State v. Wilson ( 2023 )

[Cite as State v. Wilson, 2023-Ohio-1046.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111814
v. :
ARLANDER WILSON III, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 30, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-639830-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carl M. Felice, Assistant Prosecuting
Attorney, for appellee.
Weston Hurd LLP and Paul Shipp, for appellant.
MARY EILEEN KILBANE, P.J.:
Defendant-appellant Arlander Wilson III (“Wilson”) appeals his
conviction and sentence. For the following reasons, we affirm.
Factual and Procedural History
This matter stems from the shooting of Javonte Harris (“Harris”) on
February 4, 2019, at the Arbor Park apartment complex (“Arbor Park”). Arbor
Park’s surveillance camera footage from that day depicted an individual dressed in
a dark hoodie with the hood pulled up over his head, blue underwear, acid-washed
jeans, and red boots exiting the rear door of the apartment situated at 2520 East
37th Street (“apartment 2520”).1 The individual’s face was not identifiable in any of
the surveillance camera footage. The individual exited apartment 2520 and
followed the sidewalk from the rear courtyard to Ali-Bey Avenue, where he entered
the rear door of a waiting minivan. The minivan drove away and moments later
stopped on Ali-Bey Avenue, just west of the East 36th Street intersection. The
shooter exited through the rear driver’s side door, walked east on Ali-Bey Avenue
towards East 36th Street, and stopped near a dumpster. The surveillance camera
footage does not provide a close-up view of the shooter exiting the minivan or
walking along Ali-Bey Avenue, but it is clear from the footage that he wore jeans and
a dark-colored hoodie.
At the same time the shooter walked east on Ali-Bey Avenue, Harris
walked north on East 36th Street towards the intersection of Ali-Bey Avenue. When
Harris reached the intersection, the shooter fired several gun shots at Harris. Harris
fled east on Ali-Bey Avenue and entered an apartment within Arbor Park.
1 The surveillance camera footage was not one continuous camera shot, but
included footage obtained from numerous cameras positioned throughout Arbor Park.
The surveillance camera footage depicted the shooter running west
on Ali-Bey Avenue, wearing the same clothing as the individual who previously
exited apartment 2520 — a dark hoodie with the hood pulled up over his head, blue
underwear, acid-washed jeans, and red boots. The surveillance camera footage also
showed the shooter was quickly picked up by what appeared to be the same minivan
he previously rode in before the shooting.
Immediately after the shooting, Arbor Park security and Cleveland
police officers arrived and canvassed the area. Travis Reyersbach (“Reyersbach”)
and Robert Weltendorf, private security employees for Arbor Park, collected bullet
shells near the dumpster on Ali-Bey Avenue where the shooting occurred.
Reyersbach also reviewed the apartment complex’s surveillance camera footage and,
with his knowledge of approximately when and where the shooting occurred, he
secured footage of the shooting. Reyersbach then reviewed Arbor Park’s
surveillance camera footage both before and after the shooting, looking for an
individual wearing clothes similar to those worn by the shooter. Based on the
clothing worn by the shooter, Reyersbach obtained surveillance camera footage of
the shooter from the time he exited apartment 2520, committed the alleged offense,
and left Arbor Park in a minivan. Reyersbach and other security employees also
referenced Arbor Park’s book of cited trespass violations — citations previously
issued due to an individual’s unwanted presence at Arbor Park — and found a
trespass violation stemming from apartment 2520 had been issued to Wilson. The
surveillance camera footage and Wilson’s prior trespass violation were provided to
the police department.
Detective James Crivel (“Detective Crivel”) with the Division of Police
investigated Harris’s shooting. Detective Crivel entered Wilson’s name into the
police database referenced as Ohio Law Enforcement Gateway (“OHLEG”) and
obtained a picture of Wilson as well as his height and weight. After comparing the
OHLEG data with a close-up screenshot of the shooter when he exited apartment
2520, Detective Crivel believed the OHLEG data supported the conclusion that
Wilson was the shooter. Approximately three hours after the shooting, Detective
Crivel questioned Synthia Franklin (“Franklin”), the leaseholder of apartment 2520,
who stated Wilson, the father of her child, exited the back door of her apartment
earlier that day wearing red boots.
On May 16, 2019, in Cuyahoga C.P. No. CR-19-639830 (“CR-19-
639830”), a Cuyahoga County Grand Jury indicted Wilson on Count 1, attempted
murder, in violation of R.C. 2923.02 and 2903.02(A); Count 2, felonious assault in
violation of R.C. 2903.11(A)(1); Count 3, felonious assault in violation of R.C.
2903.11(A)(2); and Count 4, having weapons while under disability in violation of
R.C. 2923.13(A)(2). Counts 1, 2, and 3 included notice of prior conviction and repeat
violent offender specifications, and all four counts carried one-year, three-year, and
54-month firearm specifications.
On May 31, 2019, the trial court issued a capias for Wilson, and he
was in the court’s custody as of September 13, 2019. On September 17, 2019, Wilson
pleaded not guilty to the indictment. On September 26, 2019, the trial court
transferred Wilson’s case to the mental health court docket. The trial court
conducted multiple pretrial hearings from October 13, 2019, through March 9,
2020, with trial set on April 27, 2020. Then, in an attempt to reduce the community
spread of Covid-19, the trial court continued the trial date several times until the
spring of 2021. During that time, on November 5, 2020, Wilson posted bond.
On May 27, 2021, Wilson voluntarily waived his right to a jury trial on
the notice of prior conviction; repeat violent offender and 54-month firearm
specifications; and Count 4, having weapons while under disability.
On June 1, 2021, the trial court impaneled a jury and trial
commenced. On June 2, 2021, Wilson failed to appear at trial. The court issued a
capias and proceeded with the jury trial despite Wilson’s absence. On June 3, 2021,
in Wilson’s abstentia, the jury returned guilty verdicts on Count 1, attempted
murder, with one- and three-year firearm specifications, and Counts 2 and 3,
felonious assault, each with one- and three-year firearm specifications. The court
found Wilson guilty of the notice of prior conviction and repeat violent offender
specifications on Counts 1 through 3 and the 54-month firearm specifications on
Counts 1 through 4.
One year later, on June 25, 2021, the trial court obtained custody of
Wilson. The trial court held a number of status hearings between July 14, 2021, and
May 9, 2022, and noted the ongoing proceedings against Wilson in two pending
criminal cases: Cuyahoga C.P. No. CR- XX-XXXXXXX (“CR-19-637471”) and Cuyahoga
C.P. No. CR-XX-XXXXXXX (“CR-21-664708”).
On July 14, 2022, the trial court held Wilson’s sentencing hearing in
the instant matter, CR-19-639830. For sentencing purposes, Counts 2 and 3 merged
into Count 1; the state elected to proceed with sentencing on Counts 1 and 4 and
each count’s 54-month firearm specification. The trial court sentenced Wilson to 11-
years on Count 1’s base offense, 54-months on Count 1’s firearm specification, 36-
months on Count 4’s base offense, and 54-months on Count 4’s firearm
specification. The firearm specifications were to run consecutively to each other and
2 On March 5, 2019, in CR-19-637471, a Cuyahoga County Grand Jury indicted
Wilson on two counts stemming from an unrelated incident on or about November 24,
2018, through November 25, 2018. On March 19, 2019, the trial court issued a capias for
Wilson, and Wilson was in the court’s custody on September 13, 2019. The trial court
held pretrial hearings from October 16, 2019, through March 9, 2020, and then continued
trial due to Covid-19 restrictions from April 27, 2020, through February 17, 2021. The
trial court conducted status hearings and pretrial hearings from July 12, 2021, through
May 9, 2022, noting the new case — CR-21-664708 — brought against Wilson. On
June 21, 2022, Wilson withdrew his not guilty plea and pleaded guilty to Count 1,
domestic violence. The court nolled Count 2. On July 14, 2022, the trial court sentenced
Wilson to an 18-month prison sentence.
3On October 28, 2021, in CR-21-664708, a Cuyahoga County Grand Jury indicted
Wilson on seven counts stemming from an unrelated incident on or about June 24, 2021.
On November 2, 2021, Wilson pleaded not guilty to the indictment. The trial court
conducted pretrial hearings from December 6, 2021, through May 9, 2022. On June 21,
2022, Wilson withdrew his not guilty plea and pleaded guilty to Count 1, having weapons
while under disability with a 1-year firearm specification and forfeiture specifications and
Count 4, burglary with forfeiture specifications. The court nolled the remaining counts.
On July 14, 2022, the trial court sentenced Wilson to 36-months on Count 1’s base offense
plus one-year on the firearm specification and 8 to 12 years on Count 4, with all counts to
run concurrently, but consecutively to the one-year firearm specification and the
mandatory firearm specifications in the instant matter, CR-19-639830.
consecutively to the one-year firearm specification in Count 1 of CR-21-664708, for
a total sentence of 24 years.
On August 8, 2022, Wilson filed a timely notice of appeal, presenting
four assignments of error for our review:
Assignment of error one: The trial court erred in providing the jury its
own definition of reasonable doubt during jury selection.
Assignment of error two: The trial court erred in allowing a witness to
testify to the ultimate issue without personal knowledge.
Assignment of error three: The trial court erred by admitting hearsay.
Assignment of error four: Appellant’s convictions were against the
manifest weigh of the evidence.
Legal Analysis
Definition of Reasonable Doubt Standard
In his first assignment of error, Wilson argues that the trial court
erred when it amplified the definition of reasonable doubt. Specifically, Wilson
argues that he was prejudiced when the trial court expounded on the definition of
reasonable doubt during voir dire and allegedly lowered the jury’s expectations of
the evidence needed to render a guilty verdict. The state argues the trial court’s
recitation of the statutory definition for reasonable doubt provided both at voir dire
and when the court charged the jury properly guided the jury.
During voir dire, the trial judge provided the statutory definition of
reasonable doubt:
“Reasonable doubt” is present when the jurors, after they have carefully
considered and compared all the evidence, cannot say they are firmly
convinced of the truth of the charge. It is a doubt based on reason and
common sense. Reasonable doubt is not mere possible doubt, because
everything relating to human affairs or depending on moral evidence is
open to some possible or imaginary doubt. “Proof beyond a reasonable
doubt” is proof of such character that an ordinary person would be
willing to rely and act upon it in the most important of the person’s own
affairs.
R.C. 2901.05(E).
Expounding on the statutory definition and, more specifically, on the
“important affairs” portion of the reasonable doubt definition, the trial judge then
described how she selected a pediatrician for her children and what reasonable steps
she took to make that selection. The trial judge stated she met the pediatrician,
observed his interactions with her child, and spoke directly with him. The trial judge
further stated:
So the doctor is my most important affair right now, and I should tell
you my son’s doing a lot better. Now, with that being said, that doctor
is super important in my life. That is one of the most important
decisions that I have made most recently that I can give you an example
about.
Now, again, I think it would be unreasonable if I followed the doctor
around, hired a private investigator and had the doctor followed for a
month, so that I could be 100 percent sure, because there is no 100
percent sure, right, ladies and gentlemen? Even if I did that, would it
work? Would I know everything about that person? I would not. So
this is a burden of reasonable doubt, doubt based on reason and
common sense, and that’s what you need to remember.
Tr. 45. Wilson argues the comments above inappropriately expounded upon or
amplified the unreasonable doubt definition and misled the jury as to the state’s
burden of proof.
Defense counsel raised no objections on this issue at trial, and
therefore, this issue is reviewed under the plain error standard. Crim.R. 52(B); State
v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 28. Pursuant to
Crim.R. 52(B), a court may take notice of plain errors affecting substantial rights
although the errors were not brought to the trial court’s attention. To constitute
plain error, the appealing party must establish that an obvious or plain error — or
deviation from a legal rule — affected the outcome of the trial. State v. White, 8th
Dist. Cuyahoga No. 110452, 2022-Ohio-2130, ¶ 37, quoting State v. Pratts, 8th Dist.
Cuyahoga No. 104235, 2016-Ohio-8053, ¶ 34, citing State v. Barnes, 94 Ohio St.3d
21, 27, 759 N.E.2d 1240 (2002). “Even if the plain error standard is met, courts
should only notice it ‘with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.’” White at ¶ 37, quoting State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
An amplification of the reasonable doubt standard “‘must be
erroneous and prejudicial to the complaining party before the judgment of the trial
will be disturbed.’” State v. Van Gundy, 64 Ohio St.3d 230, 233, 594 N.E.2d 604(1992), quoting State v. Sargent, 41 Ohio St.2d 85, 90, 322 N.E.2d 634 (1975). A
trial court’s jury instructions can negate earlier misconceptions presented during
voir dire. State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 125
(“mitigation-phase instructions cured any earlier misunderstandings on this point
during voir dire”); State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23
N.E.3d 1096, ¶ 237 (misstated shorthand references to legal concepts during voir
dire cured by correct mitigation-phase jury instructions).
While we find the trial court’s additional comments about reasonable
doubt and important affairs were unnecessary, we do not find the statements were
erroneous or prejudicial. Nor did the trial court’s additional commentary on
important affairs denigrate the reasonable doubt standard. See State v. Hanna, 95
Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 79 (counsel’s analogy of
crossing a bridge as an important affair did not denigrate the reasonable doubt
standard). Any misconceptions created by the trial court’s additional comments
were remedied when the court correctly charged the jury. State v. Ahmed, 103 Ohio
St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 147 (the trial court’s correct jury
instructions cured counsel’s incorrect voir dire comments describing the
defendant’s burden in the penalty phase). “The jury is presumed to follow the
instructions given to it by the trial judge[,]” and we presume the jury here followed
the statutory definition for reasonable doubt. Ahmed at ¶ 147, citing State v.
Henderson, 39 Ohio St.3d 24, 33, 528 N.E.2d 1237 (1988).
For the foregoing reasons, we cannot say that the trial court’s
additional comments on reasonable doubt and important affairs rose to the level of
plain error. Wilson’s first assignment of error is overruled.
Improper Opinion Testimony
In his second assignment of error, Wilson argues that the trial court
erred when it allowed Reyersbach to identify Wilson as the shooter. The identity of
the shooter was the ultimate issue at trial. Reyersbach testified that the shooter seen
in the surveillance camera footage was Wilson. However, the surveillance camera
footage reviewed by Reyersbach did not clearly depict the shooter’s face and
Reyersbach had no personal knowledge upon which he could identify Wilson.
Further, Wilson argues that the introduction of Reyersbach’s statements identifying
Wilson as the shooter were not harmless error pursuant to Crim.R. 52(A) and,
therefore, those statements amounted to an abuse of discretion that require reversal
of his convictions. The state concedes that Reyersbach’s identification of Wilson was
improper opinion testimony because it was not based upon personal knowledge but
argues that the testimony was harmless error.
Assuming Reyersbach’s identification testimony of Wilson was
improper, we must determine whether the introduction of that testimony
constitutes harmless error or requires a remand of the instant matter. Crim.R. 52(A)
provides that “[a]ny error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” A judgment of conviction shall not be
reversed unless the accused was prejudiced by the admission of the evidence in
question. R.C. 2945.83. “Not every error requires that a conviction be vacated * * *.”
State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24. To
establish prejudice of one’s substantial rights, the error “‘must have affected the
outcome of the [trial] court proceedings.’” State v. Fisher, 99 Ohio St.3d 127, 2003-
Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting United States v. Olano, 507 U.S. 725, 734,
113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
The Ohio Supreme Court set forth a three-part analysis to determine
whether the introduction of improper evidence affected the substantial rights of a
defendant, thereby requiring a new trial, or whether the admission of that evidence
constituted harmless error under Civ.R. 52(A):
First, it must be determined whether the defendant was prejudiced by
the error, i.e., whether the error had an impact on the verdict. [Morris]
at ¶ 25, 27. Second, it must be determined whether the error was not
harmless beyond a reasonable doubt. Id. at ¶ 28. Lastly, once the
prejudicial evidence is excised, the remaining evidence is weighed to
determine whether it establishes the defendant’s guilt beyond a
reasonable doubt. Id. at ¶ 29, 33.
State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37; see also
State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, ¶ 63. The state
bears the burden of demonstrating that the error did not affect the defendant’s
substantial rights. State v. Johnson, 8th Dist. Cuyahoga No. 110942, 2023-Ohio-
445, ¶ 74, citing State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d
841, ¶ 55; State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15.
“Error in the admission of evidence is harmless beyond a reasonable doubt when
‘there is [no] reasonable possibility that the improperly admitted evidence
contributed to the conviction.’” State v. Jones, 8th Dist. Cuyahoga No. 110742,
2023-Ohio-380, ¶ 141, citing State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-
5735, 70 N.E.3d 508, ¶ 192, quoting Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct.
1056, 31 L.Ed.2d 340 (1972).
Reyersbach’s testimony meets the first prong of the harmless error
analysis. Because the identity of the shooter was the key issue at trial, Wilson was
prejudiced when Reyersbach identified him as the shooter. However, Reyersbach’s
testimony does not satisfy the second or third prong of the harmless error analysis.
The error was harmless beyond a reasonable doubt because “‘the remaining
evidence, standing alone, constitute[d] overwhelming proof of [Wilson’s] guilt.’”
State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 43, quoting
State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983), paragraph six of the
syllabus.
The Arbor Park surveillance camera footage demonstrated that the
shooter exited apartment 2520 wearing a black hoodie with the hood pulled up over
his head, acid-washed jeans, and red boots; entered a waiting minivan; exited the
minivan on Ali-Bey Avenue and shot Harris; ran from the scene; entered what
appeared to be the same minivan the shooter drove in earlier that day; and drove
away. Franklin testified that Wilson left apartment 2520 on the day in question
wearing red boots.4 According to the trial court record, Wilson even wore red boots
on the first day of trial. The state also introduced the recordings of three jailhouse
calls made by Wilson during which Wilson indicated his concern that any testimony
about his wearing red boots would secure a guilty verdict against him.5 Reyersbach’s
4 Franklin initially testified that she could not identify the individual depicted in
the surveillance camera footage, who was wearing a black jacket, jeans, and red boots,
because the picture was blurry and did not clearly show the individual’s face. After the
state refreshed Franklin’s memory with the February 4, 2019 body camera recording from
Franklin’s interview with the Cleveland police officers, she identified Wilson as the
individual who exited the rear door of apartment 2520 clad in red boots.
5Franklin also testified she was familiar with Wilson’s voice, and she verified that
the individual speaking in the three jailhouse calls was Wilson.
identification of Wilson was unnecessary to establish Wilson’s guilt beyond a
reasonable doubt. We find Wilson’s arguments that DNA evidence, cell phone
records, direct eyewitness testimony, or other physical evidence were required to
establish his identity unpersuasive. Circumstantial evidence was sufficient to
sustain a conviction where the evidence convinced the trier of fact of Wilson’s guilt
beyond a reasonable doubt. See State v. O’Malley, 8th Dist. Cuyahoga No. 109454,
2021-Ohio-2038, ¶ 25, quoting State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-
6046, 837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d 231, 238, 553
N.E.2d 1026 (1990).
Thus, we find the trial court committed harmless error when it
admitted Reyersbach’s comment that Wilson was the shooter. Wilson’s second
assignment of error is overruled.
Hearsay Testimony
In his third assignment of error, Wilson argues that the trial court
erred when it allowed Reyersbach’s hearsay testimony about the contents of Arbor
Park’s trespass citation book. The referenced citation book was not produced in
discovery nor was it presented at trial. The state contends no hearsay issue arose
because Reyersbach’s testimony was not offered to establish the truth of the issued
citation but to clarify that during his investigation Reyersbach obtained information
from the citation book that produced Wilson’s name.
Pursuant to Evid.R. 801(C), hearsay is defined as “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Hearsay statements, generally,
are inadmissible. Evid.R. 802. Yet, “[t]he Supreme Court of Ohio has explained that
‘[a] statement is not hearsay when offered for a purpose other than to prove the truth
of the matter asserted.’” State v. Adl, 8th Dist. Cuyahoga No. 111170, 2022-Ohio-
2692, ¶ 17, quoting State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d
588, ¶ 118, citing State v. Davis, 62 Ohio St.3d 326, 343, 581 N.E.2d 1362 (1991).
Reyersbach’s testimony was not offered to prove the truth of the
trespassing citation against Wilson. Reyersbach testified about Arbor Park’s citation
book to indicate the steps of his investigation following Harris’s shooting. Whether
Wilson trespassed at apartment 2520 was irrelevant and had no bearing on the
state’s case. The testimony in question was not hearsay, and thus, Wilson’s third
assignment of error is overruled.
Manifest Weight of the Evidence
In his fourth assignment of error, Wilson argues the verdict was
against the manifest weight of the evidence. Specifically, Wilson argues
Reyersbach’s testimony regarding the trespass citation was hearsay and should have
been excluded; the victim, Harris, failed to testify and did not identify Wilson as the
shooter; and the testimony of Franklin and Detective Crivel failed to adequately
identify Wilson as the shooter. The state contends that the presented evidence
weighed heavily in favor of convicting Wilson and the evidence was more than
enough to support the jury’s guilty verdicts.
A manifest weight challenge questions the credibility of the evidence
presented and examines whether the state met its burden of persuasion at trial.
State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541; State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13, citing Thompkins at 390. A reviewing
court “weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus. When
considering an appellant’s claim that a conviction is against the manifest weight of
the evidence, the court of appeals sits as a “thirteenth juror” and may disagree with
the factfinder’s resolution of the conflicting testimony. Thompkins at 387, citing
Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). A reversal
on the basis that a verdict is against the manifest weight of the evidence is granted
“only in the exceptional case in which the evidence weighs heavily against the
conviction.” Martin at paragraph three of the syllabus.
Following a thorough review of the record, we cannot conclude that
this is the exceptional case in which the trier of fact lost its way. We do not agree
with Wilson that the only evidence that identified him as the shooter was
inadmissible hearsay such as Reyersbach’s reliance on the book of citations or
Detective Crivel’s use of OHLEG. As described previously, Reyersbach’s testimony
was harmless error. Absent Reyersbach’s identification of Wilson, the surveillance
camera footage demonstrated the shooter, wearing a dark hoodie with the hood
pulled up over his head, blue underwear, acid-washed jeans, and red boots, exited
apartment 2520 and shot Harris. Franklin identified Wilson as the individual who
left her home — apartment 2520 — wearing red boots. The surveillance camera
footage and Franklin’s testimony provided ample evidence to demonstrate Wilson
shot Harris. Wilson’s jailhouse calls further supported the conclusion that Wilson
was the shooter. Even absent Reyersbach’s testimony that he obtained Wilson’s
name from the citation book and Detective Crivel’s testimony that he compared
Wilson’s OHLEG statistics with the surveillance camera footage and concluded
Wilson was depicted in that footage, the evidence demonstrated that the state met
its burden of persuasion. Wilson’s fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
LISA B. FORBES, J., and
SEAN C. GALLAGHER, J., CONCUR