State v. McCall , 2021 Ohio 1032 ( 2021 )

[Cite as State v. McCall, 2021-Ohio-1032.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-932
(C.P.C. No. 16CR-7124)
v. :
(REGULAR CALENDAR)
Jakobe R. McCall, :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 30, 2021
On brief: [Janet Grubb, First Assistant Prosecuting
Attorney], and Kimberly M. Bond, for appellee.
On brief: Siewert & Gjostein Co. LPA, and Thomas A.
Gjostein, for appellant. Argued: Thomas A. Gjostein.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Jakobe R. McCall, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of murder and tampering with
evidence. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} This case arises from the murder of Naika Brown on December 15, 2016. One
week after the murder, the Franklin County Grand Jury indicted McCall on two counts of
murder in violation of R.C. 2903.02, unspecified felonies, with a firearm specification as to
both counts, and one count of tampering with evidence in violation of R.C. 2921.12, a third-
degree felony. McCall initially pleaded guilty to the stipulated lesser-included offense of
voluntary manslaughter in violation of R.C. 2903.03, a third-degree felony, with a firearm
No. 18AP-932 2
specification, and the tampering with evidence count as charged. In April 2018, McCall
moved to withdraw his guilty plea. The trial court granted the motion, and the matter
proceeded to a jury trial in September 2018. As pertinent to this appeal, the following
evidence was adduced at trial.
{¶ 3} Columbus Police Officer Ryan McKee testified that he was the first to arrive
at the scene of Brown's murder, 2853 Citizens Place, Columbus, Ohio. Officer McKee found
Brown face down in the apartment hallway. Brown had blood coming from her head and
showed no sign of life. She was pronounced dead at the scene. Officer McKee and another
officer cleared the area to ensure the shooter was not still present. There was no sign of
forced entry at the apartment, and no firearm was recovered as part of the investigation.
{¶ 4} Kelby Ducat, a firearms expert employed at the Columbus Police Crime
Laboratory, testified regarding the operation of a semiautomatic pistol and the bullet
fragment recovered from Brown's body. Ducat testified that such a weapon is prepared for
firing by "racking" it. (Tr. Vol. 3 at 327.) Racking involves pulling back on the slide at the
top portion of the weapon, which sets the striker, and the slide's forward motion loads the
cartridge into the chamber. This action produces a metal on metal sound. The weapon will
then fire when force is applied to pull the trigger. Ducat identified the bullet fragment
recovered from the victim as a .40 caliber bullet fragment, and the rifling on the fragment
was consistent with being fired from a Smith & Wesson. A spent .40 caliber cartridge casing
was recovered at the scene of the shooting.
{¶ 5} John Daniels, M.D., a deputy coroner at the Franklin County Coroner's
Office, testified regarding the autopsy of Brown. Daniels did not conduct the autopsy, but
he reviewed the autopsy report and photographs of the deceased. He testified that Brown
was killed by a single gunshot to her forehead caused by another. He opined that the
characteristics of the stippling on her forehead indicated that the distance from the weapon
fired to her forehead was very short, likely between six and eight inches. While there was
cocaine in Brown's system at the time of her death, its presence did not contribute to her
death.
{¶ 6} Korey Jones, a daughter of Brown, testified to the following. In October 2016,
Jones purchased a .40 caliber Smith & Wesson handgun for protection. She kept the
firearm hidden in her closet because her mother, with whom she was residing with at the
No. 18AP-932 3
time, did not want any firearms in the apartment. Jones placed the handgun in a backpack
when she moved out of Brown's apartment, but she did not physically see it after she moved.
A few days before the murder, McCall, Jones' cousin, began to reside with Brown. Jones,
who then resided a few buildings away, was in an ongoing dispute with McCall regarding a
video game that belonged to McCall.
{¶ 7} Jones further testified that, at approximately 4:00 a.m. on December 15,
2016, McCall sent several threatening text messages to her, blaming her for taking the video
game and demanding its return. Also during the early hours of December 15, 2016, Jones
realized the firearm she had purchased was missing when she talked with her mother who
indicated she was "dealing with the gun" with McCall. (Tr. Vol. 2 at 140.) Jones told Brown
she was going to contact the police about the stolen firearm, which she did. After the
shooting, Jones visited McCall at the jail to find out what happened. McCall did not want
to talk about the shooting and cursed at Jones. At trial, Jones was presented with a
photograph, retrieved from McCall's phone, of McCall holding a handgun. Jones testified
that the handgun appeared to be the one she had purchased.
{¶ 8} Keondra Horace, Brown's niece, was at Brown's apartment at the time of the
shooting, and she testified as follows. She began living there in November 2016. At
approximately 2:30 a.m. on December 15, 2016, Horace and McCall returned to the
apartment after their work shifts. Horace arrived first, and Brown told her to let her know
when McCall arrived. By the time McCall arrived, however, Brown was in her room asleep.
Horace and McCall prepared food to eat, and McCall said he needed to retrieve a firearm in
case Brown woke and looked in his belongings. Horace saw McCall put a silver and black
handgun in his pocket. Horace previously had seen McCall with this firearm, and she
considered it to be both Jones' and McCall's weapon. After Horace and McCall finished
eating, Horace went into her room to lay down and McCall laid down on the living room
couch. Horace then heard Brown exit her room. She heard McCall blaming Jones and
Brown for the video game disappearing. Horace could hear the two moving from the living
room into the hallway in front of Horace's bedroom. No one else was at the apartment or
involved in the argument.
{¶ 9} According to Horace's testimony, at some point during the argument between
Brown and McCall, the firearm issue was raised. Brown told McCall to leave because he
No. 18AP-932 4
had the firearm, and she repeatedly told him she was going to call the police. Within
seconds, Horace heard the "distinctive" sound of a firearm being "racked," which she had
heard previously, and then quickly fired once. (Tr. Vol. 2 at 218.) About 30 seconds later,
McCall entered Horace's room with the firearm in his back pocket. McCall said, "I freaked
out. I freaked out. She said she was going to call the police on me. I freaked out." (Tr. Vol.
2 at 220.) McCall then put on additional layers of clothing, preparing to go outside. Horace
had her phone in one hand and McCall's phone in the other. She could not call 911 on her
phone, so she used McCall's phone to call his mother and tell her what had happened.
McCall then said, "Are you going to tell them it was me, or are you going to tell them
somebody else came in here?" (Tr. Vol. 2 at 222.) When they both left the apartment,
McCall went in one direction, and Horace ran in the opposite direction toward her father's
residence to call the police. Days later, after McCall's arrest, Horace went with Jones to the
jail to see McCall. Jones asked McCall, "Why did you do it?" and McCall replied, "You stole
my game; you stole my shit." (Tr. Vol. 2 at 229-30.)
{¶ 10} The jury found McCall guilty as charged. The murder counts merged for the
purpose of sentencing, and the state elected to have McCall sentenced on Count 1. The trial
court sentenced McCall to 15 years to life in prison for the murder conviction, with a
consecutive term of 3 years for the firearm specification. The trial court also imposed a
sentence of 12 months in prison for the tampering with evidence conviction, to be served
concurrently with the murder conviction sentence.
{¶ 11} McCall timely appeals.
II. Assignments of Error
{¶ 12} McCall assigns the following errors for our review:
[1.] The appellant had his rights to due process of law violated
under Article I, Section 10 of the Ohio Constitution and the
Sixth Amendment of the United States Constitution, when trial
counsel was rendered ineffective for failing to make the proper
motion for a Rule 29 acquittal and for not moving in limine
against appellant's statements.
[2.] Appellant's conviction[s] [were] not supported by the
sufficiency of the evidence in violation of the due process clause
of the Fourteenth Amendment to the U.S. Constitution and
Article I, Sections 1 & 16 of the Ohio Constitution and the
No. 18AP-932 5
conviction[s] [were] also against the manifest weight of the
evidence.
III. Discussion
{¶ 13} Because they involve related issues, we analyze together McCall's first and
second assignments of error. In his first assignment of error, McCall alleges he was denied
effective assistance of trial counsel. His second assignment of error contends his
convictions were not supported by sufficient evidence and were against the manifest weight
of the evidence. Both assignments of error lack merit.
{¶ 14} In order to prevail on a claim of ineffective assistance of counsel, McCall must
satisfy a two-prong test. First, he must demonstrate that his counsel's performance was
deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong requires
McCall to show that his counsel committed errors which were "so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. If
McCall can so demonstrate, he must then establish that he was prejudiced by the deficient
performance. Id. To show prejudice, McCall must establish there is a reasonable
probability that, but for his counsel's errors, the result of the trial would have been different.
A "reasonable probability" is one sufficient to undermine confidence in the outcome of the
trial. Id. at 694.
{¶ 15} In considering claims of ineffective assistance of counsel, courts indulge in a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101.
McCall contends his trial counsel was ineffective in (1) not filing a motion in limine to
exclude testimony regarding certain statements he made immediately after Brown's
murder and later during a jail visit with Keondra Horace and Korey Jones; and (2) not
moving for an acquittal under Crim.R. 29 once the state rested.
{¶ 16} McCall argues his trial counsel should have filed a motion in limine to exclude
testimony regarding his statements pursuant to Evid.R. 403(A) and (B). These statements
include McCall telling Horace that he "freaked out" because Brown was going to call the
police, McCall asking Horace if she was going to identify him or someone else as the
shooter, and McCall informing Jones that he shot Brown because his video game had been
taken. A decision not to file a motion in limine cannot be considered ineffective under the
No. 18AP-932 6
Strickland test because the issue still must be raised and decided at trial. State v. Valentine,
10th Dist. No. 14AP-893, 2016-Ohio-277, ¶ 22, fn. 2. "As a pretrial, preliminary,
anticipatory ruling, finality does not attach when a motion in limine is decided." Id., citing
Columbus v. Zimmerman, 10th Dist. No. 14AP-963, 2015-Ohio-3488, ¶ 9, citing State v.
Simpson, 5th Dist. No. 06 CA 27, 2007-Ohio-1959, ¶ 15. Thus, we are unpersuaded that
McCall's trial counsel was ineffective in not filing a motion in limine concerning his pretrial
statements.
{¶ 17} Moreover, even insofar as McCall argues his counsel should have objected at
trial to the testimony regarding his statements, this argument is unpersuasive. According
to McCall, any probative value of the testimony was substantially outweighed by its
tendency to cause undue prejudice and to mislead the jury. He also asserts the testimony
regarding his statements at the jail to Jones and Horace were unduly prejudicial and
cumulative. But he does not explain why the testimony was unduly prejudicial, misleading,
or cumulative, other than to argue the harmful effect of the jury knowing he was in jail after
the shooting. In support of this contention, McCall cites Estelle v. Williams, 425 U.S. 501,
504 (1976), wherein the court held that "an accused should not be compelled to go to trial
in prison or jail clothing because of the possible impairment of the presumption so basic to
the adversary system." The extension of this holding to the case at bar is not warranted.
The Supreme Court of Ohio has noted that "it is self-evident" that a defendant on trial for
murder has "been arrested. Evidence about a defendant's arrest and ensuing custody does
not contravene the presumption of innocence." State v. Williams, 99 Ohio St.3d 439, 2003-
Ohio-4164, ¶ 75. Thus, the passing references to McCall being in jail after the shooting, in
the context of witnesses explaining his response to their inquiry regarding the shooting,
were not unduly prejudicial. See State v. Hodge, 10th Dist. No. 18AP-95, 2019-Ohio-4012,
¶ 47 ("stray remarks related to a defendant's pretrial detention" found not unduly
prejudicial). Thus, McCall fails to demonstrate his trial counsel was deficient as to the
admission of testimony concerning his incriminating statements.
{¶ 18} Nor was McCall's trial counsel deficient in not moving for an acquittal under
Crim.R. 29. "Defense counsel's failure to make a Crim.R. 29 motion for acquittal is not
ineffective assistance of counsel where such a motion would have been futile." State v.
Wallace, 10th Dist. No. 08AP-2, 2008-Ohio-5260, ¶ 63. Pursuant to Crim.R. 29, "[t]he
No. 18AP-932 7
court on motion of a defendant or on its own motion, after the evidence on either side is
closed, shall order the entry of a judgment of acquittal of one or more offenses charged in
the indictment, information, or complaint, if the evidence is insufficient to sustain a
conviction of such offense or offenses." This means the trial court may grant a Crim.R. 29
motion only where, construing the evidence most strongly in the state's favor, the evidence
is insufficient to sustain a conviction. Wallace at ¶ 63, citing State v. Jenks, 61 Ohio St.3d
259 (1991). Thus, a Crim.R. 29(A) motion for judgment of acquittal tests the sufficiency of
the evidence. State v. Black, 10th Dist. No. 19AP-637, 2021-Ohio-676, ¶ 16. The sufficiency
of the evidence issue is also raised by McCall's second assignment of error.
{¶ 19} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime proven beyond a reasonable doubt. State v.
Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, ¶ 37. "[I]n a sufficiency of the evidence review, an appellate
court does not engage in a determination of witness credibility; rather it essentially assumes
the state's witnesses testified truthfully and determines if that testimony satisfies each
element of the crime." State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4.
{¶ 20} McCall was convicted of committing murder in violation of both R.C.
2903.02(A) and (B). R.C. 2903.02(A) provides that "[n]o person shall purposely cause the
death of another." "A person acts purposely when it is the person's specific intention to
cause a certain result, or, when the gist of the offense is a prohibition against conduct of a
certain nature, regardless of what the offender intends to accomplish thereby, it is the
offender's specific intention to engage in conduct of that nature." R.C. 2901.22(A).
"Purpose or intent can be established by circumstantial evidence * * * and by the
surrounding facts and circumstances in the case." State ex rel. Brust v. Mohr, 10th Dist.
No. 17AP-275, 2018-Ohio-1067, ¶ 12. In order to convict a defendant of felony murder in
violation of R.C. 2903.02(B), the state must prove the defendant caused the death of
another "as a proximate result of the offender's committing or attempting to commit an
No. 18AP-932 8
offense of violence that is a felony of the first or second degree and that is not a violation of
section 2903.03 or 2903.04 of the Revised Code."
{¶ 21} McCall was also convicted of tampering with evidence, in violation of R.C.
2921.12(A)(1), which provides "[n]o person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be instituted, shall * * * [a]lter,
destroy, conceal, or remove any * * * thing, with purpose to impair its value or availability
as evidence in such proceeding or investigation."
{¶ 22} There was no eyewitness to Brown's murder. But the circumstantial evidence
presented at trial reasonably leads to the conclusion that McCall purposely shot Brown in
the head, killing her. The coroner testified that Brown was killed from a single gunshot to
her forehead from a firearm that was approximately six to eight inches away when fired.
Horace testified that McCall, Brown, and herself were the only ones in the apartment during
the early hours of December 15, 2016. Horace was in her room with the door closed, but
she could hear McCall and Brown arguing over a video game and the firearm in McCall's
possession. Soon after Brown told McCall she was going to call the police,1 Horace heard a
firearm being racked and then one gunshot. Seconds later, McCall entered Horace's room
visibly shaking and said he "freaked out" because Brown was going to contact the police.
He also asked Horace whether she was going to tell the police he shot Brown or that
someone else shot her. Horace could see the firearm in McCall's pocket, and it appeared to
be the one owned by Jones, which was a .40 caliber Smith & Wesson. The spent shell casing
found at the shooting scene was for a .40 caliber bullet, and the bullet fragment later
recovered from Brown's body had characteristics consistent with being fired from a .40
caliber Smith & Wesson. When Jones asked the jailed McCall why he shot Brown, McCall
1 McCall argues the trial court erred in admitting into evidence Horace's testimony regarding Brown's
statements immediately preceding her death. But he does not assign this as error. "This court rules on
assignments of error, not mere arguments." Huntington Natl. Bank v. Burda, 10th Dist. No. 08AP-658,
2009-Ohio-1752, ¶ 21, citing App.R. 12(A)(1)(b) (stating that "a court of appeals shall * * * [d]etermine the
appeal on its merits on the assignments of error set forth in the briefs"). And even if McCall had assigned
the admission of this evidence as error, we would overrule it because this challenged testimony was
admissible under Evid.R. 803's exceptions to the rule against hearsay (present sense impression, excited
utterance, and then existing state of mind, emotion, sensation, or physical condition). See State v. Darazim,
10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 16 ("A trial court has broad discretion over the admission or
exclusion of evidence, and a reviewing court generally will not reverse an evidentiary ruling absent an abuse
of discretion that materially prejudices the affected party.").
No. 18AP-932 9
said it was because Jones stole his game. Based on these facts, it was reasonable for the
jury to conclude that McCall purposely caused the death of Brown, and Brown's death was
the proximate result of McCall committing a first or second-degree felony offense of
violence.
{¶ 23} Further, it was reasonable for the jury to conclude that McCall tampered with
evidence. The evidence reasonably demonstrated that, after shooting Brown in the head,
McCall left the scene with the weapon, even though he would have known an investigation
of Brown's death soon would be initiated. Horace saw the firearm on McCall's person
immediately after the shooting, and no firearm was found by the police as part of its
investigation. It could be inferred from this evidence that McCall took the weapon with him
with the intent to impede that investigation.
{¶ 24} Thus, to the extent McCall's second assignment of error challenges the
sufficiency of the evidence, it lacks merit. And because McCall cannot satisfy the Strickland
test based on his trial counsel's decision not to file either a motion in limine regarding his
pretrial statements or a motion for a Crim.R. 29 acquittal, his claim of ineffective assistance
of trial counsel must fail. Consequently, we overrule McCall's first assignment of error.
{¶ 25} The second issue raised by McCall's second assignment of error is whether
his convictions were against the manifest weight of the evidence. Determinations of
credibility and weight of the testimony are primarily for the trier of fact. State v. DeHass,
10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The jury, or the court in a bench
trial, may take note of inconsistencies at trial and resolve them accordingly, "believ[ing] all,
part, or none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-
Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964). Therefore, "[w]hen a court
of appeals reverses a judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a ' "thirteenth juror" ' and disagrees with
the factfinder's resolution of the conflicting testimony." Thompkins at 387, quoting Tibbs
v. Florida, 457 U.S. 31, 42 (1982); see State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667,
¶ 20 ("a prerequisite for any reversal on manifest-weight grounds is conflicting evidence").
{¶ 26} However, an appellate court considering a manifest weight challenge "may
not merely substitute its view for that of the trier of fact, but must review the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and
No. 18AP-932 10
determine whether, in resolving conflicts in the evidence, the trier 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." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins at 387. Appellate courts should reverse a conviction as being against the
manifest weight of the evidence only in the most " 'exceptional case in which the evidence
weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 27} McCall fails to demonstrate that his convictions were against the manifest
weight of the evidence. In support of his manifest weight contention, McCall primarily
relies on his sufficiency argument, even though a manifest weight argument is analyzed
under a different standard than a sufficiency argument. State v. Dillon, 10th Dist. No.
04AP-1211, 2005-Ohio-4124, ¶ 14. Further, McCall fails to identify any testimony or exhibit
in the record that conflicts with the evidence supporting the conviction. That is, McCall
cites no evidence that weighed against the evidence supporting the convictions. In the
absence of such evidence weighing heavily against the convictions, we find no manifest
injustice in the jury finding McCall guilty of committing murder and tampering with
evidence.
{¶ 28} Because McCall's convictions were supported by sufficient evidence and were
not against the manifest weight of the evidence, we overrule his second assignment of error.
IV. Disposition
{¶ 29} Having overruled McCall's first and second assignments of error, we affirm
the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and SADLER, J., concur.