State v. Harris , 90 N.E.3d 342 ( 2017 )

[Cite as State v. Harris, 2017-Ohio-2751.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104329
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BYRON HARRIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-589543-A
BEFORE: Keough, A.J., Kilbane, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: May 11, 2017
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street, Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Jeffrey Schnatter
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:
{¶1} Defendant-appellant, Byron Harris, appeals his convictions. For the reasons
that follow, we affirm.
{¶2} In February 2015, Harris was named in a seven-count indictment charging
him with aggravated murder (Count 1), murder (Count 2), two counts of felonious assault
(Counts 3 and 4), discharge of a firearm on or near prohibited premises (Count 5), and
two counts of a having weapon while under disability (Counts 6 and 7). Counts 1
through 5 contained one- and three-year firearm specifications, and Counts 3 through 5
contained repeat violent offender specifications and notices of prior conviction.
{¶3} Prior to the start of trial, the state dismissed Count 7, and Harris executed a
jury waiver on Count 6 and the repeat violent offender specifications and notices of prior
conviction attendant to Counts 3 through 5. All other counts were tried before a jury,
who heard the following evidence.
{¶4} In the early afternoon of August 17, 2014, Tyler Spaulding was riding the bus
home after work. Seated in front of him were three males and a female who, according
to Tyler, were talking about robbing him. Fearing for his safety, he called his sister
Mary, told her what he had overheard, and asked her to have his brother meet him at the
bus stop. Mary testified that she called their brother Isaac Spaulding to meet Tyler.
{¶5} Tyler testified that two of the males — the one with the tattoo under his eye
and wearing blue jeans, and the other darker-skinned male with a backpack — got off the
bus near East 123rd Street. The other male and the female stayed on the bus.
{¶6} When Tyler got off the bus on Lakeview Road near Save-A-Lot, his brother
Isaac and his cousin’s girlfriend, Chastity Spencer, were waiting for him. Tyler told
them what had happened on the bus. As they were walking away, Tyler and Isaac’s
brother Harry Spaulding, and friend James Parker, Jr., approached. Although Tyler told
them what had happened, he indicated that it was over and to leave it alone.
{¶7} Meanwhile, over on Osceola Avenue, Martinez Hunter was sitting on a porch
when he received a call from his sister Mary that someone was trying to rob Tyler. After
leaving the residence, he saw three males — one who he knew from the neighborhood as
the “CD dude.” Martinez testified that the CD dude sells CDs and movies outside USA
Food Mart. Because Martinez had worked at USA Food Mart, he had seen the CD dude
numerous times. According to Martinez, the CD dude was wearing gray jogging pants
with no shirt and carrying a book bag on his back. He also testified that the CD dude has
a tattoo on his face. Martinez identified Harris in court as the “CD dude.”
{¶8} According to Martinez, one of the other males with Harris was shorter in
height with darker skin and dreadlocks; Martinez could not remember much about the
third male, except that he was short.
{¶9} Martinez testified that when Harris and the other two men walked by him,
Harris said “what’s up?” and Martinez, not knowing that the males had been on the bus
with his brother Tyler, responded the same. The males continued walking, not knowing
that they were about to cross paths with Tyler’s group, who were walking toward East
123rd Street.
{¶10} When Tyler saw two of the males from the bus, he pointed them out, and
Parker started yelling at them that he wanted to talk to them; when the males did not stop,
Parker questioned if they wanted to fight. The males started walking faster, and Tyler
and his group of four followed. Within moments, Tyler’s group of four grew to five
when their friend, Marcus Burton, joined the pursuit.
{¶11} Soon thereafter, Martinez saw Tyler, Marcus, Isaac, Harry, Chastity, and
Parker. He could hear Tyler yelling out to him to “stop them,” pointing to the group of
males and stating that they were the ones who tried to rob him. Martinez then witnessed
a transaction between Harris and his friends involving a book bag — Martinez initially
testified that he saw Harris retrieve a gun from the bag, but then later said the male with
the dreadlocks pulled the gun from the bag. Nevertheless, Harris took possession of the
gun.
{¶12} After the transaction, Harris and the other two males started running, and
Marcus and Parker chased after them. Martinez also followed as they all ran toward the
corner of Phillips Avenue and East 123rd Street by Satellite Cleaners. During the chase,
Martinez saw Harris pull the gun off his hip. Martinez testified that the gun was a .38
that he had seen before when Harris was trying to sell it at USA Food Mart.
{¶13} According to Martinez, when Harris pulled the gun, he told Marcus and
Parker that Harris had a “little ass gun.” Parker was now in between Martinez and
Harris, as he cut across Satellite Cleaners’ parking lot and ran to the middle of Phillips
Avenue. Harris was on the sidewalk about three or four houses down on Phillips Avenue
when he started shooting in the direction of Martinez and Parker. Martinez testified that
he heard a bullet go whistling by his ear. According to Martinez, the second gunshot hit
Parker’s hand, causing Parker to yell out that “It hit my hand.” Parker then retreated and
took cover behind a tree. However, Harris kept firing while approaching Parker, this
time hitting Parker in the arm area. Martinez testified that Harris was approximately
three or four feet from Parker and fired the gun again, hitting Parker in the chest, causing
Parker to spin around and ultimately collapse in Satellite Cleaners’ parking lot. Parker
was subsequently pronounced dead at MetroHealth Medical Center.
{¶14} Dr. Joseph Andrew Felo, deputy medical examiner who performed Parker’s
autopsy, testified about the gunshot wounds to Parker’s body. According to Dr. Felo,
one wound was consistent with the gun pointed at an angle in a downward direction, and
another wound was consistent with the gun being fired straight on. The exit wound of
one of the gunshots was consistent with Parker’s back up against something, like a tree.
{¶15} A grainy surveillance video was played during Martinez’s testimony that
showed Parker and his group following another group of individuals across the parking
lot of Satellite Cleaners. Martinez described to the jury his location in relation to Parker
and the shooter. The jury could see a sudden retreat by the larger group, Parker
retreating, and then collapsing in the parking lot. Detective Thomas Lynch also testified
about the video, stating that after the first shot and everyone scatters, about 10 to 15
seconds pass and the shooter approaches Parker, who is hiding behind a tree.
{¶16} According to Martinez, he was “right there” next to Parker and witnessed
the entire event. Detective Lynch testified that based on Martinez’s statement and the
surveillance video, Martinez was in the best position to witness the shooting. In fact,
Detective James Raynard recovered a .38 caliber casing in front of the third house down
on Phillips Avenue — the exact area where Martinez testified that he witnessed Harris
firing the gun.
{¶17} Sharon Collins, who lived four houses down from East 123rd Street on
Phillips Avenue, testified that she was sitting in her living room when her attention was
directed out her front window because she heard shouting. When she looked out her
window, she saw a black male wearing gray jogging pants pointing a gun toward the
corner of Phillips Avenue and East 123rd Street. She testified that she heard two to four
gunshots. She could not recall any more identifying details about the shooter, except that
the gun was not a revolver, and she could not identify the shooter at trial.
{¶18} When the police arrived, Martinez was interviewed on scene by Detective
Lynch. He told the officers that the shooter had a teardrop tattoo under his right eye, and
pointed to his own left eye — the jury saw that Harris has a teardrop tattoo under his left
eye. Detective Lynch testified that on the day of the shooting, Martinez described the
shooter as a black male with a teardrop tattoo, wearing gray jogging pants with no shirt.
{¶19} Subsequently, Martinez was shown two photo arrays and asked to identify
the CD dude — the man who shot Parker. In the first photo array, the photos were
generated based on information of a possible suspect, and the second photo array was
generated based on Harris’s description. In the first photo array, Martinez identified
another male and indicated that he was only 50 percent certain that he knew this
individual. Martinez identified Harris in the second photo array. At trial, Martinez
testified that the shooter wore gray jogging pants, and he was one hundred percent certain
that Harris shot Parker.
{¶20} The state also provided testimony from the five other members of Parker’s
group who witnessed various parts of the altercation from different vantage points. Each
witness provided differing details regarding the identity of the shooter, who was carrying
the backpack, and who handed the gun to the shooter.
{¶21} Like Martinez, Isaac knew Harris as the CD man, and stated that Harris shot
Parker. Isaac testified that when Parker was trying to “get to the guys,” the three guys
stopped and did a “transaction” with a book bag. Isaac described the males to the jury
along with the roles they played in the transaction — the male with the dreadlocks passed
the book bag to the man he knew as the CD guy with the tattoo on his face. According to
Isaac, the third guy was of average height and wearing a ball cap. Isaac identified Harris
as the CD guy, who he saw pull a gun from inside the book bag and subsequently shoot
Parker.
{¶22} However, Isaac was cross-examined with the formal written statement he
provided to the police shortly after the murder. His statement provided that he did not
know any of the males. Isaac testified that his statement was not true. Additionally, in
his statement, he described the males to the police: (1) 15-18 years old, tall, slim to
medium build, braided black hair, with a tattoo on the right side of his face, wearing
camouflage pants and an orange shirt carrying a backpack; (2) 18-year-old male, caramel
skin color, wearing burgundy pants and a white and black shirt, and a ball cap; (3) under
20 years old, black male, average build wearing a blue shirt and black jean shorts.
Additionally, the jury heard that Isaac told the police that he did not see any of the males
with a weapon. Again, Isaac told the jury that his statement was not true.
{¶23} While Martinez and Isaac unequivocally identified Harris as the shooter,
Marcus Burton and Harry Spaulding testified that Harris was not the shooter, but gave the
shooter the gun from the backpack. Marcus testified he recognized one of the males —
who had a tattoo and sold CDs at the USA Food Mart — from the neighborhood.
Marcus identified Harris in the courtroom as the man he recognized. However, Marcus
testified that Harris was not the shooter; rather, Harris took the gun out of the backpack
that the darker-skinned male was wearing and handed it to the darker-skinned male.
{¶24} Harry, Parker’s best friend, testified that he only recognized one of the
males — the one known as the “CD guy,” who was identified as Harris. Harry described
another male as light-skinned with tight braids, and the third as a darker-skinned,
heavy-set male with a “little [A]fro” hairstyle. Harry told the jury that Parker kept
arguing with the group of males. During that time, he saw Harris take the backpack off
his back and put it in front of him and then pass something to the darker-skinned male
wearing a striped shirt. According to Harry, once Harris passed the backpack to the
dark-skinned male, Harris and the other male ran away. However, when the scene
escalated between Parker and the darker-skinned male, the male started shooting.
{¶25} Chastity testified that the male with the book bag handed something from
his pocket to the male with the dreadlocks.
{¶26} Tyler’s identification was made solely on the presence of the teardrop tattoo
on Harris’s face. He testified that he saw the “tattoo guy” pull a gun out from the other
male’s book bag. He identified Harris in court as the shooter — as “the black guy with
the teardrop tattoo.” He made this in-court identification even though he had not
identified Harris in the two photo arrays he viewed shortly after the murder. On one of
the photo arrays, the officer wrote next to the photo that Tyler said: “The teardrop. I’ll
never forget the teardrop. He’s the shooter.” Tyler admitted he picked those individuals
because they each had a teardrop tattoo on their face. Additionally, Tyler admitted that
he and his brothers discussed that the male with the teardrop tattoo was the shooter prior
to talking with detectives on a later date.
{¶27} Detective Lynch testified that after the shooting, he received a telephone call
from Parker’s mother with information about the shooter and the name “Byron.” Based
on the descriptions, photo array identifications, the surveillance video, and the
information he received from Martinez and Parker’s mother, Detective Lynch obtained a
warrant for Harris’s arrest. Harris was subsequently arrested in September 2014 in
Texas.
{¶28} The jury found Harris guilty of all counts it considered, including the one-
and three-year firearm specifications, and the trial court found him guilty of all counts and
specifications tried to the bench. Harris was sentenced to life in prison with the
possibility of parole after 29 years.
{¶29} Harris now appeals, raising five assignments of error, which will be
addressed out of order.
I. Sufficiency of the Evidence — Aggravated Murder
{¶30} Harris argues in his second assignment of error that insufficient evidence
was presented to support his conviction for aggravated murder. Specifically, he contends
that the state failed to present sufficient evidence that the shooter acted with prior
calculation and design.
{¶31} A Crim.R. 29 motion challenges the sufficiency of the evidence. The test
for sufficiency requires a determination of whether the prosecution met its burden of
production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶
12. An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d
765 (2001). “‘The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.’” State v. Walker, Slip Opinion
No. 2016-Ohio-8295, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus.
{¶32} In the Ohio Supreme Court’s recent Walker decision, the court discussed the
elements of aggravated murder, specifically (1) purpose and (2) prior calculation and
design, addressing what each element requires. It stated in its syllabus, “the elements of
purpose and prior calculation and design are distinct, and the state must prove both to
support a conviction of aggravated murder under R.C. 2903.01.” Id. at syllabus.
{¶33} The Supreme Court reiterated that
[R.C. 2903.01(A) employs] the phrase, “prior calculation and design,” to
indicate an act of studied care in planning or analyzing the means of the
crime, as well as a scheme compassing the death of the victim. Neither the
degree of care nor the length of time the offender takes to ponder the crime
beforehand are critical factors in themselves, but they must be sufficient to
meet the proposed test of “prior calculation and design.” In this context,
momentary deliberation is considered insufficient to constitute a studied
scheme to kill.
(Emphasis sic.) Id. at ¶ 17, quoting Ohio Legislative Service Commission, Proposed
Ohio Criminal Code: Final Report of the Technical Committee to Study Ohio Criminal
Laws and Procedures, at 71 (1971). See also State v. Taylor, 78 Ohio St.3d 15, 18-19,
676 N.E.2d 82 (1997); State v. Woods, 8th Dist. Cuyahoga No. 99630, 2014-Ohio-1722, ¶
24.
{¶34} The Walker court succinctly concluded
[t]he phrase “prior calculation and design” by its own terms suggests
advance reasoning to formulate the purpose to kill. Evidence of an act
committed on the spur of the moment or after momentary consideration is
not evidence of premeditated decision or a studied consideration of the
method and the means to cause a death.
Walker, Slip Opinion No. 2016-Ohio-8295 at ¶ 18.
{¶35} The divided Walker court differed on whether the facts of the case were
sufficient evidence to conclude that Walker acted with the prior calculation and design,
with the dissent stressing the importance of viewing the evidence in the light most
favorable to the state when reviewing a sufficiency argument.
{¶36} The Walker majority determined that insufficient evidence was presented to
support Walker’s aggravated murder conviction. It concluded that witnesses provided
testimony to the jury of speculation as to what had happened, but the videos show an
assault that quickly escalated into chaos. For approximately 20 seconds of that chaos,
Walker was obscured from the security cameras by a pillar. The court reasoned that a jury
could reasonably infer that during that time, Walker decided to kill the victim by shooting
him, but it could not reasonably infer that he planned the murder beforehand with prior
calculation and design, because “[t]he element of prior calculation and design requires
evidence that supports more than the inference of purpose, [and] inferring prior
calculation and design from an inference of purpose is mere speculation.” Id. at ¶ 26.
{¶37} Therefore, the existence of prior calculation and design is determined on a
case-by-case basis analysis of the facts and evidence. State v. Jones, 91 Ohio St.3d 335,
345, 744 N.E.2d 1163 (2001). Although there is no bright-line test for determining prior
calculation and design, the Ohio Supreme Court has found that several factors, including
whether the accused and the victim knew each other, whether there was thought or
preparation in choosing the murder weapon or murder site, and whether the act was
“drawn out” or “an almost instantaneous eruption of events” should be weighed with the
totality of the circumstances surrounding the murder to determine whether there was prior
calculation and design. See Walker at ¶ 20, quoting Taylor at 19, quoting State v.
Jenkins, 48 Ohio App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976). “Aggravated murder
is a purposeful killing that also requires proof of prior calculation and design:
forethought, planning, choice of weapon, choice of means, and the execution of the plan.”
(Emphasis sic). Walker at ¶ 28.
{¶38} The Ohio Supreme Court has upheld findings of prior calculation and design
in short-duration emotional situations. “Pursuing and killing a fleeing or incapacitated
victim after an initial confrontation strongly indicates prior calculation and design.”
Walker at ¶ 22, citing State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d
996, ¶ 45, citing State v. Robbins, 58 Ohio St.2d 74, 78-79, 388 N.E.2d 755 (1979); see
also State v. Palmer, 80 Ohio St.3d 543, 569-570, 687 N.E.2d 685 (1997) (after victim
had fallen to the ground, defendant shot the victim in the head in an execution-style
manner). “Prior calculation and design can be found even when the killer 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), as long as the killer’s actions “went beyond a
momentary impulse and show that he was determined to complete a specific course of
action.” Conway at ¶ 46.
{¶39} In Palmer, the Supreme Court explained that sufficient evidence of prior
calculation and design existed when, after being involved in a minor accident with a
pickup truck, the defendant exited the vehicle with a loaded revolver that was cocked and
ready to fire and shot the truck’s driver twice in the head. Id. at 543, 568. Although the
killing took only moments, the court concluded that “[t]he evidence, when viewed in a
light most favorable to the state, was more than sufficient to show that [the defendant]
had adopted a plan to kill [the driver] prior to exiting [the] vehicle and that, with a level
of precision, [the defendant] followed through on his calculated decision to kill.” Id. at
569.
{¶40} However, at other times, the Supreme Court has declined to uphold findings
of “prior calculation and design” in explosive, short-duration situations. See Walker, and
State v. Reed, 65 Ohio St.2d 117, 418 N.E.2d 1359 (1981) (after a botched theft, accused
shot a pursuing civilian and police officer); see also State v. Mulkey, 98 Ohio App.3d 773,
649 N.E.2d 897 (10th Dist.1994) (street-gang attack on victim); State v. Davis, 8 Ohio
App.3d 205, 456 N.E.2d 1256 (8th Dist.1982) (excluded patron shot bar owner and
doorman).
{¶41} In this case, the question remains — was this a sudden eruption of events
where Harris acted with momentary deliberation? After considering Walker, the cases
cited above, the Taylor factors, and the evidence in the light most favorable to the
prosecution, we find that sufficient evidence was presented that Harris was the actual
shooter and that he acted purposefully and with prior calculation and design.
{¶42} After shooting at Parker and Martinez once to ward off the chase that began
a block over, Harris did not leave the scene. Instead, Harris made the calculated decision
to come after Parker and continue shooting. Martinez testified that he heard four gun
shots — the first one was the bullet that went whistling past his ear. He then saw Harris
standing next to a fire hydrant, shooting in Parker’s direction that hit Parker’s hand,
causing him to shout that he had been struck by the bullet. According to Martinez,
Parker ran behind the a tree for protection; however, Harris shot at Parker again, hitting
him in the arm area. Martinez testified that Harris kept “coming up” on Parker and then
shot him again in the chest.
{¶43} Martinez’s testimony is consistent with Dr. Felo’s testimony that Parker
suffered from three gunshot wounds — one to the hand, and two to the chest area.
According to Dr. Felo, the exit wound of one of the gunshots was consistent with Parker’s
back being up against something, like a tree. According to Dr. Felo, this gunshot wound,
which pierced Parker’s lung causing it to collapse, would not have been immediately fatal
and with medical attention, Parker could have survived. The second analyzed gunshot
wound was more severe. The bullet pierced through Parker’s lungs, heart, diaphragm,
and liver. The bullet was recovered from Parker’s body. According to Dr. Felo, this
gunshot wound was fatal, but Parker would have been able to walk a distance before
going into shock and collapsing.
{¶44} Applying the Taylor factors to this case, there was no testimony that Parker
knew Harris or any of the men he was with prior to the day of the murder. However, the
testimony revealed that a few of the witnesses, who also lived in the area, knew Harris as
the “CD man.” Therefore, it is possible that Parker also knew Harris as the “CD man”;
however, there was no evidence that Parker and Harris had a strained relationship before
the day of the murder. Nevertheless, the events of this particular day unfolded to where
any prior relationship or acquaintance status could have become strained due to Parker
continuing to follow, taunt, and ultimately chase Harris and his acquaintances. Each of
Parker’s friends testified that Parker led the charge to follow Harris’s group to “talk” to
them about what happened on the bus with Tyler. In fact, Tyler testified that Parker was
cussing at the group asking if they wanted to “fight.” During this time, Harris and his
friends retrieved a gun from a backpack that one of them was wearing, and Harris placed
the gun in his waistband. The jury could have reasonably inferred that the purpose
behind retrieving the gun was to use or brandish it, thus choosing the murder weapon.
Accordingly, it also could reasonably be inferred that if any relationship existed, it
became strained during the course of the altercation to the point that thought went into
retrieving a gun from a concealed location.
{¶45} Additionally, a reasonable juror could have concluded that the shooting was
not an instantaneous eruption of events. Parker’s group followed Harris’s group from at
least Osceola Avenue to East 123rd Street and ultimately to Phillips Avenue, where the
murder occurred. At some point, a gun was retrieved from a backpack, thus calculating
its potential use. When the shooting actually occurred, Harris fired the weapon
approximately four times, each time coming closer to Parker despite Parker’s attempt to
retreat or hide. Even after Parker was shot twice, Harris kept pursuing Parker and
shooting. A rational trier of fact could find based on the totality of the circumstances
surrounding the murder, that Harris acted with purpose and prior calculation and design
when he retrieved the gun from a concealed location, fired the gun repeatedly at Parker,
even though Parker had already been shot twice, and was retreating and attempting to
hide. Harris kept approaching Parker, firing the weapon, and only after Parker yelled out
“I’m hit” and collapsed on the ground did Harris stop shooting and leave the scene.
{¶46} Harris’s actions of pursuing Parker, even after Parker was shot twice and
seeking cover behind a tree, and then shooting him again, demonstrates Harris’s quickly
conceived plan to kill Parker. Accordingly, Harris’s second assignment of error is
overruled.
II. Manifest Weight of the Evidence
{¶47} Harris contends in his third assigned error that “[t]he manifest weight of the
evidence did not support a conviction for any offense, including those based on
accomplice liability, or for conviction as a principal offender.”
{¶48} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598 at ¶ 12. A reviewing court “weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines 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. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997) A conviction should
be reversed as against the manifest weight of the evidence only in the most “exceptional
case in which the evidence weighs heavily against the conviction.” Id.{¶49} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding the credibility of witnesses and
the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist.
Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and observe
their demeanor, gestures, and voice inflections, and use these observations in weighing
the credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistencies
and resolve them accordingly, “believ[ing] all, part, or none of a witness’s testimony.”
State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v.
Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶50} Harris raises a myriad of issues why his convictions are against the manifest
weight of the evidence. Specifically, he contends that a reasonable jury could not have
concluded, beyond a reasonable doubt, that he (1) was the shooter, (2) gave the shooter
the gun, (3) shared the animus of the shooter, (4) did not renounce his involvement
altogether, (5) acted with prior calculation and design, (6) was on the scene, or (7) was
not acting, either directly or vicariously, in self-defense.
{¶51} Harris contends that the jury’s finding that he was the shooter and that he
acted with prior calculation and design is against the manifest weight of the evidence.
We disagree. As previously discussed under the sufficiency analysis, a reasonable jury
could conclude that Harris was the shooter and acted with purpose and prior calculation
and design.
{¶52} The identification of Harris as the shooter came from the witnesses who
were in the best position to see who fired the weapon. The shooter was right outside
Collins’s home, and Collins remembered that the shooter was wearing gray jogging pants.
Martinez also described the shooter as wearing gray jogging pants. From the video,
Detective Lynch concluded that Martinez was in one of the best places to see who the
shooter was. Further, Detective Lynch stated that most of the other people who
attempted to identify what the shooter was wearing did not round the corner where the
shooter would have been visible. Although Marcus and Harry each testified that Harris
was not the shooter, it is within the jury’s discretion to give more weight to certain
testimony over other testimony. In this case, the jury, in its full discretion, gave more
weight to the testimony of Martinez, Collins, and Isaac.
{¶53} Additionally, the weight of the evidence supports that Harris acted with
purpose and prior calculation and design. During the chase, Harris retrieved the gun
from a concealed location and placed it in his waistband. After rounding the corner,
Harris turned and opened fire on Parker with each shot being taken at a closer range.
Harris continued shooting even after Parker was shot twice, yelled that he had been hit,
and retreated behind a tree. Based on the evidence, the jury could conclude that Parker’s
back was up against a tree when Harris approached one final time and shot him in the
chest. Based on the facts and evidence, we cannot say that the jury lost its way in finding
Harris guilty of aggravated murder.
{¶54} If the jury did not believe that Harris was the shooter, but rather an
accomplice to the murder, evidence was presented that Harris gave the shooter the gun.
The act of providing the murder weapon to the shooter evidences that Harris acted with
the same animus as the shooter. See State v. Davis, 5th Dist. Richland No. CA-2133,
1983 Ohio App. LEXIS 5767 (1983).
{¶55} Harris next contends that his convictions are against the manifest weight of
the evidence because no jury could reasonably believe that he was actually present at the
time of the murder. The basis for this argument seems to be that the police supplied the
witnesses with the description and identity of the shooter. There is nothing in the record
or evidence to support Harris’s accusation. Alternatively, he argues that if he was on the
scene, his act of running away amounted to renunciation, and the jury lost its way in
finding him guilty under a complicity theory. The evidence suggested that Harris either
shot Parker or provided the shooter with the gun. Despite Harris’s argument that he ran
away, constituting renunciation, the case law is clear that a person who provides a firearm
to the shooter can be guilty under an aiding and abetting theory. See, e.g., Davis.
{¶56} We also find unpersuasive that Harris’s convictions are against the manifest
weight of the evidence because the jury could have reasonably believed that Harris was
acting in self-defense. Harris did not argue self-defense, and the jury was not instructed
on self-defense. This argument is without merit.
{¶57} Accordingly, this is not the exceptional case where the jury clearly lost its
way in finding Harris guilty of aggravated murder, murder, felonious assault, or
discharging a firearm over a public road. Harris’s third assignment of error is overruled.
III. Jury Instruction
{¶58} In State v. Herring, 94 Ohio St.3d 246, 251, 762 N.E.2d 940 (2002), the
Ohio Supreme Court reiterated, that R.C. 2923.03(F) states: “A charge of complicity
may be stated in terms of this section, or in terms of the principal offense.” Thus, a
defendant charged with an offense may be convicted of that offense upon proof that he
was complicit in its commission, even though the indictment is “stated in terms of the
principal offense” and does not mention complicity. R.C. 2923.03(F) adequately notifies
defendants that the jury may be instructed on complicity, even when the charge is drawn
in terms of the principal offense. See State v. Keenan, 81 Ohio St.3d 133, 151, 689
N.E.2d 929 (1998), citing Hill v. Perini, 788 F.2d 406, 407-408 (6th Cir.1986).
{¶59} An accomplice to the commission of a criminal offense is subject to the
same prosecution and punishment as the principal offender, and may be charged in the
language of the principal offense. R.C. 2923.03(F). Therefore, one charged with
violating a provision of the Ohio Criminal Code is arguably put on fair notice that the
state may proceed against him at trial as either an accomplice or principal, and thus
should prepare his defense to respond to either theory of culpability.
{¶60} In his first assignment of error, Harris contends that he was deprived of his
right to due process under federal and state law amounting to plain error when the jury
was not properly instructed on accomplice liability, thereby affecting the entirety of trial.
{¶61} Harris failed to object to the manner in which the court gave the jury
instructions; therefore, plain error must be found to reverse his convictions and for a new
trial to be ordered. Crim.R. 30(A). In order to prevail under a plain error analysis, the
appellant bears the burden of demonstrating that the outcome of the trial clearly would
have been different but for the error. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d
804 (1978). Notice of plain error “is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at
paragraph three of the syllabus; Crim.R. 52(B). An erroneous jury instruction does not
rise to the level of plain error unless it is clear that absent the error, the jury’s verdict
would have been different. State v. Williams, 8th Dist. Cuyahoga No. 94616,
2011-Ohio-925, ¶ 36, citing Long.
{¶62} In this case, the trial court gave the jury the following written instruction on
accomplice liability:
Aid and abet.
A person may be an accomplice in an offense and prosecuted as the
principal offender if he aids or abets another in committing the offense
while acting with the kind of culpability required for the commission of the
offense.
A person acting with the kind of culpability required for the commission of
a principal offense, who aids or abets another person in the commission of
that offense, is an accomplice.
Aided. “Aid” means to help, assist or strengthen.
Abetted. “Abet” means to encourage, counsel, incite, or assist.
The State may demonstrate that an accused is guilty of aiding and abetting
by direct or circumstantial evidence.
Participation in criminal intent may be inferred from presence,
companionship, and conduct before and after the offense is committed.
An accomplice must perform some act to facilitate the commission of the
principal offense. Any encouragement, assistance, counseling, or
command is sufficient.
A person’s mere association with a principal offender is not enough to
sustain a conviction based upon aiding and abetting. There must be some
level of active participation by way of providing assistance or
encouragement. Mere approval or acquiescence, without expressed
concurrence or the doing of something to contribute to an unlawful act, is
not aiding and abetting of the act.
See also tr. 710-711.
{¶63} Subsequently, the trial court instructed the jury regarding aggravated murder
as follows, in relevant part,
The defendant, Byron Harris, Jr., is charged in Count 1 of the indictment
with aggravated murder, in violation of Revised Code Section 2903.01(A).
Before you can find the defendant guilty of aggravated murder, you must
find beyond a reasonable doubt that on or about the 17th day of August,
2014, and in Cuyahoga County, Ohio, the defendant did purposely, and with
prior calculation and design, cause the death of James Parker, Jr.
Purposely. Purpose to cause the death is an essential element of the crime
of aggravated murder. A person acts purposely when it is his specific
intention to cause a certain result. It must be established in this case at the
time in question there was present in the mind of the defendant a specific
intention to purposely cause the death of James Parker, Jr.
Purpose is a decision of the mind to do an act with a conscious objective of
producing a specific result. To do an act purposely is to do it intentionally
and not accidentally. Purpose and intent mean the same thing. The purpose
with which a person does an act is known only to himself unless he
expresses it to others or indicates it by his conduct.
How determined. The purpose with which a person does an act or brings
about a result is determined from the manner in which it is done, the means
or weapon used, and all the other facts and circumstances in evidence.
Inference. Use of deadly weapon. You may infer a purpose to cause the
death of another where the natural or probable consequences of the
defendant’s act is to produce death in light of all the surrounding
circumstances. Such circumstances include the weapon used and its
capability to destroy life.
If you find that the defendant used a deadly weapon against another in a
manner calculated to destroy life, the purpose to cause death may be, but is
not required to be, inferred from the use of the weapon. Whether an
inference is made rests entirely with you.
Tr. 713-714.
{¶64} Harris contends that the aiding and abetting instruction did not match the
Ohio Jury Instructions (“OJI”), did not require the jury to find that he shared the same
mens rea as the principal offender, and based on other errors, lowered the state’s burden
of proof for all convictions.
{¶65} Contrary to Harris’s initial argument, a trial court is not required to provide
the jury with a verbatim recitation of a requested jury instruction, such as any instruction
contained within the OJI. State v. Kent, 8th Dist. Cuyahoga No. 90795, 2010-Ohio-1851,
¶ 9, citing State v. Scott, 26 Ohio St.3d 92, 497 N.E.2d 55 (1986). The trial court’s jury
instruction need only communicate to the jury the legal principles and law pertinent to the
case. Kent at id., citing State v. Sneed, 63 Ohio St.3d 3, 584 N.E.2d 1160 (1992).
Therefore, not matching the OJI instruction does not constitute reversible, let alone, plain
error.
{¶66} A review of the court’s jury instructions reveal that the court mirrored the
language of the complicity statute, R.C. 2923.03, when it instructed the jury on aiding and
abetting by using the words “kind of culpability,” which are found in the statute.
Therefore, while the court did not expressly use the words that Harris needed to have the
same “criminal intent” as the principal, the instruction as a whole allowed a reasonable
juror to concluded that under an accomplice theory, the “kind of culpability” was
“purposely, and with prior calculation and design.” See State v. Jalowiec, 91 Ohio St.3d
220, 231, 744 N.E.2d 163 (2001) (single instruction may not be judged in artificial
isolation, but must be viewed in the context of the overall charge).
{¶67} In support of his argument that the court’s jury instruction lowered the
state’s burden of proof, Harris cites Clark v. Jugo, 676 F.2d 1099 (6th Cir.1982). In
Clark, the trial court instructed the jury that
[p]urpose to cause the death of another is an essential element of the crime
of aggravated murder. A person acts purposely when it is his specific
intention to cause a certain result. It must be established in this case that at
the time in question there was present in the mind of the Defendant and/or
his accomplice a specific intention to cause the death of [the victim].
Id. at 1101.
{¶68} The Clark court found that the inclusion of this “and/or” language could
reasonably have been interpreted by a reasonable juror that the state was relieved of its
burden to prove that the defendant had a purpose to kill the victim because the jury was
instructed that the essential element of purpose to kill could be found in the mind of the
defendant “and/or” his accomplice. Id. at 1104. The court concluded that “the charge
could easily have been interpreted to mean that Clark, personally, did not have to have
purpose to kill, and that Jones’ purpose was sufficient to convict Clark, even if not shared
by Clark.” Id. at 1105. The court held that “where purpose to kill is an essential
element of the crime of aggravated murder, a jury instruction permitting that element of
culpability to be found in either the defendant or his accomplice is violative of the
principles of Due Process under the Fourteenth Amendment.” Id. at 1106.
{¶69} In this case, the trial court instructed the jury that “[a] person may be an
accomplice in an offense and prosecuted as the principal offender if he aids or abets
another in committing the offense while acting with the kind of culpability required for
the commission of the offense.” See also tr. 710. The trial court again instructed the
jury that “[a] person acting with the kind of culpability required for the commission of a
principal offense who aids or abets another person in the commission of that offense is an
accomplice.” Tr. at id.
{¶70} When the court defined the principal offense, the trial court properly
instructed the jury on the mens rea required to convict on each of the charges.
Accordingly, Clark is clearly distinguishable, and the jury in this case was properly
instructed on culpability when the accomplice instruction was given. Moreover, the jury
could have believed that the Harris was the actual shooter; thus, making any deviation on
the complicity instruction harmless.
{¶71} Accordingly, Harris’s first assignment of error is overruled.
IV. Effective Assistance of Counsel
{¶72} Harris raises in his fourth assignment of error that his defense counsel
provided constitutionally ineffective assistance at “trial by failing to properly define
‘accomplice liability,’ provide the affirmative defense for the jury contained therein, or
object to the state’s inflammatory remarks on closing.”
{¶73} To establish ineffective assistance of counsel, a defendant must demonstrate
(1) that counsel’s performance fell below an objective standard of reasonable
representation, and (2) that he was prejudiced by that performance. Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice
is established when the defendant demonstrates “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland at 694.
{¶74} The failure to prove either prong of the Strickland two-part test makes it
unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d
378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court
need not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
* * * that course should be followed.” Strickland at id.{¶75} Harris first contends that his counsel was ineffective for allowing an
erroneous jury instruction on accomplice liability. Having previously concluded that the
accomplice instruction given by the court properly instructed the jury on the requisite
culpability, counsel was not ineffective for failing to challenge or object to the
accomplice liability jury instruction.
{¶76} Harris also contends his counsel was ineffective for failing to request an
instruction on the affirmative defense of renunciation. An affirmative defense to
complicity occurs when prior to the commission of the offense, the actor ends his
complicity by manifesting a complete and voluntary renunciation of his criminal purpose.
R.C. 2923.03(E). To prove termination, Harris would have to show that he manifested a
complete and voluntary renunciation of his criminal purpose.
{¶77} Harris supports his argument with the evidence that suggested that he ran
from the scene before the shooting occurred. He contends that this flight constituted
renunciation of whatever intent or purpose the shooter had. While there was evidence
suggesting Harris fled the scene, the jury also heard evidence suggesting that Harris was
the actual shooter. Reconciling the competing or conflicting evidence was for the jury.
{¶78} Furthermore, the evidence did not support an instruction on renunciation.
The state primarily argued that Harris was the shooter, and thus the principal offender.
However, if the jury did not believe that Harris was the shooter, evidence was presented
that Harris handed the firearm to the shooter prior to the shooting, thus demonstrating that
he was an accomplice to the shooting. Evidence that an accomplice flees from a crime
scene after supplying the principal offender with the murder weapon is insufficient to
warrant an instruction on renunciation. Davis, 5th Dist. Richland No. CA-2133, 1983
Ohio App. LEXIS 5767 (renunciation must be complete and voluntary; not flight to avoid
apprehension for a crime already committed). Accordingly, counsel was not ineffective
when he did not request a renunciation instruction.
{¶79} As will be discussed in addressing Harris’s fifth assignment of error,
counsel was not ineffective for failing to object to the prosecutor’s comments during
closing argument because the prosecutor’s comments did not constitute misconduct.
{¶80} Having found no deficient performance by counsel, Harris’s fourth
assignment of error is overruled.
V. Prosecutorial Misconduct
{¶81} In his fifth assignment of error, Harris contends that the prosecutor
committed prosecutorial misconduct by comparing his personal experiences to the
evidence at trial during closing arguments.
{¶82} Closing arguments must be viewed in their entirety to determine whether the
disputed remarks were prejudicial. State v. Mann, 93 Ohio App.3d 301, 312, 638 N.E.2d
585 (8th Dist.1993). An appellant is entitled to a new trial only when a prosecutor asks
improper questions or makes improper remarks and those questions or remarks
substantially prejudiced appellant. State v. Pate, 8th Dist. Cuyahoga No. 95382,
2011-Ohio-1692, ¶ 19, citing State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984).
{¶83} We note at the outset that defense counsel did not object to these statements
and, in turn, has waived the issue on appeal except for plain error. Pate, citing State v.
Owens, 51 Ohio App.2d 132, 146, 366 N.E.2d 1367 (9th Dist.1975). As previously
discussed, notice of plain error is to be taken with the utmost caution, to prevent a
manifest miscarriage of justice, and should be found when, but for the error, the outcome
of the trial would have been different. Long, 53 Ohio St.2d 91, 372 N.E.2d 804.
{¶84} In general, a prosecutor has considerable latitude in his closing argument.
State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). “The state is largely free to
comment on “what the evidence has shown and what reasonable inferences may be drawn
therefrom.” State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). The test for
prosecutorial misconduct during closing argument is whether the remarks made by the
prosecutor were improper and, if so, whether they prejudicially affected a substantial right
of the accused. State v. White, 82 Ohio St.3d 16, 22, 693 N.E.2d 772 (1998). For this
determination, an appellate court should consider the nature of the remarks, whether an
objection was made by counsel, whether corrective instructions were given by the court,
and the strength of the evidence against the defendant. State v. Braxton, 102 Ohio
App.3d 28, 41, 656 N.E.2d 970 (8th Dist.1995). Additionally, “isolated comments by a
prosecutor are not to be taken out of context and given their most damaging meaning.”
State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, citing Donnelly
v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).
{¶85} In this case, the complained-of, isolated comments made by the prosecutor
during closing arguments were made in rebuttal after defense counsel argued that the
state’s witnesses provided inconsistent and conflicting testimony. The prosecutor merely
commented on the defense’s assertion that the state was hiding from the inconsistencies.
Furthermore, immediately after discussing the existence of inconsistencies in the
testimonies, the prosecutor reminded the jury that “[y]our job is to sift through it. Look
at the consistencies. Look at the opportunities for consistencies, like the people who are
consistent about actions, to see the actions. Look at the inconsistencies. Look at the
video — where these come from.” (Tr. 701.)
{¶86} Moreover, upon a review of the entire closing argument by the state and the
defense, we find that defense counsel also interjected his opinions on what he believed
the evidence showed or did not show. Even after the state objected and a side-bar was
held, defense counsel continued with his beliefs. Therefore, if the state commented on
what it believed the evidence showed, it was only in response to what defense counsel
repeatedly stated. Accordingly, it could be argued that any error Harris now argues about
on appeal could be deemed invited error.
{¶87} Nevertheless, we find that the prosecutor’s isolated comment was not
prejudicial and did not amount to plain error. Furthermore, the trial court, immediately
after the state ended its closing argument, instructed the jury that closing arguments are
not evidence. It is presumed that the jury followed this instruction.
{¶88} Accordingly, the prosecutor did not engage in misconduct during his closing
argument because the remarks did not rise to the level of misconduct that would
substantively deprive Harris of a fair trial. Having found that the prosecutor’s comments
did not constitute misconduct, Harris’s defense counsel was, therefore, not ineffective for
failing to object to them. The fifth assignment of error is overruled.
{¶89} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR