance of counsel, that the convictions are against the manifest weight of the
evidence, and that the trial court erred by imposing consecutive sentences.
{¶ 2} We conclude that the record fails to demonstrate that trial counsel was
ineffective. We further conclude that the convictions are not against the manifest weight
of the evidence. Finally, we conclude that the trial court did not err in imposing
consecutive sentences. Accordingly, the judgment of the trial court is Affirmed.
I. Shots Fired Outside E & J’s Fun Bar Lead to
Pursuit of the Suspected Shooter
{¶ 3} The bill of particulars describes the events leading to the indictment:
On or about January 9, 2015 at E & J’s Bar located at 241 E. Main
St. Springfield, Ohio, the defendant was standing on E. Main St, when he
purposefully used a firearm to shoot into a Volkswagen that had three
individuals located in it. Three rounds hit the vehicle and one struck Marque
Whaley striking her in the head and causing her death. When police located
the defendant he had used hand sanitizer to clean potential evidence off of
his hands. The defendant was taken into custody and when being booked
into jail it was discovered that he had a drug of abuse in his possession. He
was asked prior to transport if he had any illegal items on his person.
{¶ 4} The events that led to the police investigation of Watters started with a 911
call made by a person who was later identified as Adonte Cherry. An audio recording of
the 911 call was played to the jury, after being introduced by the police dispatcher who
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took the call. Cherry immediately informs the dispatcher that “someone just been firing
shots at me, I’m following him now on East Main Street.” This statement is immediately
followed by the sound of gun shots, and Cherry states, “someone behind me is shooting
at me too.” The dispatcher also heard the gunshot sounds, and asked to confirm that
the sounds were gunshots, as well as to ask the caller’s location. Cherry said that he
was driving on East Main near Florence. He then reported that the car he was chasing
had just crashed, and the driver had gotten out of the car. As he began to report about
the truck behind him, he realized, and reported, that his passenger had been hit. Cherry
told the dispatcher that he was going to the hospital. He gave the dispatcher a partial
license plate of the vehicle that had crashed, and identified the vehicle as a black Grand
Am. Cherry stated that there were shots being fired from the truck behind him. He
reported that his passenger was hit in the head, but he did not see any holes in the
windshield, and did not know how she had been hit. He said that he had been at E & J’s
Fun Bar.
{¶ 5} A surveillance video from the Shamrock Bar, located in the area of the
incident, showed three vehicles traveling on the road in close succession at 2:22 A.M.
The video reveals that the roads were covered with snow and it was snowing heavily.
Neither the vehicle type nor the occupants of the three vehicles are discernable from the
surveillance video.
{¶ 6} Officer Jerome Montico testified that he arrived at the hospital at about 2:30
A.M. At that time, he saw a black Volkswagen enter the emergency area. He saw two
black males quickly exiting the car and asking for help with the female passenger who
had been shot. The passenger was identified as Marque Whaley, and the second man
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was identified as Ian Sheffield. Officer Montico stayed with the Volkswagen to secure it
as evidence. He observed blood on the front passenger seat, and projectile strikes to
the front of the vehicle.
{¶ 7} Sergeant Travis Baader testified that he heard gun shots coming from an
area west of the Pizza Hut on East Main Street. As he headed in the direction where the
gun shots were heard, he found an abandoned car that had crashed into a pole, but was
still running. Officer Terry Nichols was already at the abandoned car. Both Baader and
Nichols testified that no one was in the car. They both were able to see an assault
weapon on the floor of the front passenger side of the car.
{¶ 8} A set of footprints led from the car to an apartment where officers found
Watters sitting on the front porch. Officer Ronnie Terry testified that as he approached
Watters he could smell a scent similar to that of hand sanitizer. Baader initiated a pat-
down for officer safety, and detected a small bottle in Watters’s pants pocket that he
believed was a bottle of hand sanitizer. Although Watters denied being involved in the
crash of the Grand Am, he did admit that he was at E & J’s Fun Bar earlier that evening.
Watters was handcuffed, advised of his Miranda rights, and taken into custody. Officer
Andrew Bronsord assisted in the detention. He also testified that Watters smelled
strongly of a hand sanitizer, and that a small bottle of Purel hand sanitizer was found in
Watters pocket during the pat-down. Bronsord performed a gun residue test on
Watters’s hands.
{¶ 9} A forensic scientist testified that he performed gunshot residue testing on
three samples provided by the police. Of the three, gunshot residue was only found in
the sample obtained from Sheffield. No gunshot residue was found in the samples
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obtained from Watters or Cherry.
{¶ 10} Bryan Casto, a forensic pathologist from the coroner’s office, testified that
Whaley had two gunshot injuries to the head. He indicated that there were two entrance
wounds; one in the forehead and one in the right temple area. He removed bullet
fragments from Whaley’s head He testified that she had died from the bullet that entered
her brain.
{¶ 11} Timothy Shepherd, a forensic expert, testified that he examined the
weapon found in the Grand Am. He identified it as a Kal-Tech 5.56 millimeter semi-
automatic rifle. Upon his initial examination he found that it held 27 rounds of
ammunition, but was capable of holding 30 rounds. He determined that it had an operable
thumb safety, and that, as a semi-automatic, it required a separate pull of the trigger each
time to detonate one round of ammunition. Shepherd conducted a firing test with the
rifle. He measured the trigger pull at seven pounds of force.
{¶ 12} Shepherd further testified that he was given bullet fragments to examine
with a forensic ballistics comparison microscope. With regard to the bullet fragments
removed from Whaley’s head, Shepherd found some microscopic striations that were
characteristlically similar to bullets used in a Kal-Tech weapon like the one obtained from
Watters’ vehicle. However, because of the quantity available for testing, he was not able
to say positively that the weapon in Watters’ vehicle was the weapon from which the bullet
was fired. A bullet fragment, removed from the Volkswagen’s engine compartment, did
not reveal anything of evidentiary value. Finally, a fragment removed from the battery of
the Volkswagen, showed striations that, again, were characteristically similar to the class
of weapon that was test fired.
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{¶ 13} After Watters was taken into custody, he was interrogated at the police
station. Initially, Watters did not admit to any involvement in the shooting at E & J’s Fun
Bar. Watters did admit that he was at E & J’s Fun Bar earlier that evening, and that he
saw two vehicles parked behind him. Watters stated that a man named Emo showed
him a gun while he was sitting in his car in front of E & J’s Fun Bar, and that he handled
it. Watters stated that Emo opened the passenger door, and that he returned the gun to
Emo. Shortly thereafter, he heard gunshots in the parking lot, which he thought were
fired by Emo. This scared him, so he drove away.
{¶ 14} Later during the interrogation, Watters changed these facts, stating that he
heard one gunshot as he was handing the gun back to Emo, so he took off in a hurry, and
the gun was left in his vehicle. As he was leaving, he heard another gunshot. Watters
stated that he crashed the car, and that he walked away from it having sustained a head
injury. He stated that he was shaken by the accident, and did not remember using hand
sanitizer in an attempt to wipe away gun residue on his hands.
{¶ 15} The detective questioning Watters, informed him that they were going to be
able to find video from the scene.1 Watters then stated that after the man named Emo
showed him a gun in the parking lot of E & J’s Fun Bar, Watters handled the gun, and
accidentally hit the trigger once, causing the gun to fire up the street. When it was
suggested that the truck behind Cherry’s vehicle was driven by a person named Dougie
or David Hargrove, Watters denied knowing that person. It was later discovered that
1
The police were subsequently unable to obtain a surveillance video from the bar,
because the bar’s camera was not working the night of the incident.
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Hargrove was Watters’s brother.
II. The Course of Proceedings
{¶ 16} Watters was indicted on one count of Murder, in violation of R.C.
2903.02(A), one count of Felony Murder, in violation of R.C. 2903.02(B), three counts of
Felonious Assault, in violation of R.C. 2903.11(A)(2), one count of Discharging a Firearm
on or Near Prohibited Premises, in violation of R.C. 2923.162(A)(3), one count of Illegal
Conveyance of Prohibited Items onto Grounds of a Government Facility, in violation of
R.C. 2921.36(A)(2), and one count of Tampering with Evidence, in violation of R.C.
2921.12(A)(1). The two Murder charges and the three Felonious Assault charges also
contained gun specification enhancements.
{¶ 17} A motion to suppress evidence was overruled. The State dismissed the
charge of Illegal Conveyance of Prohibited Items onto Grounds of a Government Facility.
A jury trial was conducted in August 2015; Watters was convicted of all remaining counts,
and the gun specifications.
{¶ 18} At sentencing, the parties agreed that the two murder offenses and the
felonious assault of Whaley should be merged. Likewise, they agreed to merge all
firearm specifications into one firearm specification. The State elected to have Watters
sentenced on the charge of Murder. On the Murder conviction, the trial court sentenced
Watters to serve a term of life in prison, with parole eligibility after 15 years, plus three
years for the firearm specification, for a total term of life in prison with parole eligibility
after 18 years. The trial court sentenced Watters to a prison term of eight years on each
of the remaining two counts of Felonious Assault, and a term of eight years for the
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Discharge of a Firearm on Prohibited Premises. Watters was sentenced to a three-year
term for Tampering with Evidence. Finally, the trial court ordered all the sentences to
run consecutively, for a total term of life in prison with parole eligibility after 45 years.
{¶ 19} From the judgment of the trial court, Watters appeals.
IV. The Record Fails to Demonstrate Ineffective Assistance of Trial Counsel
{¶ 20} For his First Assignment of Error, Watters asserts:
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL FAILED
TO: ADEQUATELY DISCUSS THE CASE AND THE DEFENSE WITH THE
DEFENDANT PRIOR TO TRIAL, FAILED TO APPROPRIATELY
PREPARE FOR TRIAL AND FAILED TO CREATE A COHERENT TRIAL
PLAN AND THEORY OF THE CASE
{¶ 21} Watters argues that defense counsel was ineffective. Specifically, he
claims that counsel failed to: (1) prepare and pursue any coherent trial plan as
evidenced by the lack of any apparent theory of the case; (2) communicate with him; (3)
cross-examine some of the State’s witnesses; (4) effectively examine those he did cross;
(5) call witnesses on his behalf; and (6) explain to the jury the significance of a plea of not
guilty and Watters’s decision not to testify.
{¶ 22} In order to prevail on a claim of ineffective assistance of counsel, a criminal
defendant must show both deficient performance and resulting prejudice. Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), paragraph two of the
syllabus; State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989), paragraph two of
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the syllabus. Therefore, a defendant must demonstrate that counsel's representation fell
below an objective standard of reasonableness and that counsel's errors were serious
enough to create a reasonable probability that, but for the errors, the outcome of the
proceeding would have been different. Id. In conducting this analysis, “we will not second-
guess trial strategy decisions, and ‘a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.’ ”
State v. English, 2d Dist. Montgomery No. 26337, 2015-Ohio-1665, ¶ 10, citing State v.
Mason, 82 Ohio St. 3d 144, 157-158, 694 N.E.2d 932 (1998), quoting Strickland at 689.
(Internal citations omitted.)
{¶ 23} With this standard in mind, we turn first to the claim that trial counsel did not
prepare or pursue a coherent theory of the case. The transcript demonstrates that
defense counsel had a strategy for establishing his theory of the case. That strategy
was built upon establishing reasonable doubt by creating credibility issues regarding
Cherry’s account of the incident, and by demonstrating gaps in the State’s case.
{¶ 24} First, counsel argued that Cherry’s 911 statements were not credible, given
that he stated he was chasing a vehicle that he claimed carried a person who had been
shooting at him. He further pointed out that Sheffield was the only person found with
gunshot residue on his hands. Counsel noted that the State’s only eyewitnesses to the
crime, Cherry and Sheffield, were not called as witnesses. Counsel also noted that
neither Cherry nor Sheffield observed that Whaley was injured until after the car driven
by Watters had crashed, and that the evidence indicated that a truck which had been
followed Cherry had been shooting at Cherry’s vehicle; thereby implying that the truck
driver might be responsible for Whaley’s injury.
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{¶ 25} Counsel noted the lack of evidence with regard to gunshot residue on
Watters, as well as the lack of conclusive forensics evidence that the bullet that killed
Whaley had been shot from the gun found in Watters’s car. Based upon the record, we
conclude that the claim that counsel failed to pursue a theory of the case is without merit.
{¶ 26} Next, Watters claims that counsel failed to communicate with him. In
support, he relies upon the following statement made by trial counsel after the State
rested its case:
*** I want to speak to my client for a brief period of time and make a
determination as to whether or not I’m going to call any witnesses and if he’s going
to testify and if we are going to do that, I’d like - - if I can get five minutes alone
with my client in that timeframe.
{¶ 27} Watters appears to argue that this statement indicates that counsel had not
previously talked to him about witnesses or his testimony, and that counsel had not
prepared. We disagree. During voir dire, defense counsel directly and clearly
addressed the fact that he might not call any witnesses, and that Watters might not testify.
The record shows that counsel conducted a comprehensive voir dire on this subject, and
that he made it clear to the jury that Watters had an absolute right not to call witnesses
or testify. Counsel even stated that he might make a legal decision not to call witnesses
or have Watters testify if he thought the State did not prove its case. Thus, from the
record, it appears that the issue of witness presentation and whether Watters would testify
were not last-minute considerations at the close of the State’s case. It is common to
reserve a final decision whether to have a defendant testify until all the other evidence is
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in, at which time the need for the defendant’s testimony can be weighed against the risks
inherent in having the defendant testify and be subject to cross-examination.
Furthermore, a claim of lack of communication between a defendant and his trial counsel
is not one that can be borne out by the record. It relies upon information necessarily
outside the record, and is therefore not an issue we can review on direct appeal.
{¶ 28} We next address the claim that counsel was ineffective for failing to cross-
examine some of the State’s witnesses, and for being “lackadaisical” in his cross-
examination of other witnesses. Watters specifically refers to the failure to conduct
cross-examination of the pathologist who testified as to Whaley’s cause of death, and to
his ineffective cross-examination of the forensic expert who testified regarding the bullets
removed from Whaley’s head.
{¶ 29} We have held that “trial counsel's decision to cross-examine a witness and
the extent of such cross-examination are tactical matters.” State v. Russell, 2d Dist.
Montgomery No. 21458, 2007-Ohio-137, ¶ 55. “A reviewing court may not second-guess
decisions of counsel which can be considered matters of trial strategy.” State v. Conley,
2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State v. Smith, 17 Ohio St. 3d 98,
477 N.E.2d 1128 (1985). “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.” Id., citing State v. Cook, 65 Ohio St. 3d 516, 524, 605
N.E.2d 70 (1992).
{¶ 30} We have reviewed the record, and find nothing to indicate that counsel was
ineffective with regard to cross-examination. Watters contends that the cause of death
was “a huge issue in this case,” and thus, counsel was ineffective for failing to cross-
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examine the pathologist who performed the autopsy and testified as to the cause of death.
But from the record it is apparent the cause of death, as testified to by the pathologist,
was not at issue. What was at issue was whether Watters fired the gun that killed
Whaley. The pathologist testified, simply, that a bullet to the brain caused her death.
The pathologist removed those bullet fragments, but he did not testify that Watters was
the person who fired the fatal bullet.
{¶ 31} We have also reviewed counsel’s cross-examination of the forensic expert,
whom Watters claims was not properly questioned regarding the result of the gunshot
residue tests. The record shows that counsel did, through his cross-examination,
emphasize that only Sheffield tested positive for gunshot residue. From our review of
the entire transcript, we do not conclude that counsel was ineffective with regard to his
cross-examination of the State’s witnesses.
{¶ 32} Next Watters complains that counsel failed to call any witnesses on his
behalf. Again, it is clear that this was an issue that counsel had considered, as he
discussed it during voir dire. And it may well have been an issue of trial strategy. In
any event, we conclude that the record fails to establish that counsel’s decision not to call
any witnesses was either unsound, or prejudicial to Watters.
{¶ 33} Finally, Watters claims that trial counsel failed to explain the significance of
entering a plea of not guilty, as well as the right not to testify, to the jury. We disagree.
The record reflects that these issues were covered by counsel at the beginning of the
trial.
{¶ 34} We conclude that the record fails to demonstrate that trial counsel’s
representation fell below an objective standard of reasonableness. The First
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Assignment of Error is overruled.
V. The Judgment Is Not Against the Manifest Weight of the Evidence
{¶ 35} Watters asserts the following as his Second Assignment of Error:
THE TRIAL COURT ERRED, ACTING AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN FINDING THE APPELLANT GUILTY DUE
TO COUNSEL’S FAILURE TO DEVELOP A COHERENT TRIAL
STRATEGY AND APPROPRIATELY DEFEND HIS CLIENT.
{¶ 36} Watters contends that his convictions are against the manifest weight of the
evidence because his counsel was ineffective in presenting a defense. Thus, he argues
that the “persuasive spin of the case” was effectively ceded to the prosecution.
{¶ 37} A reviewing court considering a manifest-weight claim “review [s] the entire
record, weighs the evidence and all reasonable inferences, [and] considers the credibility
of witnesses.” State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).
The question for the reviewing court is “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. The discretionary power to grant a
new trial should be exercised only in the exceptional case in which the evidence weighs
heavily against conviction.” Id.
{¶ 38} As stated above, we conclude that the record fails to demonstrate that trial
counsel was ineffective. Thus, Watters’s argument in this regard lacks merit.
Furthermore, we conclude that the judgment is not against the manifest weight of the
evidence – that this is not a case in which the evidence weighs heavily against conviction.
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{¶ 39} There is evidence in this record that police dispatch received a call
indicating that a person in a vehicle, described as a black Pontiac Grand Am, had shot at
a vehicle occupied by Cherry, Sheffield and Whaley. Cherry, who made the call, also
indicated that the car had wrecked on Florence and East Main Street. Police located the
car, which had hit a pole. Police observed a weapon in the car. Footsteps from the car
led to Watters. After initially denying that he discharged the weapon, Watters eventually
confessed to shooting at least one round from the gun. A bullet found in Cherry’s car,
as well as a bullet removed from Whaley, had characteristics similar to those fired from
the gun by a forensic expert.
{¶ 40} We conclude that this not the rare case where the jury lost its way. The
Second Assignment of Error is overruled.
VI. The Imposition of Consecutive Sentences Is Not Clearly
and Convincingly Unsupported by the Record
{¶ 41} Watters’s Third Assignment of Error states as follows:
THE TRIAL COURT ERRED IN SENTENCING APPELLANT
WATTERS TO CONSECUTIVE SENTENCES, RATHER THAN
CONCURRENT SENTENCES
{¶ 42} Watters claims that the imposition of consecutive sentences is contrary to
law because he was denied the effective assistance of counsel at trial, and because the
convictions are against the manifest weight of the evidence. He further contends he did
not get a fair opportunity to address the court regarding sentencing, and that counsel did
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not communicate with him regarding the benefits of addressing the court.
{¶ 43} We have concluded, in Part IV, above, that the record fails to demonstrate
ineffective assistance of trial counsel, and in Part V, above, that the convictions are not
against the manifest weight of the evidence. Whether counsel communicated with
Watters regarding addressing the court at sentencing is not something that can be
determined from this record. Watters was given the opportunity to, and did, address the
court at sentencing. We conclude, therefore, that none of these arguments have merit.
{¶ 44} We turn to the issue of whether the trial court erred in imposing consecutive
sentences. In imposing multiple sentences, a sentencing judge has discretion to order
an offender to serve individual prison terms consecutively. R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds
[1] that the consecutive service is necessary to protect the public
from future crime or to punish the offender and
[2] that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses
to the public, and if the court also finds
[3] any of the following:
(a) 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.
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(b) 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.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 45} In imposing consecutive sentences, the trial court must make the statutory
findings and incorporate them in its sentencing entry, but the trial court is not required to
state reasons to support its findings. State v. Bonnell, 140 Ohio St. 3d 209, 2014–Ohio–
3177, 16 N.E.3d 659, ¶ 37. As stated by the Supreme Court, “a word-for-word recitation
of the language of the statute is not required, and as long as the reviewing court can
discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld.” Bonnell at ¶ 29.
{¶ 46} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
State v. Marcum, 146 Ohio St. 3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 9. Under R.C.
2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may
vacate the sentence and remand for resentencing, only if it “clearly and convincingly”
finds either: (1) that the record does not support certain specified findings; or (2) that the
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sentence imposed is contrary to law. We do not review a trial court's sentence for an
abuse of discretion. Marcum at ¶ 10.
{¶ 47} In the case before us, the trial court stated, both at the sentencing hearing,
and in the termination entry, that it had considered the appropriate statutory reasons for
imposing consecutive sentences. Watters does not argue that the trial court’s findings
regarding consecutive sentences are not supported by the record. Indeed, he appears
to concede this issue in his appellate brief. And we do not clearly and convincing find
that the trial court's decision to impose consecutive sentences is unsupported by the
record.
{¶ 48} The Third Assignment of Error is overruled.
VII. Conclusion
{¶ 49} All of Watters’s assignments of error having been overruled, the judgment
of the trial court is Affirmed.
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WELBAUM, J. (concurring):
{¶ 50} I concur with the well-written decision to affirm the convictions and
sentence. I very respectfully write solely to discuss the Confrontation Clause, which is
the only area of alleged ineffective assistance of counsel that the dissent mentions.
{¶ 51} As a preliminary point, I note that Watters did not raise any issues on appeal
pertaining to the Confrontation Clause. In fact, the issue was never mentioned in the
appellate briefs.
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{¶ 52} Our role as an appellate court is to address the issues raised by the parties,
not to insert issues that were neither raised nor discussed. See, e.g., State v. Murnahan,
117 Ohio App. 3d 71, 82, 689 N.E.2d 1021 (2d Dist.1996) (refusing to consider error
asserted in reply brief, because “[a]n appellant may not use a reply brief to raise new
issues or assignments of error”)2; State v. McComb, 2d Dist. Montgomery No. 26481,
2015-Ohio-2556, ¶ 14 (again refusing to consider error raised for the first time in reply
brief.); State v. Shaffer, 11th Dist. Portage No. 2002-P-0133, 2004-Ohio-336, ¶ 39
(refusing to consider issue that trial counsel was ineffective in failing to object to testimony
of police officers, where issue was raised only in appellant’s reply brief); State ex rel.
Petro v. Gold, 166 Ohio App. 3d 371, 2006-Ohio-943, 850 N.E.2d 1218, ¶ 76 (10th Dist.)
(refusing to consider issue that was raised only in reply brief); and State v. Hale, 7th Dist.
Monroe No. 04 MO 14, 2005-Ohio-7080, ¶ 10 (disregarding assignment of error relating
to statute’s alleged unconstitutionality where appellant’s argument was only five
sentences long and contained no citation of authority on the issue). In Gold, the court
further stressed that it is “not appropriate for this court to construct the legal arguments in
support of an appellant's appeal.” Gold at ¶ 94.
{¶ 53} In the case before us, Watters made no attempt to raise the Confrontation
Clause even in a reply brief, and the issue was neither raised nor argued by the parties
on appeal. As a result, we are precluded from inserting this issue and then basing our
decision on it.
2We refused to follow Murnahan on unrelated grounds in State v. Skrip, 2d Dist.
Greene No. 2001-CA-74, 2002 WL 538930, *6 (Apr. 12, 2002).
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{¶ 54} Even if we could consider the issue, I disagree with the dissent’s
characterization of the objection to the 911 call, and to the dissent’s conclusion that
defense counsel’s objection fell below an objective standard of reasonableness.
{¶ 55} “Ohio courts have consistently held that trial counsel's failure to make
objections is within the realm of trial tactics and does not establish ineffective assistance
of counsel.” State v. Taylor, 9th Dist. Lorain No. 01CA007945, 2002-Ohio-6992, ¶ 76,
citing State v. Cureton, 9th Dist. Medina No. 01CA3219-M, 2002–Ohio–5547, ¶ 55.
Accord State v. Huckleby, 2d Dist. Montgomery No. 25597, 2013-Ohio-4613, ¶ 9.
{¶ 56} The Supreme Court of Ohio has stressed that “to fairly assess counsel's
performance, ‘a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.’ ” State v. Conway, 109
Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101, quoting Strickland v.
Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
{¶ 57} Consistent with these principles, we have observed that “ ‘[h]indsight is not
permitted to distort the assessment of what was reasonable in light of counsel's
perspective at the time, and a debatable decision concerning trial strategy cannot form
the basis of a finding of ineffective assistance of counsel.’ ” State v. Hartman, 2d Dist.
Montgomery No. 26609, 2016-Ohio-2883, ¶ 46, quoting State v. Woullard, 158 Ohio
App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 37 (2d Dist.) (Other citations omitted.)
In addition, we have stressed that “[a] reviewing court may not second-guess decisions
of counsel which can be considered matters of trial strategy * * *.” (Citation omitted.)
State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.) Of course, in the case
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before us, we do not have a situation where trial counsel failed to object; the situation is
one in which the dissent wishes to specify the manner in which trial counsel is required
to object.
{¶ 58} Contrary to the dissent’s implication, the trial court and parties discussed
the Confrontation Clause issue in detail at trial, and defense counsel specifically objected
to the admission of the 911 call and to the trial court’s ruling on the Confrontation Clause.
See Transcript of Proceedings, Vol. I, pp. 101-105.
{¶ 59} Prior to the time the audio of the 911 call was played, the trial court asked
the parties to approach the bench. At that time, defense counsel objected to the call on
a foundational basis. The court then expressed concern over whether the person who
made the call to the police would be present to testify, and about the possibility of a
Confrontation Clause issue. Id. at p. 101. At that point, the State commented that case
law would indicate the call was not testimonial, and that the State could present the court
with case law over the recess. Defense counsel then said he would like to see the case
law, and that he would not object if the caller were going to testify. In response, the State
represented that the 911 caller was not going to testify. Id. at p. 102.
{¶ 60} After the recess, the State provided the court with extensive case law
indicating that 911 calls made during emergencies are not testimonial. Id. at pp. 104-
105. At this point, the following exchange occurred:
THE COURT: Okay. Do you want to add anything?
MR. PIERSON: Is the U.S. case Davis vs –
MRS. MCCORMICK: Yes, and it says the court revisited the issue
in the consolidated cases of Davis v Washington and Hammon v. Indiana.
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The same thing. The Supreme Court of Ohio talks about it in State v. Stahl.
The Second District talks about it in State v. Eicholtz.
(Judge Reading)
THE COURT: Based upon that I do find that the 911 call then would
not be testimonial, and that would come in under 803(1) and 803(2), present
sense impression and excited utterance.
MR. PIERSON: I’ll just make an objection for the record.
THE COURT: Note the objection.
Id. at p. 105.
{¶ 61} As a result, defense counsel did explicitly object to admission of the 911
call, and the trial court and parties were aware of the relevant case law, including authority
from our own district. Defense counsel also objected again at the end of the State’s case
to admission of the CD of the 911 call. Transcript of Proceedings, Vol. II, p. 295. It is
hard to imagine what more trial counsel could have done. Even if counsel had failed to
object, this would be a matter of trial strategy.
{¶ 62} Furthermore, under pertinent standards, the entire 911 call was properly
admitted. “The Sixth Amendment's Confrontation Clause provides that, ‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.’ ” Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (2004). Crawford involved the State’s attempt to introduce a recorded statement
from the defendant’s wife, who had been interrogated twice by the police. The wife did
not testify at trial, due to the marital privilege, and her recorded testimony was presented
to show that her husband had not acted in self-defense when he stabbed another man.
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Id. at 38-41. The United States Supreme Court concluded that the wife’s statement was
testimonial and that its admission violated the Confrontation Clause of the Sixth
Amendment. Id. at 68-69.
{¶ 63} The court held that “[w]here testimonial evidence is at issue * * * the Sixth
Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” Id. at 68. However, the court also held that where
evidence is non-testimonial, the Confrontation Clause is not implicated, and the States
have flexibility in developing their hearsay law. Id. See also State v. Stahl, 111 Ohio
St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 16, discussing Crawford at 68.
{¶ 64} In Stahl, the court observed that Crawford had declined to define the term
“ ‘testimonial.’ ” Id. at ¶ 19. Stahl also noted that the United States Supreme Court had
provided additional guidance about testimonial statements in two cases that involved the
“excited-utterance exception to the hearsay rule.” Id. at ¶ 22, citing Davis v. Washington,
547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224.3 One case in Davis involved a 911 call
that a domestic violence victim made, and the other involved statements that a domestic
violence victim made after officers questioned her and her husband (the alleged
aggressor) after coming to their home. In both situations, the victim did not testify at trial.
Davis at 817-821.
{¶ 65} In Davis, the Supreme Court of the United States stressed that:
3 Davis consisted of two separate cases, as one case occurred in Washington State
(Washington v. Davis), and the other occurred in Indiana (Indiana v. Hammon).
However, the United States Supreme Court considered both cases during the same
opinion. Davis at 817-819. These are the cases referenced during the discussion of
the Confrontation Clause issue in the trial court. Transcript of Proceedings, Vol. I, p.
105.
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Without attempting to produce an exhaustive classification of all
conceivable statements – or even all conceivable statements in response
to police interrogation – as either testimonial or nontestimonial, it suffices to
decide the present cases to hold as follows: Statements are nontestimonial
when made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency. They are
testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation
is to establish or prove past events potentially relevant to later criminal
prosecution.
Davis at 822.
{¶ 66} In distinguishing the 911 call in Davis from the circumstances involved in
Crawford, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, the court made the following
observations, which are pertinent to the case before us:
The question before us in Davis, then, is whether, objectively
considered, the interrogation that took place in the course of the 911 call
produced testimonial statements. When we said in Crawford, supra, at 53,
124 S. Ct. 1354, that “interrogations by law enforcement officers fall squarely
within [the] class” of testimonial hearsay, we had immediately in mind (for
that was the case before us) interrogations solely directed at establishing
the facts of a past crime, in order to identify (or provide evidence to convict)
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the perpetrator. The product of such interrogation, whether reduced to a
writing signed by the declarant or embedded in the memory (and perhaps
notes) of the interrogating officer, is testimonial. It is, in the terms of the
1828 American dictionary quoted in Crawford, “ ‘[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.’ ”
541 U.S., at 51, 124 S. Ct. 1354. (The solemnity of even an oral declaration
of relevant past fact to an investigating officer is well enough established by
the severe consequences that can attend a deliberate falsehood. * * * ) A
911 call, on the other hand, and at least the initial interrogation conducted
in connection with a 911 call, is ordinarily not designed primarily to
“establis[h] or prov[e]” some past fact, but to describe current circumstances
requiring police assistance.
The difference between the interrogation in Davis and the one in
Crawford is apparent on the face of things. In Davis, McCottry [the
domestic violence victim] was speaking about events as they were actually
happening, rather than “describ [ing] past events,” Lilly v. Virginia, 527 U.S.
116, 137, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999) (plurality opinion).
Sylvia Crawford's interrogation, on the other hand, took place hours after
the events she described had occurred. Moreover, any reasonable listener
would recognize that McCottry (unlike Sylvia Crawford) was facing an
ongoing emergency. Although one might call 911 to provide a narrative
report of a crime absent any imminent danger, McCottry's call was plainly a
call for help against bona fide physical threat. Third, the nature of what
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was asked and answered in Davis, again viewed objectively, was such that
the elicited statements were necessary to be able to resolve the present
emergency, rather than simply to learn (as in Crawford ) what had happened
in the past. That is true even of the operator's effort to establish the identity
of the assailant, so that the dispatched officers might know whether they
would be encountering a violent felon. * * * And finally, the difference in the
level of formality between the two interviews is striking. Crawford was
responding calmly, at the station house, to a series of questions, with the
officer-interrogator taping and making notes of her answers; McCottry's
frantic answers were provided over the phone, in an environment that was
not tranquil, or even (as far as any reasonable 911 operator could make
out) safe.
We conclude from all this that the circumstances of McCottry's
interrogation objectively indicate its primary purpose was to enable police
assistance to meet an ongoing emergency. She simply was not acting as
a witness; she was not testifying. What she said was not “a weaker
substitute for live testimony” at trial, United States v. Inadi, 475 U.S. 387,
394, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986), like Lord Cobham's statements
in Raleigh's Case, 2 How. St. Tr. 1 (1603), or Jane Dingler's ex parte
statements against her husband in King v. Dingler, 2 Leach 561, 168 Eng.
Rep. 383 (1791), or Sylvia Crawford's statement in Crawford. In each of
those cases, the ex parte actors and the evidentiary products of the ex parte
communication aligned perfectly with their courtroom analogues.
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McCottry's emergency statement does not. No “witness” goes into court to
proclaim an emergency and seek help.
{¶ 67} (Emphasis sic.) (Citations omitted.) Davis, 547 U.S. at 826-828, 126 S. Ct.
2266, 165 L. Ed. 2d 224.
{¶ 68} Subsequently, the United States Supreme Court further explained “the
‘ongoing emergency’ circumstance addressed in Davis.” Michigan v. Bryant, 562 U.S.
344, 359, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). In contrast to Davis, which involved
the domestic violence context, the court in Bryant confronted a nondomestic dispute, and
“circumstances in which the ‘ongoing emergency’ discussed in Davis extends beyond an
initial victim to a potential threat to the responding police and the public at large.” Id.
The court concluded that this required additional clarification of what Davis meant by
stating that “ ‘the primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency.’ ” Id., quoting Davis at 822. The court then clarified that
in order to make this determination, it would “objectively evaluate the circumstances in
which the encounter occurs and the statements and actions of the parties.” Id.
{¶ 69} In this regard, the court observed in Bryant that
An objective analysis of the circumstances of an encounter and the
statements and actions of the parties to it provides the most accurate
assessment of the “primary purpose of the interrogation.” The
circumstances in which an encounter occurs – e.g., at or near the scene of
the crime versus at a police station, during an ongoing emergency or
afterwards – are clearly matters of objective fact. The statements and
actions of the parties must also be objectively evaluated. That is, the
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relevant inquiry is not the subjective or actual purpose of the individuals
involved in a particular encounter, but rather the purpose that reasonable
participants would have had, as ascertained from the individuals’
statements and actions and the circumstances in which the encounter
occurred.
(Footnote omitted.) Bryant at 360. Accord State v. Jones, 135 Ohio St. 3d 10, 2012-
Ohio-5677, 984 N.E.2d 948, ¶ 150.
{¶ 70} The court stressed in Bryant that the existence of an ongoing emergency is
one of the most important factors in assessing an interrogation’s primary purpose,
because it focuses participants on something other than proof of past events for purposes
of criminal prosecutions, and the prospect of fabrication is “presumably significantly
diminished.” Bryant at 361. The court likened this to the logic for permitting the
“excited utterance” exception to hearsay. Id. In addition, the court noted that Davis
involved a domestic violence situation with “a known and identified perpetrator” and “a
narrower zone of potential victims than cases involving threats to public safety.” Id. at
363. In this latter situation, “[a]n assessment of whether an emergency that threatens
the police and public is ongoing cannot narrowly focus on whether the threat solely to the
first victim has been neutralized because the threat to the first responders and public may
continue.” (Citation omitted.) Id.
{¶ 71} The court further emphasized that “the duration and scope of an emergency
may depend in part on the type of weapon employed.” Bryant, 562 U.S. at 364, 131
S. Ct. 1143, 179 L. Ed. 2d 93. Again, the court distinguished Davis because the assault in
Davis involved fists, rather than guns. Id. The court did note that an emergency
-28-
interrogation could evolve into testimonial statements in certain instances. For example,
the declarant could give police information indicating that what seemed to be an
emergency was no longer such, or that what appeared to be a public threat was actually
private. Id. at 365. Similarly, this could occur “if a perpetrator is disarmed, surrenders,
is apprehended, or, as in Davis, flees with little prospect of posing a threat to the public.”
Id.
{¶ 72} The court also observed that “the statements and actions of both the
declarant and interrogators provide objective evidence of the primary purpose of the
interrogation.” (Emphasis added.) Id. at 367. Bryant involved questions asked by the
police of a victim, who was lying mortally wounded in a gas station parking lot. The
shooter was not on the scene, and the shooting had occurred a few blocks away, at the
shooter’s residence. Id. at 371-374. However, the court concluded that the primary
purpose of the questions was to meet an ongoing emergency. In this regard, the court
noted that the questions the police asked – “ ‘what had happened, who had shot him, and
where the shooting occurred,’ * * * – were the exact type of questions necessary to allow
the police to ‘ “assess the situation, the threat to their own safety, and possible danger to
the potential victim” ’ and to the public, * * * including to allow them to ascertain ‘whether
they would be encountering a violent felon * * * .’ ” (Citations and footnote omitted.) Id.
at 376, quoting Davis at 832 and 827.
{¶ 73} In my view, Davis and Bryant, and the “primary purpose” test are dispositive
of any Confrontation Clause issue. The 911 call clearly occurred during an ongoing
emergency, as the caller was in the middle of a shoot-out on a public highway. During
the course of the call, the only “interrogation” consisted of questions from the 911
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dispatcher. She repeatedly attempted to clarify the events as they were happening, the
location, and a description of the people and vehicles, while gunshots could be heard in
the background. The caller realized during the call that the front seat passenger had
been shot and told the dispatcher that he was now driving her to a hospital. These are
circumstances objectively indicating that the primary purpose of the dispatcher’s
questions and the caller’s statements were to enable police assistance to meet an
ongoing emergency. The Confrontation Clause was not violated because the call was
made during the course of an ongoing gun battle in which a victim was murdered. There
is no indication from the record that a reasonable person in the caller’s position would
have had the purpose that his statement would be used against the accused in
investigating and prosecuting the crime.
{¶ 74} In State v. Ward, 2d Dist. Montgomery No. 26773, 2016-Ohio-5354, we
concluded that very similar statements made during a 911 call were not testimonial. Id.
at ¶ 25-29. The case before us presents even stronger circumstances than Ward, as the
victim in Ward called 911 after the perpetrator had already fled the scene in an auto. Id.
at ¶ 28. However, we cited authority indicating that “an ongoing emergency situation can
exist after the perpetrator has left the scene if a potential threat to the police or the public
remains.” Id., citing Cleveland v. Merritt, 8th Dist. Cuyahoga No. 103275, 2016-Ohio-
4693, ¶ 10, 19. This is also consistent with the decisions in Davis and Bryant.
{¶ 75} In the case before us, not only were the individuals in Cherry’s car in danger,
the public was in danger due to the fact that people were shooting firearms on public
highways. Even at the end of 911 call, the police did not know if the individual who was
fleeing was armed and presented a danger to the public. The police were entitled to ask
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questions of the 911 caller to address these matters.
{¶ 76} In State v. Byrd, 160 Ohio App. 3d 538, 2005-Ohio-1902, 828 N.E.2d 133
(2d Dist), we discussed two alleged Confrontation Clause situations: a 911 call by a
female who had seen the defendant beating his girlfriend in front of his home, and an
officer’s testimony about statements made by the alleged victim, the defendant’s
girlfriend. Id. at ¶ 2-4. Neither of these individuals testified at trial. Id. at ¶ 8.
{¶ 77} Regarding the 911 call, we concluded that the content was not testimonial
in nature and was properly admitted. In this regard, we stated that:
“The 911 call – usually, a hurried and panicked conversation
between an injured victim and a police telephone operator – is simply not
equivalent to a formal pretrial examination by a justice of the peace in
Reformation England. If anything, it is the electronically augmented
equivalent of a loud cry for help. The Confrontation Clause was not
directed at such a cry.
“Moreover, a 911 call can usually be seen as part of the criminal
incident itself, rather than as part of the prosecution that follows. Many 911
calls are made while an assault or homicide is still progress. Most other
911 calls are made in the immediate aftermath of the crime. Indeed, the
reason why a 911 call can qualify as an ‘excited utterance’ exempt from the
rules of evidence barring hearsay is that very little time has passed between
the exciting event itself and the call for help; the 911 call qualifies as an
excited utterance precisely because there has been no opportunity for the
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caller to reflect and falsify her (or his) account of events.”
Byrd at ¶ 19-20, quoting People v. Moscat, 3 Misc. 3d 739, 746, 777 N.Y.S.2d 875
(N.Y.Crim.Ct.2004).
{¶ 78} Byrd is wholly supportive of admitting the content of the 911 call in the case
before us.
{¶ 79} There is also no doubt that Cherry’s statements during the 911 call fit within
the hearsay exception in Evid.R. 803(2) for excited utterances, and the dissent does not
argue otherwise. In addition to the stress evidenced during the 911 call, a police officer
who responded to the hospital as a result of the 911 call was on the scene when the car
with the gunshot victim arrived. Transcript of Proceedings, Vol. I (Testimony of Officer
Jerome Montico), pp. 108-109. This officer described the demeanor of the two males in
the car (who were motioning for help) as “[f]rantic, panicked, hysterical.” Id. at 110.
{¶ 80} Finally, I disagree with the dissent’s position that Watters was prejudiced by
counsel’s alleged failure to properly argue the Confrontation Clause. Again, this issue
was correctly argued in the trial court; the evidence, in fact, was properly admitted; and
the matter has not been raised on appeal. And, as was noted by Judge Fain, the
judgment is not against the manifest weight of the evidence. Majority Opinion, ¶ 38.
{¶ 81} Contrary to the implication in the dissent, there was substantial evidence
beyond the testimony of the “sole eyewitnesses.” As an initial matter, Watters’ car would
have been discovered by the police almost immediately, anyway. Specifically,
Springfield Police Sergeant Travis Baader was on duty at the time of the incident, and
was at a Pizza Hut on East Main Street in Springfield when he heard several shots being
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fired. Baader then called police dispatch to see if any calls had been received about
shots having been fired. After being informed that dispatch had received a call about
shots further down on East Main Street, Baader proceeded that way, and discovered the
car that had wrecked. Once Baader arrived at the scene, he made sure no one was in
the car. At that time, Baader saw a firearm on the floorboard of the car, as well as tracks
in the snow, heading into the cemetery. Transcript of Proceedings, Vol. I, Testimony of
Travis Baader, pp. 139-140. After following the tracks, the police discovered Watters.
{¶ 82} Moreover, “ ‘direct evidence of a fact is not required.’ ” State v. Lott, 51
Ohio St. 3d 160, 167, 555 N.E.2d 293 (1990), quoting Michalic v. Cleveland Tankers, Inc.,
364 U.S. 325, 330, 81 S. Ct. 6, 5 L. Ed. 2d 20 (1960). (Other citation omitted.) The
Supreme Court of Ohio has also stressed that “ ‘[c]ircumstantial evidence * * * may also
be more certain, satisfying and persuasive than direct evidence.’ ” Id., quoting Michalic
at 330. In Lott, the court emphasized that “[m]urder convictions and death sentences
can rest solely on circumstantial evidence.” (Citations omitted.) Id. As a result,
Watters’ convictions could have been sustained solely on the basis of circumstantial
evidence.
{¶ 83} The circumstantial evidence in the case before us includes tracks of
footprints leading directly from the wrecked car to Watters, who was outside on the steps
of an apartment building in extremely cold temperatures and a snow storm without being
properly dressed for the weather. Watters was shivering, smelled strongly of hand-
sanitizer, and did not even claim that he was visiting someone at the apartment building.
Instead, he stated that he was coming from a friend’s house, but he could not recall
exactly where the house was. Transcript of Proceedings, Vol. I, Testimony of Officer Deric
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Nichols, pp. 134-136; Testimony of Sergeant Travis Baader, p. 140; Testimony of Officer
Ronnie Terry, pp. 143-146; and Testimony of Officer Andrew Bronsord, pp. 151-153.
{¶ 84} The Volkswagen in which the victim was riding as a front seat passenger
sustained three shots in the front, one of which entered the car through the front
windshield. Transcript of Proceedings, Vol. I, Testimony of Officer Jeffrey Steinmetz, pp.
192-194, and 200-203. “Coincidentally,” the firearm in the car that Watters had been
driving had a capacity of thirty rounds of ammunition, and three rounds were missing. Id.
at 187-190. No other firearms were found, including in the 911 caller’s car.4 One of the
bullet fragments in the victim was identified as having similar class characteristics as
bullets used in the type of firearm found in the car Watters had been driving. However,
the bullet parts removed from the victim were only fragments, and there was not enough
material present to positively state that they matched the firearm. Transcript of
Proceedings, Vol. II, Testimony of Dr. Bryan Castro, pp. 233-236, and Testimony of
Timothy Shepherd, pp. 245-249. The firearm was also in excellent operating condition.
Shepherd at p. 244.
{¶ 85} In addition to the above circumstantial evidence, the State presented direct
evidence in the form of Watters’ own statements. Notably, Watters told the police three
different stories. First, he denied even being in an accident. Next, Watters admitted
handling the gun while at E&J’s Fun Bar, but claimed the gun did not go off. Walters
identified a person allegedly nicknamed “Emo,” who had handed him the gun, but the
4 As was noted, no firearms were found in the 911 caller’s car. That car was under
observation by officers from the time it arrived at the hospital, and was later processed
by the police. Transcript of Proceedings, Vol. I, Testimony of Officer Jerome Montico,
pp. 110, and Officer Jeffrey Steinmetz, pp. 191-192 and 204.
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police were never able to locate this individual, because they only had his nickname and
no such person was in the police database. Transcript of Proceedings, Vol. II, Testimony
of Detective Ronald Jordan, pp. 276-279 and 292.
{¶ 86} In the third version, Watters admitted firing the gun. He stated that he hit
the trigger once and the gun “fired up the street.” Id. at pp. 279-280, and 282. However,
the trigger would have to be pulled each time to detonate a round of ammunition, because
the firearm was a semi-automatic weapon, not a fully automatic weapon. Transcript of
Proceedings, Volume II, Testimony of Timothy Shepherd, pp. 244-245. Again, according
to Watters, this occurred at the bar, and he then pulled off, or drove away. Jordan at p.
280. Other direct evidence included surveillance video from a business establishment
on East Main Street, close to where the vehicle crashed. The video, which was taken
around the time of the 911 call, showed one vehicle in front, heading east with no
headlights or taillights on. About thirteen seconds later, a second vehicle appeared, with
lights and taillights on, and this vehicle was followed about one second later, by a third
vehicle, which was larger, maybe a truck. Id. at pp. 284-285, 288. Although the cars
could not be specifically identified, the sequence is completely consistent with Watters
fleeing and being chased by the 911 caller, who was being chased, in turn, by a truck.
{¶ 87} Among other things, Watters was convicted of Murder, in violation of R.C.
2903.02(A). This statute provides, in pertinent part, that “[n]o person shall purposely
cause the death of another * * *.”
{¶ 88} “Purpose requires an intention to cause a certain result or to engage in
conduct that will cause that result.” (Emphasis added.) State v. Seiber, 56 Ohio St. 3d
4, 13, 564 N.E.2d 408 (1990), citing R.C. 2901.22(A). “ ‘It is a fundamental principle that
-35-
a person is presumed to intend the natural, reasonable and probable consequences of
his voluntary acts.’ ” Id., quoting State v. Johnson, 56 Ohio St. 2d 35, 39, 381 N.E.2d 637
(1978). (Other citation omitted.)
{¶ 89} The court stressed in Seiber that:
Intent can be determined from the surrounding facts and circumstances.
See State v. Johnson, supra, 56 Ohio St.2d at 38, 10 O.O.3d at 80, 381
N.E.2d at 640; State v. Robinson (1954), 161 Ohio St. 213, 53 Ohio Op. 96, 118
N.E.2d 517, paragraph five of the syllabus. “[A] firearm is an inherently
dangerous instrumentality, the use of which is likely to produce death.”
State v. Widner (1982), 69 Ohio St. 2d 267, 270, 23 O.O.3d 265, 266, 431
N.E.2d 1025, 1028.
Seiber at 13-14.
{¶ 90} Watters was also convicted of Felony Murder, which requires only that a
death be caused as a “proximate result of the offender's committing or attempting to
commit an offense of violence that is a felony of the first or second degree * * *.” R.C.
2903.02(B). This statute does not have a mens rea requirement, as the predicate
offense contains the mens rea element. State v. Fry, 125 Ohio St. 3d 163, 2010-Ohio-
1017, 926 N.E.2d 1239, ¶ 43 (noting that a “defendant may be found guilty of felony
murder even if there was no intent to cause the victim's death”). (Citation omitted.)
{¶ 91} Purposeful Murder and Felony Murder also “do not require a finding of
premeditation and deliberation * * *.” State v. Dillon, 2d Dist. Clark No. 2014-CA-36,
2016-Ohio-1561, ¶ 28.
{¶ 92} The predicate offense in the case before us is Felonious Assault, which
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requires a culpable mental state of “knowingly.” Fry at ¶ 45. The indictment charged
Watters with having violated R.C. 2903.11(A)(2), which prohibits persons from knowingly
causing or attempting to cause harm to another “by means of a deadly weapon or
dangerous ordnance.” “A person acts knowingly, regardless of purpose, when the
person is aware that the person's conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when the
person is aware that such circumstances probably exist.” R.C. 2901.22(B).
{¶ 93} Again, Watters’ own statement indicates that, at a minimum, he shot the
firearm in a public area, up the street behind him where two cars were located, and the
entirety of the evidence indicates that Watters, in fact, shot the gun three times at the
Volkswagen containing the murder victim. “When * * * the accused has discharged a
firearm multiple times in a populated area, he may be found to have acted ‘knowingly’ as
to, and thus may be convicted of deadly-weapon felonious assault upon, any person in
the line of fire.” State v. Derkson, 1st Dist. Hamilton No. C-130844, 2014-Ohio-3831,
¶ 15, citing State v. Mills, 62 Ohio St. 3d 357, 369, 582 N.E.2d 972 (1992). (Other
citations omitted.) See also, State v. Gray, 10th Dist. Franklin No. 04AP-938, 2005-Ohio-
4563, ¶ 12 (“firing a gun where there is a risk of injury to one or more persons is sufficient
evidence to prove that the defendant knowingly attempted to cause physical harm. Even
firing a weapon randomly in the direction of individuals arguably within range of the
shooter is sufficient to demonstrate an attempt to cause physical harm.”) (Citation
omitted.)
{¶ 94} Motive also “is not an element of the crime of felonious assault,” and the
State need not establish motive in criminal trials to secure convictions. State v. Wilson,
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9th Dist. Summit No. 26683, 2014-Ohio-376, ¶ 19. Accord State v. Herron, 2d Dist.
Montgomery No. 19894, 2004-Ohio-773, ¶ 57; State v. Chapman, 2d Dist. Clark No. 95-
CA-80, 1996 WL 596533, *4 (Oct. 11, 1996); State v. Youngblood, 2d Dist. Clark No. 07-
CA-118, 2009-Ohio-3008, ¶ 13.
{¶ 95} Accordingly, I very respectfully concur with Judge Fain’s opinion that the
judgment of the trial court should be affirmed. However, I also very respectfully disagree
with the dissenting opinion.
DONOVAN, P.J., dissenting:
{¶ 96} I disagree. In my view, this record establishes ineffective assistance of
counsel. Without the testimony of the sole eyewitnesses, Cherry and Sheffield, a
meaningful defense strategy necessarily should have included an argument as well as
citation of authority for the proposition that Watters was being denied his right to confront
the witnesses against him under the Ohio and United States Constitution. Instead, when
the entire 911 call was played and admitted, a general objection was made, which was
completely unsupported by any cogent argument or citation to case authority. This falls
below an objective standard of reasonableness and Watters was prejudiced thereby. I
would reverse and order a new trial.
..........
Copies mailed to:
Megan M. Farley
Tom O. Merritt
Hon. Douglas M. Rastatter