State v. Austin , 2019 Ohio 1185 ( 2019 )

[Cite as State v. Austin, 2019-Ohio-1185.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
MICHAEL L. AUSTIN, JR.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 16 MA 0068
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 13 CR 380A
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed
Atty. Paul Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant
Prosecutor, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503-1426, for
Plaintiff-Appellee and
Atty. Timothy Young, Ohio Public Defender, and Atty. Stephen P. Hardwick, Assistant
Public Defender, The Midland Building, 250 East Broad Street, Suite 1400, Columbus,
Ohio 43215, for Defendant-Appellant.
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Dated: March 29, 2019
D’APOLITO, J.
{¶1} Appellant Michael Austin Jr. appeals his convictions and sentence
following a jury trial in the Mahoning County Court of Common Pleas for three counts of
aggravated murder, in violation of R.C. 2903.01(A), an unclassified felony, with a
firearms specification for each count, in violation of R.C. 2941.145(A) (counts one, four,
and ten); one count of murder, in violation of R.C. 2903.02, an unclassified felony, with
a firearms specification, in violation of R.C. 2941.145(A)(a lesser included offense of the
charged crime of aggravated murder)(count eleven); and one count of engaging in a
pattern of corrupt activity, in violation of R.C. 2923.32(A)(1)(B), with an enhancement
based upon a prior felony conviction, a felony of the first degree (count twenty-nine).
{¶2} Appellant was sentenced to life without parole for each of the three
aggravated murder convictions, plus three years for each of the corresponding firearms
specifications; fifteen years to life for the murder conviction, plus three years for the
corresponding firearms specification; and eleven years for the pattern of corrupt activity
conviction. Each of the sentences for the substantive convictions was imposed to run
consecutively to the others. (11/27/17 J.E.)
{¶3} Appellant argues that the trial court abused its discretion in admitting
specific testimonial evidence at trial. He also challenges the constitutionality of his non-
reviewable sentences for aggravated murder and murder, and the lawfulness of the
imposition of sentences consecutive to a sentence of life without parole. For the
following reasons, Appellant’s assignments of error are overruled and his convictions
and sentence are affirmed.
THE INDICTMENTS
{¶4} On April 11, 2013, Appellant, his brother Hakeem Henderson (“Hakeem”),
and Dewaylyn Colvin were indicted for two counts of aggravated murder with firearms
specifications for the shooting deaths of A.C. and R.H, which occurred days apart in
November of 2011. The indictment further charged Appellant with the attempted
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murder and felonious assault of D.J. with firearms specifications, for which he was
acquitted, and three counts of having a weapon under disability, which were dismissed
without objection by the state at a hearing on November 16, 2017.
{¶5} A superseding indictment, filed on May 16, 2013, added aggravated
murder charges with firearms specifications against Appellant and Colvin for the
shooting deaths of R.S. and K.M., which occurred in September of 2012. The
superseding indictment also added a fourth weapon while under disability charge
against Appellant, which was dismissed without objection by the state at the November
16th hearing.
{¶6} A second superseding indictment, filed on May 21, 2015 (captioned
“superseding indictment”), added murder and drug charges against Hakeem, as well as
various criminal charges, including aggravated murder, attempted murder, and
aggravated arson, against three new defendants, Vincent Moorer, Melvin Johnson Jr.,
and Nahdia Baker. Relevant to the above-captioned appeal, the final count charged all
of the defendants, including Appellant, with engaging in a pattern of corrupt activity.
The trials of Colvin, Moorer and Johnson Jr., and Baker were ultimately severed, and
Appellant and Hakeem were jointly tried.
FACTS
{¶7} The jury trial began on April 25, 2016. Testimony offered by the state
established the framework of a drug distribution network run by Colvin and Moorer. The
members of the organization were divided in two groups based on their allegiance to
either Colvin or Moorer. Colvin and Moorer kept the two factions separate for fear that
subordinate members of the organization would collaborate and overtake the business.
As a consequence, the two groups functioned separately from each other but as equal
parts of the drug distribution network. Drug crimes committed by the organization were
the subject of a series of indictments from 2011 to 2015, which resulted in the pleas and
convictions of several of its members, including Colvin and two individuals who testified
at Appellant’s trial.
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{¶8} M.P., who pled to and was convicted of drug charges in 2015
approximated the organization’s monthly revenue to be a “couple hundred thousands.”
(Tr. 1297). Witnesses characterized Appellant, Hakeem, Johnson Jr., and R.H. as
enforcers, hitters, or shooters for the organization.
{¶9} The following evidence was offered by the state to establish Appellant’s
role in the shooting deaths of A.C. and R.H. S.M., a resident of Victory Estates, a
housing project on the east side of Youngstown, Ohio testified that she, her cousin B.A.,
and A.C. were present at her apartment on Woodcrest Avenue on November 12, 2011.
S.M. conceded that she and A.C. were “high as f*ck” as a result of copious illegal drug
use that evening, and that they were engaged in a clandestine romance.
{¶10} R.H., who is also S.M.’s cousin, called her multiple times to ask who was
present at her apartment that evening, but she did not divulge that A.C. was there.
When R.H. arrived, uninvited and unannounced, he and S.M. bickered for a short time.
R.H. and A.C. then began “fumbling” with R.H.’s gun in the kitchen until A.C. cleared a
jam. Around that time, A.C., who was drug sick, became physically ill and exited the
apartment through the back door to vomit in the yard.
{¶11} According to S.M.’s testimony, roughly five minutes after A.C. left the
apartment, S.M. heard gunshots. She testified that, ten to twenty minutes later, after
she recovered from the initial shock and overcame her fear, she went to the back door.
R.H. prevented her from exiting the apartment because he feared for her safety. From
the rear window, S.M. saw A.C. lying on the ground between the patio and the sidewalk.
He was holding his chest. S.M. turned from the back door and called 9-1-1, then
handed the phone to B.A. to provide the relevant information to emergency services.
{¶12} When S.M. returned to the back door, R.H. had released the door handle
and was in a neighboring yard. S.M. approached A.C., who was bleeding from bullet
wounds to his face, elbow, and shoulder. S.M. asked A.C., “please tell me my cousin
didn’t do this.” (Tr. 579). According to her testimony, A.C. “[shook] his head no.” (Tr.
580.) S.M. specifically asked A.C. who shot him, and he answered, “Mike.” Because
A.C.’s mouth was filled with blood and he was struggling to breathe, S.M. told him to
wait until the police arrived to describe the attack.
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{¶13} S.M. went back into the apartment to confirm that the police were en
route. When she returned to A.C., R.H. was gone, but a group of onlookers had
gathered at the crime scene.
{¶14} When S.M. was questioned by police that evening, she omitted A.C.’s
identification of “Mike” as the gunman from her statement. S.M. first mentioned the
identification to law enforcement in a videotaped interview that was conducted a few
months before the trial. However, W.B., a bystander at the scene, identified S.M. as the
individual that could be heard in the background of the 9-1-1 recording yelling that
Appellant was the gunman.
{¶15} W.B. further testified that she noticed Appellant at the housing project
earlier that same day with two others. All three were wearing black clothing and
hoodies on a warm day. Later that evening, W.B. saw Appellant and another person
lurking around S.M.’s apartment. W.B. believed Appellant was armed due to a bulge in
his jacket.
{¶16} Just prior to the shooting, C.B., A.C.’s aunt, called 9-1-1 because she saw
two young men wearing black clothing with hoods walking through Victory Estates with
guns. After a police car circled the housing project and departed, C.B. called 9-1-1 a
second time to report that she saw the men again, one walking up the back of
Woodcrest Avenue and the other walking up the front. Then she heard gunshots.
{¶17} A.C. died before the police arrived. Four bullets were recovered from his
body. A few days later, R.H.’s body was found at an intersection on the east side of
Youngstown. He had been shot 18 times.
{¶18} R.E., an inmate at Northeast Ohio Correctional Center, testified that
Appellant began confiding in him because of R.E.’s paralegal background, when they
were both housed at the county jail. R.E. testified that Appellant admitted to fatally
shooting A.C., explaining that R.H. lured A.C. out of the apartment and Hakeem drove
the getaway car. Appellant further admitted that he killed R.H. because R.H. was
disclosing information about the A.C. murder. Appellant said that Hakeem drove the
car, with Colvin in the front seat, and Appellant in the backseat next to R.H. Appellant
told R.E. that he fatally shot R.H. then kicked his body from the vehicle.
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{¶19} During the trial, A.H., a key state’s witness and a member of the
organization, refused to appear due to fear of reprisal by the defendants. A.H. had
entered a plea and was convicted in the 2011 drug indictment; however, his plea
agreement did not contain a provision regarding cooperation with the state.
{¶20} A hearing was conducted to determine whether A.H.’s statements could
be used at trial under the forfeiture by wrongdoing exception to the prohibition on
hearsay. The trial court overruled objections by the defense, allowing the admission of
A.H.’s February 26, 2013 videotaped statement to the police, and the testimony of a
detective regarding his transcribed follow-up interview with A.H. on February 4, 2015.
{¶21} In his recorded statement, A.H. explained that he was at his residence
with his brother, J.M., on the night that A.C. was fatally shot. J.M. was the victim of the
attempted murder and felonious assault convictions of Moorer and Johnson Jr. in a
separate trial. Appellant, Colvin, Hakeem, and R.H. stopped at the A.H.’s residence
that evening to ask A.H. and J.M. for masks.
{¶22} Appellant and R.H. explained that they were going to Victory Estates to
“take care of . . . whatever [member of A.C.’s family] they could find”, as the word on the
street was that a member of A.C.’s family was planning to rob Colvin. During his
transcribed follow-up interview, A.H. stated that Colvin articulated the plan, and
Appellant, Hakeem, and R.H. expressed agreement with its execution. The four men
left in an automobile with Hakeem behind the wheel. A.H. testified that they were
dressed in black, with the exception of Hakeem, who wore a black shirt and blue jeans.
{¶23} Appellant, Colvin, and Hakeem returned to A.H.’s residence an hour or
two later without R.H. Appellant announced that he had shot a member of A.C.’s family,
but did not know which one, because they looked alike. They told A.H. that there had
been a $10,000 price set for the hit, so they went over and “served [the] dudes” and “put
some work in.” (DVD Tr. 24-25; Tr. 1128). Because J.M.’s girlfriend, S.J. was staying
with his mother, A.H. and J.M. took Appellant and Hakeem to S.J.’s apartment in
Boardman, Ohio to evade law enforcement.
{¶24} A.H. further explained that Colvin, Appellant, and Hakeem planned R.H.’s
murder because he was divulging information about the A.C. murder. On the day R.H.
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was murdered, A.H. saw R.H. in a vehicle, which was being driven by Hakeem, with
Colvin and Appellant.
{¶25} According to A.H.’s statement, Appellant, while under the influence of
MDMA, described to A.H. the circumstances surrounding both murders. R.H. entered
the apartment in order to lure A.C. into the back yard, and Appellant shot A.C. while he
was vomiting. Appellant was troubled by the expression on A.C.’s face after he had
been shot. According to Appellant, during the automobile trip that would end in R.H.’s
murder, R.H. kept telling Appellant that he loved him, as if R.H. knew that he was going
to be killed. Appellant also expressed anger that he was never compensated for the
A.C. murder.
{¶26} Appellant’s role in the R.S. and K.M. murders was established at trial by
the testimony of F.P., a member of the organization who testified pursuant to a plea
agreement in a drug indictment, which required cooperation with the state. F.P. testified
that he had known Colvin for a number of years because F.P. had sold drugs for the
organization. F.P. also knew Appellant and identified him in the courtroom. F.P.
testified that Colvin referred to Appellant as “Nephew.” F.P. learned of the R.S. and
K.M. murders while he was in the county jail in 2012.
{¶27} After F.P. was released, Colvin offered him the opportunity to resume
selling drugs. At that time, Colvin told F.P. about the R.S. and K.M. murders. F.P.
testified that Colvin’s goal in admitting to the murders was to “put fear in [F.P.]. * * * to
put fear in people.” (Tr. 1198.)
{¶28} Colvin stated that "Nephew" murdered R.S. and K.M. Colvin explained
that R.S. was murdered because he disrespected Moorer’s girlfriend, T.E. when he
assaulted her at a bar. Colvin conceded that K.M., who was in R.S.’s car when he was
ambushed, was an innocent bystander. Appellant also admitted to F.P. that he killed
R.S. and K.M.
{¶29} F.P.’s testimony regarding the R.S. and K.M. murders was corroborated
by M.P. M.P. testified that Appellant and Moorer discussed the R.S. and K.M. murders
with M.P. at T.E.’s house. According to M.P., R.S. and K.M. were murdered because
R.S. had assaulted T.E. at a bar and “the team gonna look bad if they didn't [retaliate].”
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(Tr. 1306.) Moorer said “[t]hey put Mike on it,” and Appellant added that “he had to put
[R.S.] down.” (Tr. 1306-1307.)
{¶30} M.P. further testified that Appellant and Hakeem complained that they
never received payment for the murders. Appellant said they were supposed to “come
in, pull [their] moves and get paid and go back and leave town.” (Tr. 1301-1311).
{¶31} Joseph Ohr, M.D., Mahoning County Forensic Pathologist and Deputy
Coroner, performed autopsies on A.C., R.H., R.S., and K.M. Dr. Ohr testified that A.C.
would have died within two to three minutes of sustaining the gunshot wound that
entered his chest then severed his carotid artery and jugular vein. R.H. suffered 31
separate entrance and exit wounds. Dr. Ohr testified that R.S. was shot six times and
sustained nine bullet wounds. K.M. sustained three gunshot wounds and died as a
result of gunshot wounds to her head.
ANALYSIS
{¶32} In this appeal, Appellant advances seven assignments of error:
ASSIGNMENT OF ERROR NO. 1:
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO PLAY
OVER OBJECTION AN UNSWORN VIDEO INTERVIEW WITH [A.H.].
T.P. 874-1016, 1116-32; STATE’S EXHIBITS 377 AND 378; SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
{¶33} There is no dispute A.H.’s statements to the police were testimonial. If a
hearsay statement being considered for admission is testimonial, it is subject to the
confrontation clause. Crawford v. Washington, 541 U.S. 36, 61-62, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004). However, the Constitution does not guarantee an accused person
against the legitimate consequences of his own wrongful acts. Reynolds v. United
States, 98 U.S. 145, 159, 25 L. Ed. 244 (1879). The rule of forfeiture by wrongdoing
extinguishes confrontation claims on equitable grounds. Crawford, 541 U.S. 36, at 62.
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{¶34} Accordingly, even when the right to confrontation applies, testimonial
hearsay can be admitted under the common law forfeiture by wrongdoing exception.
State v. Fry, 125 Ohio St. 3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 108, citing Giles
v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008). The doctrine is
applicable when the defendant has engaged in intentional conduct designed to prevent
the witness from testifying. Id. Defendants forfeit the right to confrontation when they
seek to undermine the judicial process by procuring or coercing silence from witnesses.
Davis v. Washington, 547 U.S. 813, 833, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
{¶35} Pursuant to Evid.R. 804(B)(6), the forfeiture by wrongdoing hearsay
exception permits the admission of “[a] statement offered against a party if the
unavailability of the witness is due to the wrongdoing of the party for the purpose of
preventing the witness from attending or testifying.” The wrongdoing need not consist
of a criminal act. 2001 Staff Note to Evid.R. 804(B)(6) (“Encouraging a witness to leave
the state is wrongdoing in this context because no person has the legal right to refuse to
provide testimony in the absence of a privilege or other rule of evidence.”), see also
Giles, 554 U.S. at 374 (the common law forfeiture rule had a purpose of “removing the
otherwise powerful incentive for defendants to intimidate, bribe, and kill the witnesses
against them” and coincided with the court’s power to protect the integrity of its
proceedings).
{¶36} In applying the forfeiture by wrongdoing exception, the state must
demonstrate by a preponderance of the evidence that the defendant’s wrongdoing
resulted in the witness’s unavailability, and at least one purpose was to cause the
witness to be unavailable at trial. State v. Hand, 107 Ohio St. 3d 378, 2006-Ohio-18,
840 N.E.2d 151, ¶ 84, 87, 90. The state need only show the defendant’s wrongdoing,
which caused the witness’s unavailability, was motivated in part by a desire to silence
the witness. Id. at ¶ 84, 90 (a defendant can have various purposes, and the state need
not show the defendant's sole motivation was to eliminate the victim as a potential
witness). In making the admissibility decision, a court is not bound by the rules of
evidence. Evid.R. 104(A). Although evidentiary decisions on hearsay are typically
reviewed for an abuse of discretion, we review de novo evidentiary rulings that implicate
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the Confrontation Clause. State v. McKelton, 148 Ohio St. 3d 261, 2016-Ohio-5735, 70
N.E.3d 508 (2016), ¶ 97.
{¶37} During the admissibility hearing, testimony was provided by A.H.’s parole
officer, one of the prosecutors assigned to the case, and three police officers. Texts
from A.H. to another prosecutor, who was present at the last meeting with the witness,
were also offered. The trial court was asked to take judicial notice of issues with other
witnesses who had been threatened, as well as the trial court’s decisions to authorize
the filing of “counsel only” pleadings and to seal various parts of the record prior to trial.
The trial court concluded A.H. was unavailable because the defendants or their
functionaries engaged in wrongdoing that resulted in A.H.’s unavailability. The trial
court further found that the defendants’ purpose was to cause A.H. to be unavailable for
trial.
{¶38} Appellant argues that the forfeiture by wrongdoing exception applies solely
when the defendant intended to and did prevent the witness from testifying. He argues
that the state failed to prove by a preponderance of the evidence that he engaged in the
threats that caused A.H.’s unavailability, or that he acted with the purpose to cause this
unavailability.
{¶39} We previously rejected the identical argument raised by Hakeem in State
v. Henderson, 7th Dist. No. 16 MA 0057, 2018-Ohio-5124. We first observed that
circumstantial evidence possesses the same probative value as direct evidence, State
v. Treesh, 90 Ohio St. 3d 460, 485, 739 N.E.2d 749 (2001), and rational inferences are
permissible and evaluated in the state’s favor in ascertaining the sufficiency of the
evidence. See, e.g., State v. Filiaggi, 86 Ohio St. 3d 230, 247, 714 N.E.2d 867 (1999).
Considering the evidence presented by the state at the admissibility hearing, combined
with the rational inferences taken in the state’s favor, we opined that there was sufficient
evidence that Hakeem participated in procuring A.H.’s absence, with the intent to do so,
and that the preponderance of evidence supported the decision of the trial court.
Henderson , supra, ¶ 32; see also State v. Henderson, 7th Dist. No. 16 MA 0057, 2019-
Ohio-130 (denying motion for reconsideration based on forfeiture by wrongdoing).
{¶40} Appellant’s counsel conceded at oral argument that there are no facts in
the record that distinguish Henderson’s confrontation clause claim from the one
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asserted here. Because we rejected the identical argument based on the identical
evidence in our prior decision, we find that Appellant has failed to demonstrate any error
and his first assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 2:
THE TRIAL COURT ERRED BY PERMITTING [S.M.] TO TESTIFY THAT
[A.C.], IN RESPONSE TO HER LEADING QUESTIONS, SAID THAT
THE PERSON WHO SHOT HIM WAS "MIKE." EVID.R. 803(2); T.P. 580,
590, 772-3, 1142.
{¶41} Hearsay is generally not admissible. Evid.R. 802. Because A.C.’s
identification of “Mike” as the gunman was an out-of-court statement offered to prove its
truth, the trial court admitted the statement pursuant to the “excited utterance” exception
to the general rule against hearsay.
{¶42} Evid.R. 803(2), captioned “Excited Utterance,” reads, in its entirety, “A
statement relating to a startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition.” A four-part test is applied to
determine the admissibility of a statement as an excited utterance:
(a) that there was some occurrence startling enough to produce a nervous
excitement in the declarant, which was sufficient to still his reflective
faculties and thereby make his statements and declarations the
unreflective and sincere expression of his actual impressions and beliefs,
and thus render his statement of declaration spontaneous and
unreflective,
(b) that the statement or declaration, even if not strictly contemporaneous
with its exciting cause, was made before there had been time for such
nervous excitement to lose a domination over his reflective faculties so
that such domination continued to remain sufficient to make his
statements and declarations the unreflective and sincere expression of his
actual impressions and beliefs,
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(c) that the statement or declaration related to such startling occurrence or
the circumstances of such starling occurrence, and
(d) that the declarant had an opportunity to observe personally the matters
asserted in his statement or declaration.
State v. Jones, 135 Ohio St. 3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 166, quoting
Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955), paragraph two of the
syllabus.
{¶43} The fact that a statement is made in response to a question does not
preclude it from being characterized as an excited utterance. State v. Collins, 7th Dist.
No. 10 CO 10, 2011-Ohio-6365, ¶ 78, citing State v. Wallace, 37 Ohio St. 3d 87, 524
N.E.2d 466 (1988). The admission of a declaration as an excited utterance is not
precluded by questioning that: (1) is neither coercive nor leading, (2) facilitates the
declarant’s expression of what is already the natural focus of the declarant’s thoughts,
and (3) does not destroy the domination of the nervous excitement over the declarant’s
reflective faculties. Id., citing Wallace at 93.
{¶44} Appellant argues that A.C.’s statement was influenced by his desire to
spare his lover’s feelings regarding her cousin’s involvement in the shooting. Appellant
further asserts the lack of trustworthiness of out-of-court statements at the heart of the
hearsay prohibition is of particular concern here, because S.M. withheld A.C.’s
identification of “Mike” as his assailant from law enforcement for over four years. (Tr.
590).
{¶45} “The trial court has broad discretion to determine whether a declaration
should be admissible as a hearsay exception.” State v. Dever, 64 Ohio St. 3d 401, 410,
1992-Ohio-41, 596 N.E.2d 436. An appellate court will not reverse a trial court’s
decision to admit or exclude certain evidence, absent an abuse of discretion. State v.
Hand, 107 Ohio St. 3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 92. An abuse of
discretion is more than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151,
157, 404 N.E.2d 144 (1980); Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450
N.E.2d 1140 (1983).
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{¶46} Considering the context of S.M.’s testimony regarding A.C.’s identification
of “Mike” as his assailant, we find that the trial court did not abuse its discretion when it
admitted A.C.’s statement. S.M.’s question was neither coercive nor leading, it
facilitated the expression of the natural focus of A.C.’s thoughts – his assailant, and it
did not destroy the domination of his nervous excitement as a result of being shot four
times.
{¶47} It is reasonable to conclude that A.C., having been shot in the face, elbow,
and shoulder, bleeding from the mouth, and struggling to speak, was unlikely to have
been motivated to lie in order to preserve S.M.’s relationship with her cousin. S.M.
testified that she lied to R.H. about A.C.’s presence in the apartment that evening and
that she and R.H. bickered when he appeared without notice or invitation. Furthermore,
although S.M. did not inform police at the scene that A.C. had identified “Mike” as his
assailant, W.B. identified S.M.’s voice on the 9-1-1 recording yelling that Appellant was
the gunman.
{¶48} Because the record supports the conclusion that A.C.’s statement was an
unreflective and sincere expression of his actual impressions and beliefs in the
aftermath of being shot in the face, neck, and shoulder, and S.M.’s question had no
impact of A.C.’s identification of “Mike” as the gunman, we find that Appellant’s second
assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 3:
THE TRIAL COURT ERRED BY PERMITTING A DETECTIVE TO
TESTIFY, OVER OBJECTION, THAT UNNAMED WITNESSES HAD
BEEN SAYING THAT MICHAEL AUSTIN WAS ASSOCIATED WITH
THE DEATH OF A.C.. EVID.R. 403(A), 801(C), AND 802; T.P. 1105-6.
{¶49} Detective Sergeant Patrick Kelly, the lead investigator of the A.C. murder,
testified that “[law enforcement] started hearing the name [R.H.] and Mike Austin early
on.” (Tr. 1105). An objection by Appellant’s counsel was overruled. Kelly continued,
“We started hearing the name of [R.H.] and Mike Austin early on in the investigation in
possibly being involved in A.C.” (Tr. 1105-1106).
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{¶50} Appellant contends that the out-of-court statements constitute hearsay for
which no exception applies. The state argues that the testimony was offered to explain
Kelly’s subsequent investigative activities, rather than to prove the truth of the matter
asserted.
{¶51} Kelly provided the following summary of the A.C. murder investigation:
Kelly attempted to interview S.M. and B.A. in the two days following A.C.’s murder but
could not locate them. Around that time, he interviewed L.C. and P.H., who arrived at
Victory Estates shortly after A.C. was shot. A meeting of various local law enforcement
agencies, including members of the Mahoning County Law Enforcement Task Force,
was organized by the Chief of Police following the R.H. murder. The goal of the
meeting was to create a coalition of state and federal agents that would share
information and informants to collect evidence connecting members of the drug
organization with the murders. At the meeting, Kelly learned from Officer Robert Patton,
a member of the task force and the lead investigator in the then-ongoing narcotics
investigation of the Moorer/Colvin organization, that A.H., who was about to be indicted
for drug crimes, may have information about the homicides.
{¶52} It is well established that extrajudicial statements made by an out-of-court
declarant are properly admissible to explain the actions of a witness to whom the
statement was directed. State v. Thomas, 61 Ohio St. 2d 223, 232, 400 N.E.2d 401, 408
(1980). Based on Kelly’s testimony, we find that the trial court did not abuse its
discretion when it admitted the unsupported observations of unidentified out-of-court
declarants. The word on the street was not offered for the truth of the matter asserted,
but, instead, to provide a road map of Kelly’s investigation and explain his interest in
A.H.’s information about the homicides. Insofar as the information was not offered as
evidence of Appellant’s guilt, we find that Appellant’s third assignment of error has no
merit.
ASSIGNMENT OF ERROR NO. 4:
THE TRIAL COURT ERRED BY REFUSING TO PERMIT MICHAEL
AUSTIN TO CROSS-EXAMINE A POLICE OFFICER ABOUT THE
OFFICER’S ASSERTION THAT A KEY STATE WITNESS HAD NOT
Case No. 16 MA 0068
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ACTED ILLEGALLY. EVID.R. 611; FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION; T.P. 484,
499, 508, 555-6.
{¶53} Patton summarized all of the convictions that resulted from the drug
indictments in his direct testimony. The narcotics investigation was ongoing when he
and other members of the task force were invited to attend the meeting organized by
the Chief of Police following the A.C. and R.H. homicides. Colvin entered a guilty plea
and was convicted of trafficking in drugs and possession of drugs, felonies of the
second degree, with a forfeiture specification, having while weapons under disability,
and engaging in a pattern of corrupt activity. A.H. entered a guilty plea and was
convicted of two counts of trafficking in drugs, felonies of the second degree, as well as
engaging in a pattern of corrupt activity. Moorer, Johnson Jr. and several other
members of the organization not relevant to the current appeal were prosecuted in
federal court.
{¶54} On cross-examination, Patton conceded that A.H. continued to sell drugs
while he was out on bond for the 2011 drug indictment. Patton testified that a
confidential informant purchased drugs from A.H., and the controlled buy served as
probable cause for a search of the house where A.H. was residing. The search
produced guns, drugs, and drug paraphernalia.
{¶55} Although A.H. was present during the execution of the search warrant,
Patton testified that the search did not produce evidence sufficient to support criminal
charges against A.H. A.H. gave a statement regarding the A.C. and R.H. homicides at
that time. Patton conceded that any conviction based on the search of the home would
have resulted in additional jail time, over and above the agreed sentence for the 2011
drug indictment.
{¶56} On redirect, Patton testified that A.H. entered into a plea agreement that
included a recommended sentence of three years. Patton further testified that there
was insufficient evidence based on the warrant to charge A.H. with any crimes, and, as
a consequence, he was not charged by the state or federal government following the
search, which occurred in February of 2013. According to Patton’s testimony, A.H.
Case No. 16 MA 0068
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agreed to cooperate with the State at that time, and provided a video-taped statement
on February 26, 2013. Patton did not mention the controlled buy on redirect.
{¶57} On recross, Appellant’s counsel asked, “Did you do a report, an
investigative report about that particular buy?” A side bar requested by the state was
held off the record, and cross-examination resumed without any response to the then-
pending question about the investigative report. Patton reiterated that A.H. had not
engaged in any chargeable criminal conduct. Patton further testified that A.H. faced a
maximum of 26 years and a maximum fine of $50,000 for the conduct charged in the
2011 indictment.
{¶58} On further redirect, Patton testified that A.H.’s plea agreement in the 2011
drug case was not predicated upon his cooperation or truthful testimony in this case.
Patton testified that the plea agreement of another individual that was convicted in the
2011 drug case, and was subpoenaed to provide testimony, contained a specific
provision about cooperation and truthful testimony, but A.H.’s plea agreement did not.
{¶59} The following day, Appellant’s counsel made the following proffer:
I’d like to proffer at this time argument against the sustained objection by
Marty Desmond regarding exceeding the scope of redirect. This was
regarding a witness, Detective Robert Patton. It occurred on February 26,
2016. The questions were regarding his investigative report dated
February 20th, 2013 wherein he discussed chargeable criminal activity as
a result of a controlled buy regarding A.H. and a subsequent warrant and
raid of the house where A.H. was staying.
There’s [sic] two issues we’d like to raise. The judge sustained the
objection indicating that the prosecutor did not mention the controlled buy
on redirect. Therefore, any questions made by me regarding the
controlled buy exceeded the scope.
(Tr. 554-555).
{¶60} Citing State v. Treesh, supra, defense counsel argued that Ohio does not
parrot the federal rule with respect to the scope of cross-examination, and cross-
Case No. 16 MA 0068
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examination is not limited to the subject matter of direct examination. Compare Evid.R.
611(B) with Fed.R.Evid. 611(b). It is available for all matters pertinent to the case that
the party calling the witness would have been entitled or required to raise. Id. at 481;
citing Smith v. State, 125 Ohio St. 137, 180 N.E. 695 (1932), paragraph one of the
syllabus. Therefore, trial counsel argued that he should have been able to cross-
examine Patton on the investigative report. The investigative report was not admitted
into evidence as part of the proffer.
{¶61} The right to cross-examine witnesses is guaranteed to a defendant, but
recross-examination is only required when the state enquires into new matters on
redirect. State v. Faulkner, 56 Ohio St. 2d 42, 46, 381 N.E.2d 934 (1978), citing Alford v.
United States, 282 U.S. 687, 51 S. Ct. 218, 75 L. Ed. 624 (1931). “Because redirect
examination is limited to new matters raised on cross-examination, ‘[i]deally, no new
material should be presented on redirect, because litigants will in theory have presented
all pertinent issues during the direct examination * * * it stands to reason that no new
matters should arise on redirect examination.’ ” State v. Hartley, 8th Dist. No. 81706,
2003-Ohio-3946, ¶ 14, quoting United States v. Riggi, 951 F.3d 1368, 1375 (3d
Cir.1991).
{¶62} When new matters arise on redirect examination, the trial court must allow
the defense the opportunity to recross-examine. Faulkner at 46. Where the evidence is
new, the right to cross-examination would necessarily attach, because cross-
examination would be the only means by which the accused could test the reliability of
the evidence.” Hartley, supra, citing Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105,
39 L. Ed. 2d 347 (1974). The Eighth District has observed that “while the abuse of
discretion standard necessarily suggests that there can be no hard and fast rules on
what constitutes new material for purposes of recross-examination, * * * the [trial] court
should seek to limit recross-examination to testimony on redirect examination which
raises a new subject-matter that is both material and non-redundant in context.” State
v. Hartley, 8th Dist. No. 81706, 2003-Ohio-3946, ¶ 20.
{¶63} Trial counsel had the opportunity to ask Patton about the investigative
report on cross-examination but failed to do so. The state did not elicit any new
testimony regarding the controlled buy on redirect. As a consequence, we find that the
Case No. 16 MA 0068
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trial court did not abuse its discretion when it did not allow defense court to recross-
examine Patton regarding the controlled buy, and, therefore, Appellant’s fourth
assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 5:
CUMULATIVE ERROR PREJUDICED MICHAEL AUSTIN. FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, EVID.R. 403(A), 611, 801(C), 802, 803(2).
{¶64} Cumulative error exists only where the harmless errors during trial actually
“deprive[d] a defendant of the constitutional right to a fair trial.” State v. DeMarco, 31
Ohio St. 3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. There is no
such thing “as an error-free, perfect trial, and * * * the Constitution does not guarantee
such a trial.” State v. Hill, 75 Ohio St. 3d 195, 212, 661 N.E.2d 1068 (1996), quoting
United States v. Hasting, 461 U.S. 499, 508–509, 103 S. Ct. 1974, 76 L. Ed. 2d 96(1983). To support a claim of cumulative error, there must be multiple instances of
harmless error. State v. Garner, 74 Ohio St. 3d 49, 64, 656 N.E.2d 623 (1995). When
an appellate court finds no error, the doctrine does not apply. State v. Lyons, 7th Dist.
No. 16-JE-0008, 2017-Ohio-4385, ¶ 46. Because we have not found any error, we find
that Appellant’s fifth assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 6:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
SENTENCING MICHAEL AUSTIN TO LIFE WITHOUT PAROLE.
EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION; R.C. 2953.08; APX. A-1; T.P. 1-26 (SENTENCING).
{¶65} Appellant contends that R.C 2953.08(D)(3), which prohibits appellate
review of sentences imposed for murder and aggravated murder, violates the Eighth
and Fourteenth Amendments. The statutory right to appellate review of a criminal
sentence is provided in R.C. 2953.08, which, according to the Ohio Supreme Court,
Case No. 16 MA 0068
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“specifically and comprehensively defines the parameters and standards – including the
standard of review – for felony-sentencing appeals.” State v. Marcum, 146 Ohio St. 3d
516, 59 N.E.3d 1231, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 21.
{¶66} R.C. 2953.08(D)(3) reads, in its entirety, “[a] sentence imposed for
aggravated murder or murder pursuant to section 2929.02 to 2929.06 of the Revised
Code is not subject to review under this section.” In State v. Porterfield, 106 Ohio St. 3d
5, 2005-Ohio-3095, 829 N.E.2d 690 (2005), the Ohio Supreme Court recognized that
R.C. 2953.08(D)(3) is unambiguous. The Court opined that the statute, “clearly means
what it says: such a sentence cannot be reviewed.” Id. at ¶ 17.
{¶67} Legislative enactments are to be afforded a strong presumption of
constitutionality. State v. McDonald, 31 Ohio St. 3d 47, 48, 509 N.E.2d 57, 59 (1987).
Any reasonable doubt regarding the constitutionality of a statute must be resolved in
favor of the legislature’s power to enact the law. Id. Thus, legislation will not be struck
down unless the challenger establishes that it is unconstitutional beyond a reasonable
doubt. State v. Weitbrecht, 86 Ohio St. 3d 368, 1999-Ohio-113, 715 N.E.2d 167 citing
State v. Thompkins, 75 Ohio St. 3d 558, 560, 664 N.E.2d 926, 928 (1996).
{¶68} R.C. 2953.08(D)(3) has survived constitutional challenges predicated
upon the Equal Protection Clause of the Unites States Constitution in State v. Burke,
2016-Ohio-8185, 69 N.E.3d 774 (2d Dist.), State v. Wilson, 4th Dist. No. 16CA12, 2018-
Ohio-2700 and State v. Weaver, 5th Dist. No. CT2016-0033, 2017-Ohio-4374, 93
N.E.3d 178, ¶ 20, appeal not allowed, 151 Ohio St. 3d 1510, 2018-Ohio-365, 90 N.E.3d
950, ¶ 20 (2018). Both the Second and Fourth Districts concluded that the severity of
the crimes of murder and aggravated murder provide a rational basis for the separate
statutory scheme, and recognized that “[t]he General Assembly's practice of treating
sentencing for aggravated murder and murder convictions differently from other felonies
is longstanding.” State v. Hollingsworth, 143 Ohio App. 3d 562, 569, 758 N.E.2d 713 (8th
Dist. 2001).
{¶69} The Eighth Amendment to the United States Constitution applies to the
states pursuant to the Fourteenth Amendment. See Robinson v. California, 370 U.S.
660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). The amendment provides: “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
Case No. 16 MA 0068
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inflicted.” The Eighth Amendment’s prohibition of cruel and unusual punishment
“guarantees individuals the right not to be subjected to excessive sanctions.” Roper v.
Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, 161 L. Ed. 2d 1. The constitutional right
flows from the basic precept of justice that punishment for crime should be graduated
and proportioned to both the offender and the offense. Id.
{¶70} Appellant cites no case law in support of his Eighth Amendment
challenge. He relies exclusively on the statement relating to the denial of a writ of
certiorari written by United States Supreme Court Justice Sotomayor in Campbell v.
Ohio, -- U.S. --, 138 S. Ct. 1059, 2017 WL 4409905. Campbell challenged the
constitutionality of R.C. 2953.08(D)(3) for the first time before the Ohio Supreme Court,
and argued that the statute violated the Due Process and Equal Protection Clauses of
the Unites States Constitution. Certiorari was denied by both the state and federal high
courts based on Campbell’s failure to adequately and sufficiently present his
constitutional argument to the state intermediate court.
{¶71} Nonetheless, Justice Sotomayor observed that “[t]rial judges making the
determination whether a defendant should be condemned to die in prison have a grave
responsibility, and the fact that Ohio has set up a scheme under which those
determinations ‘cannot be reviewed’ is deeply concerning.” Id. at 1060, quoting R.C.
2953.08(D)(3). Recognizing that life without parole “is the second most severe penalty
permitted by law,” Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 115
L. Ed. 2d 836 (1991)(Kennedy, J., concurring in part and concurring in judgment), Justice
Sotomayor criticized R.C. 2953.08(D)(3) because “a life-without-parole sentence [in
Ohio], no matter how arbitrarily or irrationally imposed, is shielded from meaningful
review.” Campbell at 1060.
{¶72} Justice Sotomayor observed that the correspondence between capital
punishment and life sentences might similarly require reconsideration of other
sentencing practices in the life-without-parole context. She observed that Eighth
Amendment jurisprudence developed in the capital context calls into question whether a
defendant should be condemned to die in prison “without an appellate court having
passed on whether that determination properly took account of his circumstances, was
imposed as a result of bias, or was otherwise imposed in a ‘freakish manner.’ ” Id.
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{¶73} However, in 1991, in Part IV of Harmelin, supra, a plurality of the United
States Supreme Court concluded that a mandatory sentence of life without parole,
without consideration of mitigating factors, does not violate the Eighth Amendment.
Harmelin asked the Court to create an “individualized mandatory life in prison without
parole sentencing doctrine” similar to the “individualized capital-sentencing doctrine.”
Id. at 995. The Harmelin plurality declined, reasoning that “there is no comparable
requirement outside the capital context, because of the qualitative difference between
death and all other penalties.” Id. The plurality cited Justice Stewart’s concurring
opinion in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), for
the proposition that:
The penalty of death differs from all other forms of criminal punishment,
not in degree but in kind. It is unique in its total irrevocability. It is unique in
its rejection of rehabilitation of the convict as a basic purpose of criminal
justice. And it is unique, finally, in its absolute renunciation of all that is
embodied in our concept of humanity.”
Harmelin at 995-996, citing Furman at 306 (Stewart, J., concurring).
{¶74} The plurality in Harmelin further observed that a sentence of life without
parole is unique in that it is the second most severe known to the law; but life
imprisonment with the possibility of parole is also unique in that it is the third most
severe. And if the petitioner’s sentence foreclosed some “flexible techniques” for later
reducing his sentence, it did not foreclose all of them, since there remained the
possibilities of retroactive legislative reduction and executive clemency. Id. at 996.
Finally, the plurality recognized that there would be negligible difference between life
without parole and other sentences of imprisonment – for example, a life sentence with
eligibility for parole after 20 years, or even a lengthy term sentence without eligibility for
parole, given to a 65-year-old man. The Harmelin plurality opined that, even where the
difference is the greatest, a sentence of life without parole cannot be compared with
death. Id.
Case No. 16 MA 0068
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{¶75} Although not directly on point, the reasoning of the plurality in Harmelin is
directly at odds with Justice Sotomayor’s observation that life-without-parole sentences,
because of their likeness to death sentences, must be afforded meaningful appellate
review. Although the United States Supreme Court, post-Harmelin, has carved out an
Eighth Amendment exception for mandatory life-without-parole sentences for juvenile
offenders, the exception is closely circumscribed to individuals that committed their
crimes prior to the age of 18. Further, although R.C. 2953.08(D)(3) forecloses appellate
review of Appellant’s murder and aggravated murder sentences, the sentencing court
was nonetheless obligated to consider the goals of sentencing and the aggravating and
mitigating factors set forth in R.C. 2929.11 and 2929.12 prior to imposing sentence.
{¶76} The United States Supreme Court has yet to consider the constitutionality
of a statute that forecloses appellate review of a sentence of life without parole. In
rejecting the argument that mandatory life-without-parole sentences for adults should be
afforded the same individualized sentencing as capital sentences, a plurality of the
Court recognized that a sentence of life without parole is not tantamount to a death
sentence. As a consequence, we conclude that Appellant has failed to demonstrate
beyond a reasonable doubt that R.C. 2953.08(D)(3) violates the Eighth Amendment.
{¶77} In State v. Weitbrecht, 86 Ohio St. 3d 368, 715 N.E.2d 167 (1999), the
Ohio Supreme Court applied Justice Kennedy’s Eighth Amendment analysis in his
concurring opinion in Harmelin at 997, 111 S. Ct. 2680, 115 L. Ed. 2d 836, citing with
approval his conclusion that “ ‘[t]he Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids only extreme sentences
that are “grossly disproportionate” to the crime.’ ” Weitbrecht, 86 Ohio St.3d at 373, 715
N.E.2d 167, quoting Harmelin, 501 U.S. at 1001, 111 S. Ct. 2680, 115 L. Ed. 2d 836(Kennedy, J., concurring in part and in judgment). The Ohio Supreme Court further
emphasized that “ ‘only in the rare case in which a threshold comparison of the crime
committed and the sentence imposed leads to an inference of gross disproportionality’ ”
may a court compare the punishment under review to punishments imposed in Ohio or
in other jurisdictions. Id. at 373, 715 N.E.2d 167, fn. 4, quoting Harmelin, 501 U.S. at
1005.
Case No. 16 MA 0068
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{¶78} Even assuming arguendo that R.C. 2953.08(D)(3) is unconstitutional, we
find that Appellant’s sentences are neither grossly disproportionate to his crimes nor
clearly and convincingly contrary to law. Appellant argues that he was between the
ages of eighteen and nineteen when he committed his crimes, and the United States
Supreme Court has held that “young people are ‘less culpable’ than older ones, and
also that they have a particularly high chance of rehabilitation.” (Appellant’s Brf., p. 26).
Appellant contends that even though he was over the age of eighteen, he was still a
“young person,” and the trial court should have considered his age when imposing its
sentence, citing Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825(2010) and Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
{¶79} In Roper, supra, the United States Supreme Court held that the Eighth
Amendment bars capital punishment for individuals under the age of 18. The Roper
Court recognized that children are constitutionally different from adults for sentencing
purposes. Their “ ‘lack of maturity’ ” and “ ‘underdeveloped sense of responsibility’ ” lead
to recklessness, impulsivity, and heedless risk-taking. Id. at 569. They “are more
vulnerable * * * to negative influences and outside pressures,” including from their family
and peers; they have limited “contro[l] over their own environment” and lack the ability to
extricate themselves from horrific, crime-producing settings. Id. And because a child's
character is not as “well formed” as an adult's, his traits are “less fixed” and his actions
are less likely to be “evidence of irretrievabl[e] deprav[ity].” Id. at 570.
{¶80} In Graham, supra, the defendant was sentenced to life imprisonment
without the possibility of parole after being convicted of armed robbery, while he was on
probation for crimes committed as a juvenile. The United States Supreme Court held
that the Eighth Amendment prohibits imposition of a life sentence without parole for a
juvenile offender who did not commit homicide, and that a state must give a juvenile
non-homicide offender a meaningful opportunity to obtain release. Id., paragraphs one
and two of the syllabus.
{¶81} Two years later, in Miller, supra, the United States Supreme Court held
that a sentencing scheme that mandated life in prison without the possibility of parole
for juvenile homicide offenders violated the Eighth Amendment prohibition against cruel
Case No. 16 MA 0068
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and unusual punishment. Id., syllabus. The defendants in that case were each
convicted of capital murder committed when they were 14 years old.
{¶82} Roper and Graham emphasized that the distinctive attributes of youth
diminish the penological justifications for imposing the harshest sentences on juvenile
offenders, even when they commit terrible crimes. However, in Graham, the United
States Supreme Court recognized that “18 is the point where society draws the line for
many purposes between childhood and adulthood * * *” Graham at 2016. Clearly, the
United States Supreme Court has drawn the same line for the purpose of sentences of
life without parole. Insofar as Appellant was over the age of eighteen when he
committed his crimes, we find that Graham and Miller are inapposite.
{¶83} Even assuming that Appellant’s age is a relevant consideration, his crimes
were not the result of recklessness, impulsivity, or heedless risk-taking. Appellant
murdered four people, coldly plotting the murder of three. A.C. died for no other reason
than he was related to a man who was allegedly planning to rob Colvin. K.M. died
because she unwittingly accompanied R.S. to an ambush. The testimony at trial
establishes that Appellant is a merciless killer who premeditated murder for financial
gain.
{¶84} Based on the United States Supreme Court’s refusal to adopt an
“individualized mandatory life in prison without parole sentencing doctrine,” Harmelin at
994, we find Appellant has failed to prove beyond a reasonable doubt that R.C.
2953.08(C)(3) violates the Eighth Amendment. In the alternative, we find that
Appellant’s sentences for murder and aggravated murder are neither grossly
disproportionate to his crimes nor clearly and convincingly contrary to law. As a
consequence, Appellant’s sixth assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 7:
THE RECORD CLEARLY AND CONVINCINGLY DOES NOT SUPPORT
THE TRIAL COURT'S FINDINGS IN SUPPORT OF CONSECUTIVE
SENTENCES. R.C. 2953.08; APX. A-1, T.P.19 (SENTENCING).
Case No. 16 MA 0068
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{¶85} Consecutive sentences in Ohio are imposed pursuant to R.C.
2929.14(C)(4), which 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 that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender
poses to the public, and if the court also finds 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.
(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.”
{¶86} Although the trial court is not required to recite the statute verbatim or utter
“magic” or “talismanic” words, there must be an indication that the court found (1) that
consecutive sentences are necessary to protect the public from future crime or to
punish the offender, (2) that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger posed to the public, and (3) one
of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State v. Bellard, 7th Dist.
No. 12-MA-97, 2013-Ohio-2956, ¶ 17. The trial court need not give its reasons for
Case No. 16 MA 0068
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making those findings. State v. Power, 7th Dist. No. 12 CO 14, 2013-Ohio-4254, ¶ 38.
A trial court must make the consecutive sentence findings at the sentencing hearing and
must additionally incorporate the findings into the sentencing entry. State v. Williams,
7th Dist. No. 13-MA-125, 2015-Ohio-4100, ¶ 33-34, citing State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶87} A defendant can challenge a consecutive sentence on appeal by one of
two means: First, by contending the sentence is contrary to law because the trial court
failed to make the necessary findings required by R.C. 2929.14(C)(4). See R.C.
2953.08(G)(2)(b). Second, the defendant can argue the record does not support the
findings made under R.C. 2929.14(C)(4). R.C. 2953.08(G)(2)(a). State v. Collins, 7th
Dist. No. 15 NO 0429, 2017-Ohio-1264, ¶ 6.
{¶88} Appellant does not argue that the trial court failed to make the necessary
statutory findings or that the record does not support the imposition of consecutive
sentences. Instead, Appellant advances a theoretical argument that any sentence
imposed to be served consecutively to a sentence of life without parole cannot fulfill the
statutory requirements to protect and punish, insofar as any sentence in addition to life
without parole can have no practical effect.
{¶89} In Porterfield supra, the Ohio Supreme Court acknowledged that appellate
courts are statutorily prohibited from reviewing sentences for murder and aggravated
murder. The Porterfield Court concluded nonetheless that appellate courts are not
statutorily prohibited from reviewing the imposition of consecutive sentences that
include a sentence or sentences for murder or aggravated murder convictions.
Porterfield ¶ 19 (“While R.C. 2953.08(D) clearly precludes review of individual murder
sentences imposed pursuant to R.C. 2929.02 to 2929.06, none of these sections
authorize consecutive sentences.”)
{¶90} We have previously held that a challenge to the imposition of determinate
sentences for firearms specifications consecutive to a sentence of life without parole is
moot. State v. Herring, 7th Dist. No. 00 JE 37, 2002-Ohio-2786, ¶ 34. A case or issue
is moot when it becomes “academic”; that is, the court can issue no decision that will
have any practical effect on the controversy. State ex rel. Cincinnati Enquirer v. Hunter,
Case No. 16 MA 0068
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141 Ohio St. 3d 419, 24 N.E.3d 1170, 2014-Ohio-5457, 24 N.E.3d 1170, ¶ 4, quoting In
re L.W., 168 Ohio App. 3d 613, 2006-Ohio-644, 861 N.E.2d 546, ¶ 11 (10th Dist.).
{¶91} The Herring panel predicated its conclusion on State v. Campbell, 69 Ohio
St.3d 38, 630 N.E.2d 339 (1999), where the Ohio Supreme Court held that a challenge
to the imposition of consecutive sentences is rendered moot by the imposition of the
death sentence. Id. at 52; see also State v. Scott, 101 Ohio St. 3d 31, 2004-Ohio-10,
800 N.E.2d 1133, ¶ 50; State v. Lynch, 98 Ohio St. 3d 514, 2003-Ohio-2284, 787 N.E.2d
1185, ¶ 142. In 1995, the Eleventh District Court of Appeals extended Campbell to
determinate sentences imposed consecutively with a sentence of life imprisonment
without parole, and concluded that a prison term served consecutively to the life term is
moot. State v. Davie, 11th Dist. No. 92-T-4693 (Dec. 27, 1995). The Eight District has
likewise recognized that “[a]lthough a prison term of life without the possibility of parole
is not the same as a death sentence, the import is the same” as it relates to the
imposition of consecutive sentences. State v. Campbell, 8th Dist. No. 103982, 2016-
Ohio-7613, ¶ 8, appeal not allowed, 149 Ohio St. 3d 1464, 2017-Ohio-5699, 77 N.E.3d
988 (2017), and cert. denied, 138 S. Ct. 1059, 200 L. Ed. 2d 502 (2018).
{¶92} The Eighth District in State v. Chavez, 8th Dist. No. 99436, 2013-Ohio-
4700, opined that “[i]mposing additional consecutive sentences to a life-without-parole
sentence has a social goal of sending a message to offenders and the public that
abhorrent behavior will be severely punished, but has no legal significance outside of
academic rhetoric.” Id. at ¶ 47. As Appellant correctly argues, the imposition of
consecutive sentences has no practical effect. Accordingly, we find that any argument
predicated upon the imposition of sentences consecutive to the imposition of a sentence
of life without parole is moot.
{¶93} Despite the fact that the Ohio Supreme Court held that the challenge to
the imposition of consecutive sentences was moot in Campbell, it still addressed the
merits of the issue, and found no error. Campbell, 69 Ohio St.3d at 58, 630 N.E.2d 355.
We reach the same conclusion here.
{¶94} After imposing the specific sentences for each crime, the trial court stated:
This court additionally finds that consecutive prison terms are necessary
to protect the public, to punish you, that they are not disproportionate and
Case No. 16 MA 0068
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find that the harm was so great that a single term does not adequately
reflect the seriousness of your conduct and that consecutive terms are
needed to protect the public, and I am, therefore, ordering that Counts 1,
4, 10, 11 and 29 be served consecutively to each other.
(7/27/16 Sent. Tr., 18-19).
{¶95} The trial court made the required statutory findings and the imposition of
consecutive sentences is supported by the record. The murders were committed in cold
blood and for pecuniary gain. There is no question that consecutive sentences serve
the dual purpose of punishing Appellant and protecting the public by making certain that
he will never be released from prison. Further, the consecutive sentences are not
disproportionate to Appellant’s crimes, as a single term of imprisonment would not
adequately reflect the seriousness of his conduct.
{¶96} In summary, we find that Appellant’s argument based on the lack of
practical effect of sentences imposed consecutive to a sentence of life without parole is
moot. In the alternative, we find that the trial court made the required statutory findings,
and the imposition of consecutive sentences is supported by the record and not contrary
to law. Therefore, Appellant’s seventh assignment of error has no merit.
CONCLUSION
{¶97} Appellant has failed to show that the trial court abused its discretion with
respect to the admission of the evidence at issue in this appeal. Appellant has likewise
failed to show that R.C 2953.08(D)(3) is unconstitutional beyond a reasonable doubt.
Further, Appellant’s sentence is neither contrary to law nor grossly disproportionate to
his crimes, and, therefore, does not violate the constitutional prohibition on cruel and
unusual punishment. Finally, Appellant’s challenge to the imposition of consecutive
sentences to his life-without-parole sentence is moot, or, in the alternative, his
sentences are not contrary to law. For the foregoing reasons, Appellant’s conviction
and sentence are affirmed.
Donofrio, J., concurs.
Robb,J., concurs.
Case No. 16 MA 0068
[Cite as State v. Austin, 2019-Ohio-1185.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.