State v. Green , 2020 Ohio 5206 ( 2020 )

[Cite as State v. Green, 2020-Ohio-5206.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
:
STATE OF OHIO :
: Appellate Case No. 28614
Plaintiff-Appellee :
: Trial Court Case No. 2018-CR-4618
v. :
: (Criminal Appeal from
TAJRAE MARQUIS GREEN : Common Pleas Court)
:
Defendant-Appellant :
...........
OPINION
Rendered on the 6th day of November, 2020.
...........
MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
Attorney for Defendant-Appellant
.............
FROELICH, J.
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{¶ 1} Tajrae Marquis Green was convicted after a jury trial of aggravated burglary,
a first-degree felony. The trial court sentenced him to 10 years in prison and ordered
him to pay restitution of $50 and court costs.
{¶ 2} Green appeals from his conviction, claiming that (1) the trial court erred in
denying his motion to suppress an eyewitness identification, (2) his conviction was based
on insufficient evidence and was against the manifest weight of the evidence, (3) the court
erred in allowing other acts evidence, (4) the court erred in failing to give a jury instruction
on alibi, (5) cumulative error deprived him of a fair trial, and (6) the court failed to consider
appropriate statutory factors at sentencing. For the following reasons, the trial court’s
judgment will be affirmed.
I. Motion to Suppress
{¶ 3} In his first assignment of error, Green claims that the trial court erred in failing
to suppress the victim’s pretrial identification of him.
{¶ 4} In ruling on a motion to suppress, the trial court “assumes the role of the trier
of fact, and, as such, is in the best position to resolve questions of fact and evaluate the
credibility of the witnesses.” State v. Retherford, 93 Ohio App. 3d 586, 592, 639 N.E.2d
498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, ¶
30. Accordingly, when we review suppression decisions, we must accept the trial court’s
findings of fact if they are supported by competent, credible evidence. Retherford at 592.
“Accepting those facts as true, we must independently determine as a matter of law,
without deference to the trial court’s conclusion, whether they meet the applicable legal
standard.” Id.
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{¶ 5} Detective Jeffrey Colvin of the Huber Heights Police Department was the sole
witness at the suppression hearing. His testimony established the following facts.
{¶ 6} On November 17, 2018, Judy Owens was alone in her home when she heard
her doorbell ring. Owens went to the door, but she did not recognize the individual and
did not open the door. She then went to a bedroom window, watched the man go to and
get into a silver car, and saw him “kind of wrestle around” in the car. Owens went back
to her living room, where she was watching the Ohio State football game, and the doorbell
rang again. Owens was a little slower getting up this time, and when she walked back
to the hallway to go to the bedroom, the man was standing in the hallway inside her house.
Owens asked him how he got in the house. The man raised his fist up and asked where
her purse was. Owens walked to the kitchen and got money out of her purse, handed it
to him, and he told her to go to the back bedroom and to wait ten minutes before coming
out. The man left the house after receiving the money. The silver car was gone when
Owens went back to the window to look. Owens immediately called the police.
{¶ 7} At approximately 12:37 p.m., police officers were dispatched to Owens’s
home on a report of an aggravated burglary. Owens relayed to the officers what had
occurred, and she provided a physical description of the perpetrator to the responding
officers.
{¶ 8} Detective Colvin followed up with Owens by telephone on November 19.
During their conversation, Owens described the perpetrator. Colvin recalled the
description as “black male, 20-ish” years old, “six-foot, 170 [pounds, and] short
dreadlocks.” Owens did not describe the perpetrator’s clothing, but she indicated that
he was neatly dressed. The description was similar to the one provided to the
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responding officers. Owens did not know the burglar and had never seen him before.
Owens also told Colvin that the burglar had a four-door silver sedan. Colvin did not have
a suspect at that time.
{¶ 9} After the burglary of Owens’s home, a few more daytime burglaries occurred
where the perpetrator was described similarly to the man Owens had described and was
driving a silver or gray Honda. On November 29, the Huber Heights Police Department
received information from the Montgomery County Sheriff’s Office about a similarly-
described individual who had acted suspiciously around a home in Harrison Township on
November 26. The resident inside the home had taken a photo of the individual and the
individual’s Honda. The Sheriff’s Office forwarded the two photos to the Huber Heights
Police Department. Detective Colvin spent several days looking at records for early
2000s silver Hondas.
{¶ 10} On December 3 (16 days after the burglary of Owens’s home), Detective
Colvin went to Owens’s residence to get a DNA standard from her to exclude her DNA
from any evidence the police had obtained. While there, Colvin showed Owens the
photographs he received from the Montgomery County Sheriff’s Office of the Honda and
of the individual. Colvin showed Owens the photo of the car first, and Owens responded
that the photo showed the vehicle that had been outside her home. (Colvin
acknowledged that the vehicle in the photo was a four-door, but Owens testified at the
preliminary hearing in this case that the vehicle she saw was a two-door.) When Colvin
showed Owens the photo of the man, Owens “became emotional.” Colvin testified: “I
think she teared up a little bit, and she [said], I’m 100 percent sure that’s the one that was
in my house.”
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{¶ 11} Detective Colvin testified that he did not have a name, birthdate, Social
Security number, or any other information about the man in the photo. He stated that, if
he had, he would have prepared a photo spread for Owens.
{¶ 12} The same day as Owens’s identification, the police department posted the
photos on social media seeking assistance from the public. Several people responded
to the department that they had had similar experiences. In addition, on December 4,
Detective Minnix from the Vandalia Police Department called to say that Green might the
person that the Huber Heights Police Department was looking for. Vandalia was also
experiencing daytime burglaries, and Minnix had identified Green as the person who had
sold a particular stolen necklace.
{¶ 13} Detective Minnix was conducting surveillance of Green’s apartment.
Detective Colvin met Minnix there, and they obtained a search warrant for Green’s
apartment and vehicle.
{¶ 14} Green moved to suppress Owens’s identification, which purported to
identify him as the perpetrator of the aggravated burglary. Green claimed that Detective
Colvin’s single-photo identification process was improperly suggestive and created a
“substantial risk of irreparable mistaken identification.”
{¶ 15} After a hearing, the trial court overruled the motion. The trial court initially
found that the presentation of the photographs was inherently, and thus unnecessarily,
suggestive. The court nevertheless concluded that Owens’s identification was reliable.
The court reasoned, in part:
* * * Ms. Owens was able to closely view Green twice on the day of the
alleged aggravated burglary: once when he initially rang the doorbell and
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then left, and then once when he actually entered Ms. Owens’ house.
Green was in Ms. Owens’ hallway, pointing a gun at her. Ms. Owens
retrieved her purse and money and gave the money to Green. She also
observed him get into a silver car twice. Ms. Owens provided a description
of the suspect to responding officers on the day of the offense, and then
provided the same description to Det. Colvin two days later. She described
the suspect as a black male in his twenties, who appeared to be about one
hundred seventy pounds and who had short dreadlocks. The photograph
of Green which Det. Colvin showed Ms. Owens was taken twelve days after
the alleged aggravated burglary offense, and showed a black male with
short dreadlocks. State’s Ex. 1. Ms. Owens was shown this photograph on
December 3, 2018, sixteen days after the offense was allegedly committed.
When Ms. Owens’ observed State’s Ex. 1, she identified the individual as
the person who had been in her house with 100% certainty. Thus, based
on the totality of the circumstances, the Court finds that Ms. Owens’ pretrial
identification was reliable. As such, Green’s constitutional rights were not
violated by this identification.
{¶ 16} Green subsequently filed a motion for reconsideration, arguing that several
of the court’s factual findings were not supported by the suppression hearing testimony:
(1) that Owens answered the door when the burglar first rang the doorbell, (2) that the
burglar had a gun, and (3) that DNA from Green matched DNA obtained from Ms. Owens’
house.
{¶ 17} The trial court overruled the motion to reconsider. It explained:
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While the Court may have mistakenly understood Det. Colvin to testify that
Green was in Ms. Owens’ house with a gun in his hand, the fact that Green
had a gun was not determinative in finding Ms. Owens’ pre-trial identification
to be reliable. Rather, the Court highlighted that Ms. Owens observed
Green at her front door when he “initially rang the doorbell and then left”
and then standing in front of her in the hallway of her house. Motion to
Suppress Decision, p. 4. These two observations allowed Ms. Owens to
consistently describe the suspect to both the responding officers and Det.
Colvin as a black male in his twenties who appeared to be approximately
one hundred seventy pounds and who had short dreadlocks. Id. The
consistency of the descriptions, which provided specific details, lends to the
reliability of Ms. Owens’ pre-trial identification. In its Decision, the Court
indicated that Ms. Owens “answered her front door.” Id. at p. 1. This was
not intended to imply that Ms. Owens opened the front door, but rather that
she responded to the doorbell by going to the front door in order to observe
the person who rang the bell. Further, at no point in its analysis did the
Court refer to any discovery of Green’s DNA as a factor related to the
reliability of Ms. Owens’ identification. Id. at p. 4-5. Rather, the Court
emphasized that within sixteen days of the alleged commission of the
offense, Ms. Owens identified with 100% certainty that the individual in the
photograph Det. Colvin showed her was the person who had been in her
house. Id. at p. 5. The Court also noted that the individual in this
photograph was a black male with short dreadlocks. Id.
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{¶ 18} On appeal, Green claims that the trial court erred in failing to suppress
Owens’s identification for two reasons. First, he argues that the identification procedures
employed by Detective Colvin did not comply with R.C. 2933.83. Second, he asserts
that the record does not support the trial court’s conclusion that Owens’s identification
was reliable.
{¶ 19} “Due process requires suppression of pre-trial identification of a suspect
only if the identification procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of misidentification.” Neil v. Biggers, 409 U.S. 188, 196-97, 93
S. Ct. 375, 34 L. Ed. 2d 401 (1972).
{¶ 20} The defendant must first show that the identification procedure was unduly
suggestive. We have recognized that a show-up identification procedure, which involves
showing just one individual to an eyewitness, as opposed to a lineup of different
individuals, is inherently suggestive. E.g., State v. Henderson, 2d Dist. Montgomery No.
28241, 2020-Ohio-6, ¶ 20; State v. Martin, 127 Ohio App. 3d 272, 277, 712 N.E.2d 795
(2d Dist.1998). “Nevertheless, an individual show-up identification procedure may
survive constitutional challenge if there is evidence that it is sufficiently reliable.” Martin
at 277.
{¶ 21} When a defendant shows that the pretrial identification procedure was
unduly suggestive, the court must then consider whether the identification, viewed under
the totality of the circumstances, was reliable despite the suggestive procedure. See
Williams at ¶ 13. In reviewing the likelihood that the circumstances resulted in a
misidentification, courts have considered the opportunity of the witness to view the
perpetrator at the time of the offense, the witness’s degree of attention, the accuracy of
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the witness’s prior description of the perpetrator, the level of certainty demonstrated by
the witness at the confrontation, and the length of time between the crime and the
confrontation.1 Biggers at 199-200; Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243,
53 L. Ed. 2d 140 (1977); State v. Bates, 110 Ohio St. 3d 1230, 2006-Ohio-3667, 850 N.E.2d
1208, ¶ 8. Nevertheless, “[a]gainst these factors is to be weighed the corrupting effect
of the suggestive identification itself.” Manson. at 114. See, also, State v. Main, 2d Dist.
Montgomery No. 26952, 2016-Ohio-4892, ¶ 7.
{¶ 22} Reliability of the pretrial identification is the linchpin in determining its
admissibility. Manson at 114. “So long as the identification possesses sufficient aspects
of reliability, there is no violation of due process.” State v. Sherls, 2d Dist. Montgomery
No. 18599, 2002 WL 254144, *3 (Feb. 22, 2002).
{¶ 23} We review a trial court’s denial of a motion to suppress a pretrial
identification for an abuse of discretion. State v. Wilson, 2d Dist. Montgomery No. 22624,
2009-Ohio-1038, ¶ 19; State v. Dewberry, 2d Dist. Montgomery No. 27434, 2020-Ohio-
691, ¶ 75.
{¶ 24} Green argues that Detective Colvin failed to comply with R.C. 2933.83.
1 We have previously noted that some of the factors identified in Biggers may bear
reconsideration in light of the significant advancement of scientific understanding of
memory. See State v. Frazier, 2016-Ohio-727, 60 N.E.3d 633, ¶ 18, fn. 1 (2d Dist.); State
v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-8366, ¶ 12, fn. 3. For example,
Biggers and Manson direct courts to consider the witness’s degree of certainty in the
identification, yet studies have repeatedly shown little relationship between certainty and
accuracy. See, e.g., State v. Mabberly, 2d Dist. Montgomery No. 27729, 2019-Ohio-891,
¶ 41, ¶ 44. Nonetheless, as an intermediate court of appeals, this court must continue
to follow the factors articulated in Biggers and Manson, as required by Ohio Supreme
Court precedent. See, e.g., State v. Bates, 110 Ohio St. 3d 1230, 2006-Ohio-3667, 850
N.E.2d 1208, ¶ 9; State v. Gross, 97 Ohio St. 3d 121, 2002-Ohio-5524, 776 N.E.2d 1061,
¶ 19, ¶ 25.
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That statute, which was enacted in 2010, provides minimum requirements for live lineup
and photo lineup procedures. However, a failure to comply with R.C. 2933.83 does not
necessarily require suppression. R.C. 2933.83(C)(1) states that evidence of the failure
to comply with the required procedures “shall be considered by trial courts in adjudicating
motions to suppress eyewitness identification resulting from or related to the lineup.”
(Emphasis added.) See also, e.g., State v. McShann, 2d Dist. Montgomery No. 27803,
2019-Ohio-4481, ¶ 40 (“even if a violation of R.C. 2933.83 occurs, violations of that statute
are not independent grounds for suppression.”); State v. Harmon, 2017-Ohio-8106, 98
N.E.3d 1238, ¶ 23 (2d Dist.). Accordingly, we focus on whether “the procedure used in
administering the photospread in this case, while not in compliance with R.C. 2933.83,
was ‘not so impermissibly suggestive as to give rise to a substantial likelihood of
misidentification.’ ” Harmon at ¶ 31, quoting State v. Moon, 2d Dist. Montgomery No.
25061, 2013-Ohio-395, ¶ 35.
{¶ 25} In this case, the trial court found, and we agree, that the show-up
identification procedure was unduly suggestive. Thus, the question before us is whether
Owens’s identification nevertheless was reliable. Although we find this to be a close call,
we cannot conclude that the trial court abused its discretion when it determined that
Owens’s identification was reliable.
{¶ 26} As an initial matter, Green argues that the record was insufficient to
demonstrate the reliability of Owens’s identification because Owens did not testify at the
suppression hearing. We disagree. Detective Colvin’s testimony provided ample detail
about Owens’s encounter with Green for the trial court to make a determination about the
reliability of Owens’s identification. While the trial court would have been aided by
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additional testimony from Owens, we do not conclude that Detective Colvin’s testimony,
alone, was insufficient.
{¶ 27} We note that there is no suggestion in the record that defense counsel
attempted or asked to call Owens and was denied the opportunity to do so. Contrast State
v. Dewberry, 2d Dist. Montgomery No. 27434, 2020-Ohio-691, ¶ 82 (the trial court erred
in precluding defendant from calling the victim as a witness at the suppression hearing
on victim’s photospread identification of defendant). Owens testified at trial, but when
reviewing suppression rulings, we consider only the evidence before the trial court at the
suppression hearing; we cannot consider any evidence outside the record of the
suppression hearing. State v. Curley, 2016-Ohio-7624, 73 N.E.3d 1050, ¶ 19 (2d Dist.),
citing State v. Harris, 2d Dist. Montgomery No. 26810, 2016-Ohio-7097, ¶ 3.
{¶ 28} Detective Colvin’s evidence at the suppression hearing established that a
young man came to Owens’s residence during the noon hour on a Saturday. Owens
was alone in her home. Upon hearing the doorbell ring, Owens went to the door and
looked at the individual at her door, but did not recognize him and did not answer the
door. She then went to a bedroom window and observed him as he went to his car, got
into it, and “kind of wrestle[d] around” in the car. During this time, Owens was not under
the stress of an ongoing criminal offense. After getting up in response to a second
ringing of her doorbell, Owens encountered the man inside her house. She walked to
her kitchen with him, got money out of her purse, and handed it to him.
{¶ 29} Colvin’s testimony demonstrated that Owens had an opportunity to witness
the perpetrator prior to and during the offense; she was in close proximity to him when
she viewed him at her door and while in her house. Owens paid more than glancing
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attention to him, considering that she watched him go to the car and “wrestle around”
inside it. Owens gave a detailed description – “black male, 20-ish” years old, “six-foot,
170 [pounds,] short dreadlocks,” and neatly dressed. She provided similar descriptions
to the responding patrol officers and, two days later, to Detective Colvin. Owens was
confident in her identification, although that factor perhaps should be given less weight.
All of these factors support a conclusion that Owens’s identification of Green was reliable
despite the suggestiveness of the single photograph.
{¶ 30} Owens did not know Green and had not seen him before. In addition, 16
days elapsed between the burglary and the show-up identification. While these factors
may weigh against the reliability of Owens’s identification, they did not require a
conclusion that the identification was unreliable. See State v. Montgomery, 2d Dist.
Montgomery No. 25277, 2013-Ohio-4509, ¶ 35 (photospread identification after 11-day
delay was reliable); State v. Davis, 8th Dist. Cuyahoga No. 101502, 2015-Ohio-1144,
¶ 25 (show-up identification approximately one month after robbery was reliable); State
v. Henderson, 2d Dist. Montgomery No. 9229, 1986 WL 2361, *2 (Feb. 21, 1986) (victim’s
identification of defendant at a preliminary hearing almost three months after the offense
was reliable). Under the totality of the circumstances, the trial court did not abuse its
discretion in denying Green’s motion to suppress Owens’s pretrial identification.
{¶ 31} The first assignment of error is overruled.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 32} In his second assignment of error, Green claims that his conviction for
aggravated burglary was based on insufficient evidence and against the manifest weight
of the evidence. Specifically, he argues that the evidence did not support the
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conclusions that he was the perpetrator and/or that the perpetrator “inflicted, or attempted
to inflict, physical harm on Owens.”
{¶ 33} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St. 3d 380, 386, 678
N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after
viewing the evidence in a light most favorable to the State, could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio
St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal
unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”
Id.
{¶ 34} In contrast, when reviewing an argument challenging the weight of the
evidence, an appellate court may not substitute its view for that of the trier of fact, but
reviews the entire record, weighs the evidence and all reasonable inferences, considers
the credibility of witnesses, and determines whether, in resolving conflicts in the evidence,
the finder of fact clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. Thompkins at 387, quoting
State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 35} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). The fact that the evidence is subject to different
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interpretations does not render the conviction against the manifest weight of the evidence.
Wilson at ¶ 14. A judgment of conviction should be reversed as being against the
manifest weight of the evidence only in exceptional circumstances. Martin at 175.
{¶ 36} The State presented five witnesses and several exhibits at trial; Green did
not present any evidence.
{¶ 37} Owens was 72 years old when the trial occurred. She testified that, shortly
after noon on Saturday, November 17, 2018, she was alone at her three-bedroom, ranch-
style home in Huber Heights. The house was situated along the circle of a cul-de-sac in
a residential area.
{¶ 38} Owens testified that she was a fan of The Ohio State University football
team, and she was watching them play Maryland; she recalled that Ohio State was
playing poorly and she had muted the television. During the game, Owens’s doorbell
rang. Owens got up to see who was at the door. She stated that she had a long foyer
and an opaque door, so she could see out, but people could not see in. From the end
of her foyer, Owens saw that a young man was standing at the door; she stood there
watching him for several seconds. Owens described him as nice-looking with short
dreadlocks and a goatee. Owens assumed that he was trying to sell something, and she
decided not to answer the door.
{¶ 39} Owens returned to her living room to continue watching the football game.
After she had been seated for a few seconds, her doorbell rang four or five times in rapid
succession. Owens was not interested in answering the door, but she went to her
computer room (a bedroom in the front of her home) that looked out toward the street.
Owens saw the young man run back to his car, which was parked across the street, get
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inside, and start “throwing clothes around.” Owens testified that her view was not
obstructed by trees or bushes. Owens thought he was getting ready to leave, so she
went back to sit on her living room couch.
{¶ 40} After Owens sat down, her doorbell rang again. Owens went back to the
bedroom/computer room to look out. The man’s vehicle was still there, but she did not
see him. Owens thought he might have gone to a neighbor’s home. Owens headed
back to her living room.
{¶ 41} Upon leaving her computer room, she found the young man, later identified
as Green, standing right in front of her, about a foot away. Owens asked him, “How the
hell did you get into my house?” Green did not answer her, but “held up his fist in
[Owens’s] face and asked [her] if [she] had any money.” Owens testified that she
interpreted Green’s raised fist as a legitimate threat, and she said she did. Green asked
where the money was, and Owens told him it was in her purse, which was in the kitchen.
Green told her to get it, and he followed Owens to her kitchen. Owens asked Green not
to hurt her. With Green watching, Owens retrieved between $40 and $50 from her wallet.
{¶ 42} Owens testified that she did not know Green prior to the burglary, she did
not give him permission to be in her home, she did not give him permission to take money
from her wallet, and she gave him the money because she was afraid. Owens stated
that she was afraid because he had threatened her with his fist.
{¶ 43} After getting the money, Green told Owens to go into her back bedroom.
Green followed Owens to the bedroom, again raising his fist. Owens repeatedly asked
Green not to hurt her. Green opened the bedroom door, Owens went in, and Green
pulled the door closed. Green told her not to come out for ten minutes. Owens
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immediately locked the door. When she heard her front door close, she ran to her phone,
and when she was calm enough to do so, she called 911.
{¶ 44} At 12:38 p.m., officers were dispatched to Owens’s home. Officer Aaron
Harlow, the first to respond, arrived a couple minutes later. Upon arrival, Harlow walked
around the exterior of Owens’s home to ensure that the perpetrator or an accomplice was
no longer there; Harlow did not find anyone. He noticed, however, that a window along
the north side of the home was open and that the blinds were “out of whack.”
{¶ 45} Officer Stose also responded to Owens’s home, arriving shortly after Officer
Harlow. Stose made contact with Owens, who was crying, shaking, and “hysterical.”
The two officers went into Owens’s home and obtained a description of the perpetrator
and his vehicle. Officer Harlow testified that Owens described the perpetrator as male,
younger, about six feet tall, having three-inch-long dreadlocks, and good-looking.
Harlow stated that Owens could not describe the perpetrator’s clothing, other than the
fact that he was wearing a long-sleeved shirt. Owens told the officers that the man made
no attempt to wear a mask or cover his face or wear gloves. Owens described the
vehicle as “either a gray or light bluish, gray-colored four-door sedan.”
{¶ 46} Officer Harlow requested that an evidence technician come to the
residence. Officer Hartman responded.2 After taking photographs of the scene, he
attempted to lift fingerprints from around the bedroom window identified as the point of
entry; Hartman could not locate any usable latent prints. Officer Hartman swabbed for
DNA from the doorknob to the bedroom where Green told Owens to wait. Hartman did
not attempt to collect a fingerprint or DNA from the doorbell.
2 Hartman retired from the Huber Heights Police Department prior to trial.
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{¶ 47} Detective Colvin was assigned to Owens’s case, and he called her on
Monday, November 19, 2018, to follow up. Owens described the events and the
perpetrator consistently with her prior report.
{¶ 48} Detective Colvin testified that he did not have any suspects at that time.
He indicated two daytime burglaries previously had occurred in Huber Heights, and Colvin
reached out to other police agencies to see if they had similar crimes being committed.
On November 29, Detective Statzer of the Montgomery County Sheriff’s Office, who
worked in Harrison Township, provided Colvin’s sergeant with two photographs: one of a
person who matched Owens’s description of the perpetrator and the other of a silver
Honda Accord. The sergeant forwarded the photos to Colvin. Colvin still did not know
the identity of the individual shown. Colvin spent a couple of days looking through Honda
Accord vehicle records trying to match the vehicle with a registered owner who looked
like the photo. He was unsuccessful.
{¶ 49} Colvin testified that he needed to get a DNA sample from Owens so that he
could submit the DNA from the doorknob to the Bureau of Criminal Investigation crime
lab. He went to Owens’s residence on December 3 to do so. Colvin also took with him
copies of the two photographs that he had received; he wanted some confirmation that
the individual was involved before having the photo posted on the department’s Facebook
page to see if anyone could identify him.
{¶ 50} After collecting a DNA sample from Owens, Detective Colvin presented her
with photocopies of two photographs. Colvin testified that he did not tell Owens about
the suspect or how the photos had been obtained. Colvin showed Owens the photo of
the car first and then the photo of the individual. He stated that she identified them both
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as being the perpetrator and his vehicle. Colvin stated that Owens became emotional
when she saw Green’s photo.
{¶ 51} Owens testified that Colvin “came to my home, and he said he had a couple
pictures he wanted to show me to see if I recognized the individual that robbed me. And
as soon as I saw him, I recognized both the Defendant and the car.” Owens denied that
the detective asked her to confirm that the photograph showed the perpetrator.
However, Owens stated on cross-examination that she assumed that he was going to
show her photos of the person “who robbed me.” Owens signed and dated the print-
outs.
{¶ 52} When shown copies of the photographs at trial, Owens stated, “This is the
guy that robbed me and that’s his car.” Owens also identified Green at trial, noting that
he had gotten a haircut; she said she was 100 percent certain that he was the individual
who was in her home on November 17, 2018. On cross-examination, Owens
acknowledged that she may have previously testified at the preliminary hearing that the
car was a two-door vehicle; the photo showed a four door vehicle. Owens stated that
she was focusing on the person more than the car.
{¶ 53} The photograph of Green was placed on the Huber Heights Police
Department Facebook page. On December 4, Detective Minnix of the Vandalia Police
Department contacted Colvin and provided Colvin with Green’s name. Colvin then
learned Green’s address, and he went to that location with several other officers. The
silver Honda Accord was parked behind the apartment building.
{¶ 54} Detective Colvin obtained a search warrant for the Honda Accord, and he
learned that the vehicle was owned by Dounisha Barwick-Jones. Barwick-Jones testified
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that she had known Green since she was 12 years old, and she identified him as the
defendant at trial. She testified that, in November 2018, she owned a 2001 silver Honda
Accord, which she allowed Green to drive regularly; a different vehicle was her primary
vehicle. Barwick-Jones stated that the Honda had some damage.
{¶ 55} On December 5 or 6, Detective Colvin contacted Barwick-Jones and met
her at her house. Barwick-Jones testified that Colvin explained that he had seen her car
at a location and he wanted her to indicate if it was hers. Detective Colvin showed
Barwick-Jones copies of the same photos that he had shown Owens. Barwick-Jones
testified that one photo was of Green and that other “looked like” her Honda Accord;
Barwick-Jones acknowledged that she told Colvin that the photo was of her car.
{¶ 56} On cross-examination, Barwick-Jones testified that Green had spent the
night (November 16 to 17) with her and stayed with her until he drove her to work on
November 17. Barwick-Jones stated that she went to work around 1:00 or 2:00 p.m.
Barwick-Jones testified that she and Green did not go to Owens’s address and that the
Honda was with her (Barwick-Jones) between 12:30 and 1:00 p.m. on November 17.
{¶ 57} On redirect examination, Barwick-Jones stated that she did not “remember
days,” and she could not say what happened on November 16, 18, 19, or 20. Barwick-
Jones said that she “had a whole bunch of things going on personally with my life.” She
said that she remembered November 17, because Green mostly stayed over at her house
(either there or at his older brother’s house). When asked about her work schedule,
Barwick-Jones stated that she worked almost every day.
{¶ 58} Detective Colvin testified that Barwick-Jones never told him that she was
with Green on November 17.
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{¶ 59} Owens testified that she reported to Detective Colvin that after the incident
with Green, another person, purportedly from Panera Bread, had come to her home
unexpectedly. Colvin testified that he followed up on Owens’s report; he learned from a
Panera Bread manager that the restaurant had an address listed incorrectly and the order
was for a neighbor. The detective stated that the incident with the Panera driver was
unrelated to the burglary.
{¶ 60} The jury found Green guilty of aggravated burglary, in violation of R.C.
2911.11(A)(1), a first-degree felony. That statute provides:
(A) No person, by force, stealth, or deception, shall trespass in an occupied
structure or in a separately secured or separately occupied portion of an
occupied structure, when another person other than an accomplice of the
offender is present, with purpose to commit in the structure or in the
separately secured or separately occupied portion of the structure any
criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on
another[.]
{¶ 61} Green does not dispute that the perpetrator, by force, trespassed in
Owens’s occupied residence while Owens was present. We agree that the evidence
supports such a conclusion. Green argues that he was not perpetrator and that he did
not inflict or attempt to inflict physical harm.
{¶ 62} Green is correct that the State did not present evidence that he harmed or
attempted to harm Owens. However, R.C. 2911.11(A)(1) also may be violated by threats
of physical harm. In this case, Green raised his fist when he asked Owens if she had
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money, and he again raised his fist in the kitchen when he told her to go into the bedroom.
Owens testified that she interpreted Green’s raised fist as a “legitimate threat,” that she
was afraid, and that she repeatedly asked him not to hurt her. Owens’s testimony
supported a reasonable conclusion that Green threatened Owens with physical harm.
{¶ 63} As for the identity of the perpetrator, Owens identified Green as the burglar,
both prior to and at trial. Owens and Detective Colvin both testified that Colvin had gone
to Owens’s home on December 3, 2018, at which time Colvin showed Owens
photographs of an individual and a Honda Accord; the detective noted at trial that the
photograph of the man “matched the description of our suspect down to the height,
weight, the body type, the length of the dreadlocks, the facial hair.” Owens identified the
man in the photograph as the perpetrator and the Honda Accord as his vehicle. Barwick-
Jones testified that Green was the person depicted in the photograph. Owens also
identified Green as the perpetrator at trial, noting that he had gotten a haircut. The
State’s evidence, if believed, was sufficient to prove that Green was the individual who
committed the aggravated burglary.
{¶ 64} In reaching its verdict, the jury was free to believe all, part, or none of the
testimony of each witness and to draw reasonable inferences from the evidence
presented. State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28. The
State’s evidence, particularly Owens’s testimony, supported a conclusion that Green, by
force, entered Owens’s home through a window, threatened her with physical harm, and
stole money. However, the jury heard that Owens identified Green as the perpetrator,
16 days after the offense, based on a single photograph of a suspect and a single
photograph of a vehicle. Barwick-Jones testified that Green was with her (and not at
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Owens’s home) on November 17 when the offense occurred. However, the prosecutor
challenged the credibility of that testimony during cross-examination.
{¶ 65} It was the province of the jury, as the trier of fact, to weigh the evidence and
determine whether the State had proven, beyond a reasonable doubt, that Green had
committed aggravated burglary. Upon review of the evidence at trial, we cannot
conclude that jury lost its way when it credited Owens’s testimony and found Green guilty
of the aggravated burglary.
{¶ 66} Green’s second assignment of error is overruled.
III. Other Acts Evidence
{¶ 67} In his third assignment of error, Green claims that he “was denied a right to
a fair trial because the trial court erred in allowing other acts evidence to be introduced
by Detective Colvin.”
{¶ 68} As recently stated by the Ohio Supreme Court:
“A hallmark of the American criminal justice system is the principle
that proof that the accused committed a crime other than the one for which
he is on trial is not admissible when its sole purpose is to show the
accused’s propensity or inclination to commit crime.” That philosophy is
premised on our understanding of human nature: the typical juror is prone
to “much more readily believe that a person is guilty of the crime charged if
it is proved to his satisfaction that the defendant has committed a similar
crime.”
This common-law principle is embodied in Evid.R. 404(B).
(Citations omitted.) State v. Hartman, Ohio Slip Opinion No. 2020-Ohio-4440, __ N.E.3d
-23-
__, ¶ 20-21.
{¶ 69} Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” The Ohio Supreme Court has discussed Evid.R. 404, stating:
[Evid.R. 404] contemplates acts that may or may not be similar to the crime
at issue. If the other act is offered for some relevant purpose other than to
show character and propensity to commit crime, such as one of the
purposes in the listing, the other act may be admissible. Another
consideration permitting the admission of certain other-acts evidence is
whether the other acts “form part of the immediate background of the
alleged act which forms the foundation of the crime charged in the
indictment” and are “inextricably related” to the crime.
(Citations omitted.) State v. Morris, 132 Ohio St. 3d 337, 2012-Ohio-2407, 972 N.E.2d
528, ¶ 13.
{¶ 70} “The key is that the evidence must prove something other than the
defendant’s disposition to commit certain acts. Thus, while evidence showing the
defendant’s character or propensity to commit crimes or acts is forbidden, evidence of
other acts is admissible when the evidence is probative of a separate, nonpropensity-
based issue.” Hartman at ¶ 22.
{¶ 71} The Ohio Supreme Court recently clarified the process for determining
whether to admit other-acts evidence. The first step is to consider whether the other acts
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evidence is relevant. “In the Evid.R. 404(B) context, the relevance examination asks
whether the proffered evidence is relevant to the particular purpose for which it is offered,
as well as whether it is relevant to an issue that is actually in dispute.” State v. Smith,
Ohio Slip Opinion No. 2020-Ohio-4441, __ N.E.3d __, ¶ 37, citing Hartman at ¶ 26-27.
“Thus, courts should begin by evaluating whether the evidence is relevant to a non-
character-based issue that is material to the case.” Id. at ¶ 38. “If the evidence is not
premised on improper character inferences and is probative of an issue in the case, the
court must then consider whether the evidence’s value ‘is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues, or of misleading the jury.’ ” Id.,
quoting Evid.R. 403(A); Hartman at ¶ 29.
{¶ 72} A trial court has broad discretion to admit or exclude evidence, and its
exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.
State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 14. “A trial court
abuses its discretion when it makes a decision that is unreasonable, unconscionable, or
arbitrary.” State v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
{¶ 73} A week before trial, the State filed a motion of intent to use other acts
evidence. The State’s motion described the burglary of Owens’s home and provided the
following information about other relevant acts:
* * * On November 26th, 2018, Kathleen Leonard contacted the
Montgomery County Sheriff’s Office when she noticed a young African-
American male enter her property. The male seemed to tamper with the
garage door. Ms. Leonard photographed both the suspect, and the car that
he was driving. She provided those photographs to Detective Bryan
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Statzer of the Sheriff’s Office. Detective Statzer then provided the
photographs to Huber Heights Police. Those photographs are shown to
Ms. Owens, who identifies the person in the photographs as the man who
broke into her home. Those photographs are then disseminated on the
Huber Heights Police Facebook page. Huber Heights receives a call from
Whitney King in Tipp City who indicates that same person in the photograph
had rang [sic] her doorbell a few days prior. John King then contacts
Detective Colvin and informs him that he also found a grey/silver sedan
parked up the front from when his doorbell was rung. The suspect remains
unnamed until Detective Minnix of the Vandalia Police Department obtains
the name of Tajrae Green (Defendant) after he learns that some jewelry
taken in a Vandalia burglary had been pawned by Defendant. Detective
Minnix compared a photograph of Tajrae Green to the photographs taken
by Ms. Leonard. Detective Colvin then finds a silver/grey Honda parked at
Defendant’s residence.
{¶ 74} The trial court granted the State’s motion to offer Evid.R. 404(B) evidence.
Using the three-step analysis set forth in State v. Williams, 134 Ohio St. 3d 521, 2012-
Ohio-5695, 983 N.E.2d 1278, the trial court concluded that the evidence that Green rang
other doorbells was relevant to show his modus operandi, “that the evidence of Green’s
acts in relation to arriving at and gaining entrance to residences” was being presented for
a legitimate purpose under Evid.R. 404(B), and that the probative value was not
outweighed by the danger of unfair prejudice to Green.
{¶ 75} At trial, the State’s witnesses consisted of Owens, two officers who
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responded to her home, Barwick-Jones, and Detective Colvin. The State did not call
officers from other jurisdictions or victims of other offenses. The State acknowledges in
its appellate brief that, although its pretrial motion indicated an intention to show that
Green “had a modus operandi of driving the silver sedan into neighborhoods and ringing
doorbells, that evidence was not introduced at trial.”
{¶ 76} The “other acts” evidence at trial revolved around the suggestion that Green
was involved in other burglaries. During opening statements, the prosecutor informed
the jury, without objection, that Colvin “received some photographs from a detective with
the Harrison Township Police Department. And these photographs match the vehicle
description given by Ms. Owens, and the suspect description given by Ms. Owens.” At
that time, the prosecutor did not describe how Colvin came to associate Green’s name
with the photographs.
{¶ 77} During the State’s case-in-chief, Owens testified that Detective Colvin told
her that the photos “had been obtained from another place that had a camera ringtone.”
Owens did not mention that the photographs came from another law enforcement agency
or the victim of another crime. Nevertheless, the trial court gave the following limiting
instruction:
Ladies and gentlemen, you just heard some evidence that Det. Colvin
received information about other calls to law enforcement. Such evidence
has been admitted only for a limited purpose, and was not received, and
you may not consider it to prove that the Defendant committed any other
crimes. The evidence cannot be considered for any other purpose.
(Tr. at 237.)
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{¶ 78} The “other acts” evidence predominantly came in through Detective Colvin.
After Detective Colvin testified that he initially did not have any suspects in the burglary
of Owens’s home, the prosecutor asked him what he does to develop suspects. Colvin
responded:
Well, I spoke with Ms. Owens. I questioned her about any unusual
incidents that may have happened, any people that may have been in the
house or been at the house; that sort of thing. Also, I will reach out to other
agencies to see if they have like and similar crimes being committed.
We had previously, before that case, had at least two daytime
burglaries similar -- with no one home, but daytime burglaries. I reached
out to other agencies, and was also told that there were other incidents
similar.
(Tr. 300-301.)
{¶ 79} Colvin later testified that his sergeant received photos from Detective
Statzer of the Montgomery County Sheriff’s Office. When the prosecutor tried to ask
about the circumstances surrounding how the photos were taken, defense counsel
objected on hearsay grounds. After a sidebar discussion, the objection was sustained.
The prosecutor then limited her questioning to:
Q Det. Colvin, without getting into the specific details of this other report
out of Harrison Township, you obtained these photographs from a detective
with Harrison Township?
A My sergeant did, yes.
Q Okay. And then your sergeant provided –
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A Transferred –
Q -- these photographs –
A -- them to me, yes.
Q -- to you?
(Tr. at 307.) The trial court again gave the jury that same limiting instruction that had
been given during Owens’s testimony.
{¶ 80} Colvin then testified that, after Owens made the photo identification, the
photograph of Green (whose identity was still unknown) was placed on the Huber Heights
Police Department’s Facebook page. When Colvin testified that he received a call from
Detective Minnix, defense counsel objected. After discussion, the court sustained the
objection, stating “As is indicated, what the detective said, which I will not permit, so I
would sustain the objection stating the detective told him, but we’re not there yet. He
can talk about what he did as a result of the call.” (Tr. at 314.)
{¶ 81} Detective Colvin then provided an answer to the prosecutor’s prior question:
“Det. Minnix did an investigation, had identified the Defendant and an address where he
was staying –.” The court again indicated that it had sustained the objection and that the
detective was getting into the details of the communication. After a sidebar discussion
about how the prosecutor should elicit the information about how Colvin received Green’s
name, the trial then proceeded as follows:
THE COURT: Okay. Detective, I sustained the objection. She’s going to
– [The prosecutor’s] going to rephrase the question. So ladies and
gentlemen, again, when I sustain an objection, you are not to consider the
answer for any purpose. Okay. Go ahead.
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[PROSECUTOR]: Okay.
[BY PROSECUTOR]
Q And did Det. Minnix of the Vandalia Police, did he provide you with the
name of Tajrae Green?
A He did.
(Tr. at 317-318.)
{¶ 82} During cross-examination, defense counsel questioned Detective Colvin
about what preliminary instructions, if any, had been provided to Owens before the
photographs of Green and his vehicle were shown to her. During that questioning, the
following exchange occurred:
Q Now you have training in showing photospreads and identification
photos to witnesses, correct?
A Yes.
Q And I think you testified about instructions that are given to individuals
when photos are shown, correct?
A Correct.
Q And what are those instructions?
A View the photographs; hairstyles, beards, and mustaches may easily be
changed. Don’t -- the pictures don’t always depict the true complexion of
a person; that sort of thing.
Q And in fact, you tell the person that the person that is a suspect or was
in your house, may or may not be depicted in the photograph?
A Correct.
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Q Did you tell Ms. Owens that?
A No, I told her that I had some photographs I wanted her to view. I may
-- I believe I may have even said that that it may or may not be the person.
At that point, the physical description matched. And like you said, there
may be a thousand people with the same description out there. Okay?
But connected with the vehicle, it was a good possibility that was our
suspect who was committing all these daytime burglaries. In order --
[DEFENSE COUNSEL]: Your Honor, I’m going to object.
May counsel approach?
THE COURT: I sustain the objection.
The reference to the other daytime burglaries will be stricken and you will
disregard that. You will not consider that.
(Emphasis added.) (Tr. at 330-331.)
{¶ 83} The record clearly shows that the trial court did not allow improper other
acts evidence. The trial court sustained defense counsel’s objections to references that
Green may have been associated with other daytime burglaries in the area, and it gave
the jury instructions to disregard that testimony. The court also gave limiting instructions
regarding the evidence that Detective Colvin had received information about other calls
to law enforcement.
{¶ 84} The State asserts that Detective Colvin’s admitted testimony properly was
limited to how the detective obtained the photographs and how he learned of Green’s
identity. The State notes that law enforcement officers may testify to out-of-court
statements for the non-hearsay purpose of explaining the next investigatory step. State
-31-
v. Beasley, 153 Ohio St. 3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 172, citing State v.
McKelton, 148 Ohio St. 3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 186. Testimony to
explain police conduct is admissible as non-hearsay if it satisfies three criteria: (1) the
conduct to be explained is relevant, equivocal, and contemporaneous with the
statements, (2) the probative value of the statements is not substantially outweighed by
the danger of unfair prejudice, and (3) the statements do not connect the accused with
the crime charged. Id.; State v. Ricks, 136 Ohio St. 3d 356, 2013-Ohio-3712, 995 N.E.2d
1181, ¶ 27.
{¶ 85} We recognize that police officers often are permitted to testify about how
they obtained a lead in their investigations. In this case, we question the relevance of
the source of the photographs of Green and of the source of the identity of Green from
the photograph (i.e., law enforcement agencies). Moreover, although Detective Colvin’s
statements that he received the two photographs from Detective Statzer and that he
learned of Green’s name from Detective Minnix were received for the non-hearsay
purpose of explaining steps in Colvin’s investigation, there is a strong argument that the
probative value of that information was substantially outweighed by the danger of unfair
prejudice, particularly given that State’s case hinged in large part on jury’s evaluation of
Owens’s identification of Green.
{¶ 86} The State further emphasizes, however, that the court gave appropriate
instructions regarding the detective’s statements. When evidence which is admissible
as to one party or for one purpose, but not admissible as to another party or for another
purpose, is admitted, the court, upon request of a party, must give a limiting instruction,
restricting the evidence to its proper scope. See Evid.R. 105. Curative instructions are
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given as a means of remedying errors or irregularities that occur during trial. State v.
Artis, 2019-Ohio-2070, 137 N.E.3d 587, ¶ 50 (3d Dist.).
{¶ 87} We generally presume that a jury will follow the trial court’s limiting
instructions concerning the evidence that may be considered and for what purpose, as
well as curative instructions to disregard testimony. E.g., State v. Ahmed, 103 Ohio
St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 93; State v. Herring, 94 Ohio St. 3d 246,
254, 762 N.E.2d 940 (2002); State v. Bendolph, 2018-Ohio-1729, 111 N.E.3d 872, ¶ 51
(2d Dist.). “The presumption that curative instructions remedy a mistake * * * can be
rebutted by showing that the evidence could not have been ignored and that serious
prejudice likely occurred.” State v. McMiller, 8th Dist. Cuyahoga No. 103962, 2016-Ohio-
5844, ¶ 48, citing United States v. Gonzales-Vazquez, 219 F.3d 37, 48 (1st Cir.2000).
{¶ 88} Here, the court twice provided a limiting instruction during the presentation
of witnesses, telling the jury not to consider Detective Colvin’s statements to prove that
Green committed other crimes. In its jury instructions following closing arguments, the
court slightly modified that instruction to read that the jury should not consider the
information “to prove that the Defendant committed any crimes.” (Emphasis added.)
(The prior instruction had said “any other” crimes.) With the record before us, we
presume that the jury followed the trial court’s limiting instructions. We note that the Ohio
Supreme Court recently advised trial courts, going forward, to “explain, in plain language,
the purposes for which the other acts may and may not be considered.” Hartman, Ohio
Slip Opinion No. 2020-Ohio-4440, __ N.E.3d __, ¶ 70.
{¶ 89} Of primary concern is Detective Colvin’s testimony that he reached out to
other law enforcement organizations “to see if they have like and similar crimes being
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committed,” and that given Owens’s physical description of the perpetrator of her burglary
plus the vehicle, “it was a good possibility that [the photograph of Green] was our suspect
who was committing all these daytime burglaries.” The only apparent purpose for this
information was to instill in the mind of the jury that Green had committed other burglaries,
making it more likely that he had burglarized Owens’s home, too.
{¶ 90} The only evidence against Green in this case was Owens’s identification.
There were no other eyewitnesses, no surveillance videos, no fingerprint or DNA
evidence, or any other evidence linking Green to the offense. The State presented no
evidence that Green had a particular modus operandi and that his method of committing
the burglary of Owens’s home was consistent with a particular methodology. In the
absence of any evidence corroborating Owens’s identification, Detective Colvin’s
statement that it was likely that Green was the person “committing all these daytime
burglaries” created a risk that the jury would give additional credence to Owens’s
identification based on Colvin’s comments.
{¶ 91} The court instructed the jury to disregard these statements. As stated
above, we generally presume that the jury follows the trial court’s curative instructions.
In addition, on the record before us, we cannot conclude that the presumption regarding
curative instructions has been overcome. The detective’s statements were not so
inflammatory that they could not be ignored. Contrast State v. Sinkfield, 2d Dist.
Montgomery No. 16277, 1998 WL 677413 (Oct. 2, 1998) (detective’s statement that
defendant had previously tried to kill police officers was not cured by curative instruction).
{¶ 92} Green’s third assignment of error is overruled.
IV. Alibi Instruction
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{¶ 93} In his fourth assignment of error, Green claims that the trial court should
have given a jury instruction on alibi, sua sponte, even though Green did not file a notice
of alibi or request such an instruction.
{¶ 94} Crim.R. 12.1 requires a defendant to file a notice of alibi if he or she
proposes to offer alibi evidence. It states:
Whenever a defendant in a criminal case proposes to offer testimony to
establish an alibi on his behalf, he shall, not less than seven days before
trial, file and serve upon the prosecuting attorney a notice in writing of his
intention to claim alibi. The notice shall include specific information as to the
place at which the defendant claims to have been at the time of the alleged
offense. If the defendant fails to file such written notice, the court may
exclude evidence offered by the defendant for the purpose of proving such
alibi, unless the court determines that in the interest of justice such evidence
should be admitted.
{¶ 95} If a defendant fails to submit a notice of alibi, as required by Crim.R. 12.1,
the court can exclude the alibi evidence. See State v. Hillman, 2014-Ohio-5760, 26
N.E.3d 1236, ¶ 24 (10th Dist.). “Where a defendant files a timely notice of alibi, presents
evidence to support the contention, and relies on alibi as the sole defense, the trial court
has a statutory duty pursuant to R.C. 2945.11 to charge the jury on alibi, whether or not
defendant requests such an instruction.” State v. Gibson, 8th Dist. Cuyahoga No. 98725,
2013-Ohio-4372, ¶ 106, citing State v. Frost, 164 Ohio App. 3d 61, 2005-Ohio-5510, 841
N.E.2d 336 (2d Dist.) and State v. McDade, 2d Dist. Montgomery No. 14339, 1995 WL
9453, *1 (Jan. 11, 1995).
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{¶ 96} “Jury instructions are critically important to assist juries in determining the
interplay between the facts of the case before it and the applicable law.” State v. Griffin,
141 Ohio St. 3d 392, 2014-Ohio-4767, 24 N.E.3d 1147, ¶ 5. A trial court is required to
“fully and completely give the jury all instructions which are relevant and necessary for
the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen,
50 Ohio St. 3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. Requested
jury instructions “must be given when they are correct, pertinent, and timely presented.”
State v. Joy, 74 Ohio St. 3d 178, 181, 657 N.E.2d 503 (1995), citing Cincinnati v.
Epperson, 20 Ohio St. 2d 59, 253 N.E.2d 785 (1969), paragraph one of the syllabus.
{¶ 97} In this case, Crim.R. 12.1 has no applicability, because there is nothing in
the record to suggest that Green intended to raise an alibi defense at trial. The evidence
regarding alibi came from Barwick-Jones, a State’s witness, not from the defense.
{¶ 98} Green did not request an alibi instruction nor did he object to the trial court’s
failure to give an instruction on alibi. As a result, Green has waived all but plain error
regarding the jury instructions. State v. Grant, 2d Dist. Darke No. 2019-CA-13, 2020-
Ohio-3055, ¶ 14; see Crim.R. 30(A) (“On appeal, a party may not assign as error the
giving or the failure to give any instructions unless the party objects before the jury retires
to consider its verdict, stating specifically the matter objected to and the grounds of the
objection.”). In order to constitute plain error, the error must be an obvious defect in the
trial proceedings, and the error must have affected Green’s substantial rights. See State
v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22; Crim.R. 52(B). Plain
error should be noticed “with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St. 2d 91, 372
-36-
N.E.2d 804 (1978), paragraph three of the syllabus; State v. Singleton, 2d Dist.
Montgomery No. 26889, 2016-Ohio-5443, ¶ 45.
{¶ 99} We find no plain error in the trial court’s failure to provide, sua sponte, an
instruction on alibi. The parties’ arguments focused on Owens’s identifications of Green
and his vehicle. The prosecutor mentioned Barwick-Jones during closing argument only
as to Barwick-Jones’s testimony that the photo depicted Green; the State did not mention
Barwick-Jones in its rebuttal argument. In defense counsel’s closing argument, counsel
argued that Owens’s identifications of Green and the vehicle were weak and that the State
failed to present corroborating evidence that Green was the perpetrator. In a single
sentence, counsel stated, “Tajrae [Green] was not there,” but there was no mention of
Barwick-Jones or her alibi-related testimony. The parties’ arguments reflected that they
did not consider alibi to be a central component of the trial.
{¶ 100} Moreover, as noted by Eighth District, “[i]t is difficult to prove the existence
of plain error in the court’s failure to give a jury instruction on the alibi. An alibi defense
constitutes a complete denial of the charged offense, so it stands on its own against
whatever evidence the state produces. Because ‘[a] jury instruction on an alibi defense
is nothing more than a reminder that the defendant presented evidence of an alibi,’ a
guilty finding means that the jury necessarily would have rejected the defense.” State v.
Coleman, 8th Dist. Cuyahoga No. 99369, 2013-Ohio-4792, ¶ 15, quoting State v. Reddy,
10th Dist. Franklin No. 09AP-868, 2010-Ohio-3892, ¶ 23.
{¶ 101} The jury heard Barwick-Jones’s testimony that Green was with her and not
at Owens’s residence when the alleged aggravated burglary occurred. The jury also
heard Owens’s testimony identifying Green as the perpetrator. On this record, we
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cannot conclude that the failure to provide an instruction on alibi, sua sponte, resulted in
a manifest injustice.
{¶ 102} Green’s fourth assignment of error is overruled.
V. Cumulative Error
{¶ 103} In his fifth assignment of error, Green claims that cumulative errors
deprived him of a fair trial. Green argues that the trial court should have suppressed
Owens’s pretrial identification and that the detective’s testimony as to Green’s
involvement with other burglaries was prejudicial and deprived him of a fair trial.
{¶ 104} The cumulative error doctrine provides that a conviction may be reversed
“where the cumulative effect of errors in a trial deprives a defendant of the constitutional
right to a fair trial[,] even though each of numerous instances of trial court error does not
individually constitute cause for reversal.” State v. Garner, 74 Ohio St. 3d 49, 64, 656
N.E.2d 623 (1995); see State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-
8366, ¶ 129. In this case, the trial court did not err in denying Green’s motion to suppress
the pretrial identification. Although the detective made isolated statements alluding to
Green’s being a suspect in other burglaries, upon review of the record, we cannot
conclude that Green failed to receive a fair trial.
{¶ 105} Green’s fifth assignment of error is overruled.
VI. Sentencing
{¶ 106} In his sixth assignment of error, Green claims that the trial court did not
consider the appropriate sentencing factors in imposing a ten-year sentence. Green
notes that the trial court did not state that it had considered the purposes and principles
of sentencing under R.C. 2929.11, the seriousness and recidivism factors under R.C.
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2929.12, and the objective to use minimum sanctions to accomplish those purposes.
{¶ 107} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under
R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it
may vacate the sentence and remand for resentencing, only if it “clearly and convincingly”
finds either (1) that the record does not support certain specified findings or (2) that the
sentence imposed is contrary to law. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,
2017-Ohio-4097, ¶ 6.
{¶ 108} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App. 3d 500,
2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St. 3d
54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 109} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
of felony sentencing. Those purposes are “to protect the public from future crime by the
offender and others, to punish the offender, and to promote the effective rehabilitation of
the offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources.” R.C. 2929.11(A). The court must “consider the need for incapacitating the
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offender, deterring the offender and others from future crime, rehabilitating the offender,
and making restitution to the victim of the offense, the public, or both.” Id. R.C.
2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes of felony sentencing * * *,
commensurate with and not demeaning to the seriousness of the offender’s conduct and
its impact upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.”
{¶ 110} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s
conduct is more serious than conduct normally constituting the offense; R.C. 2929.12(C)
sets forth four factors indicating that an offender’s conduct is less serious than conduct
normally constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that
trial courts are to consider regarding the offender’s likelihood of committing future crimes.
Finally, R.C. 2929.12(F) requires the sentencing court to consider the offender’s military
service record, if any.
{¶ 111} At the beginning of the sentencing hearing, the court indicated that it had
reviewed the presentence investigation report, defense counsel’s and the State’s
sentencing memoranda, letters from Green and another individual, and the victim impact
statement. The court provided the prosecutor, defense counsel, Green, and Owens an
opportunity to speak; all opted to rely on their written statements. Although the court’s
10-year sentence was severe, the court’s sentence was within the statutory sentencing
range for a first-degree felony, and there is no indication in the record that the trial court
failed to consider the appropriate factors in sentencing. Accordingly, we presume that
the trial court followed the appropriate guidelines for sentencing. See State v. Ashe, 2d
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Dist. Montgomery No. 26528, 2016-Ohio-136, ¶ 44.
{¶ 112} Green’s sixth assignment of error is overruled.
VII. Conclusion
{¶ 113} The trial court’s judgment will be affirmed.
.............
TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
Lucas W. Wilder
Hon. Michael W. Krumholtz