State v. Burgos-Delgado , 2023 Ohio 1817 ( 2023 )

[Cite as State v. Burgos-Delgado, 2023-Ohio-1817.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111992
v. :
JUAN A. BURGOS-DELGADO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 1, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-625204-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
Attorney, for appellee.
P. Andrew Baker, for appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant, Juan A. Burgos-Delgado, appeals from his
judgment of conviction, which was rendered after a jury trial on two joined
indictments. After a thorough review of the facts and pertinent law, we affirm.
Procedural History
The first incident giving rise to indictment occurred on January 7, 2018,
and was charged in Cuyahoga C.P. No. CR-18-625204. In that case, Burgos-Delgado
and a codefendant, Wilfredo Garcia-Rodriguez, were charged with the following
crimes relative to the homicide of James Dowell: Count 1, aggravated murder in
violation of R.C. 2903.01(B); Count 2, aggravated murder in violation of R.C.
2903.01(A); Count 3, aggravated burglary in violation of R.C. 2911.11(A)(1); Count
4, aggravated robbery in violation of R.C. 2911.01(A)(3); Count 5, kidnapping in
violation of R.C. 2905.01(A)(2); Count 6, kidnapping in violation of R.C.
2905.01(A)(3); Count 7, aggravated robbery in violation of R.C. 2911.01(A)(1); and
Count 8, kidnapping in violation of R.C. 2905.01(A)(2). Counts 1 through 8 all
contained one- and three-year firearm specifications, notices of prior conviction,
and repeat violent offender specifications. A final count, Count 9, related solely to
codefendant Garcia-Rodriguez being charged with having weapons while under
disability.1
The second incident occurred on January 18, 2018, just days after the
homicide, and was charged in Cuyahoga C.P. No. CR-20-647651. The charges in
1 Garcia’s case proceeded to a separate jury trial on all charges except Count 9, having
weapons while under disability, which was tried to the bench. The jury found him guilty of
murder, a lesser-included offense of Count 1, guilty of Count 3, aggravated burglary, and
not guilty on the other charges. The trial court found him guilty of Count 9, having weapons
while under disability. The trial court sentenced Garcia-Rodriguez to 29 years to life. His
conviction and sentence were upheld on appeal. See State v. Garcia-Rodriguez, 2022-
Ohio-4283, 202 N.E.3d 729 (8th Dist.).
that case resulted from a traffic stop of a vehicle Burgos-Delgado was driving and
consisted of one count of tampering with evidence in violation of R.C. 2921.12(A)(1)
and one count of drug possession in violation of R.C. 2925.11(A).
The state filed a motion to join the indictments for one trial. Defense
counsel agreed to the joinder and the cases were heard together in a single jury trial.
The state presented 11 witnesses, and after it rested the defense made a Crim.R. 29
motion for judgment of acquittal, which the trial court denied. The defense did not
present any witnesses on its behalf.
After its deliberations, on the homicide charges, the jury found Burgos-
Delgado guilty of Counts 1, 3, 4, 5, 6, 7, and 8, as well as the accompanying one- and
three-year firearm specifications. The jury found him not guilty of Count 2. At
sentencing, Counts 5 and 6 merged with Count 4 and the state elected to proceed on
Count 4; and Counts 7 and 8 merged and the state elected to proceed on Count 7.
The trial court sentenced Burgos-Delgado on Count 1, aggravated murder, to life
without parole, plus three years on the firearm specification, to be served prior to
and consecutive to the underlying charge, and ten years on the remaining counts
after merger, to be served consecutively to each other. The trial court further
ordered that the gun specification on Count 7 be served consecutive to the gun
specification on Count 1.
On the drug charges, the jury found Burgos-Delgado guilty of both
counts (tampering with evidence and drug possession). The trial court sentenced
him to 36 months on Count 1, tampering with evidence, and 12 months on Count 2,
drug possession. The sentences were ordered to be served concurrently and
concurrently to the sentence on the homicide charges.
Trial Testimony
Homicide of Dowell
E.R., who was 14 years old at the time of the crime, testified that at the
relevant time he lived with his mother and her boyfriend, codefendant Garcia-
Rodriguez, who was known as “Jyto.” The victim, Dowell, was a friend of E.R.’s
family and E.R. would buy marijuana from him. E.R. testified that on at least two
occasions prior to Dowell’s murder, he and Garcia-Rodriguez had been together
when purchasing marijuana from Dowell.
E.R. testified that on the day of the murder he had been at his cousin’s
house and he left the house on foot to go home. On his way home, he noticed his
mother’s car parked outside a house. He was surprised to see her car at the house
and knocked on the door of the house to find out why she was there. Garcia-
Rodriguez answered the door. Burgos-Delgado, who E.R. had not previously
known, was in the house. E.R. described Burgos-Delgado as shorter and “chubbier”
than Garcia-Rodriguez and as having a limp when he walked.
Garcia-Rodriguez told E.R. that they were about to rob Dowell. Garcia-
Rodriguez and Burgos-Delgado had two guns — both automatics, one was bigger
and a “regular” color and the other was smaller and light blue. E.R. left with the duo
in his mother’s car, with Burgos-Delgado driving. Burgos-Delgado drove them to
Dowell’s house and parked in an alley behind the house. Burgos-Delgado told E.R.
that if he did not do as Burgos-Delgado instructed him, Burgos-Delgado would kill
his mother, aunt, and niece. E.R. testified that he was instructed to go into Dowell’s
house and leave the door unlocked so that Burgos-Delgado and Garcia-Rodriguez
could gain access to the home.
Following Burgos-Delgado’s instruction, E.R. went to Dowell’s side
door and knocked on it. Dowell answered the door, let E.R. in, and E.R. left the door
unlocked. There was a female in the house with Dowell. E.R. asked Dowell for
marijuana.
Shortly after entering Dowell’s house, Burgos-Delgado and Garcia-
Rodriguez entered the house through the door E.R. left unlocked. They were both
wearing masks on their faces — one had a dark one and the other had a blue one.
They also both had gloves on and both had guns, which they pointed at Dowell and
the female as they told them to get on the ground.
Dowell resisted and fought with Garcia-Rodriguez. E.R. testified that
he heard Dowell ask Jyto (Garcia-Rodriguez’s nickname) why he was doing this.
According to E.R., Burgos-Delgado had the light blue gun and used it to hit Dowell
on the head. As Dowell and Garcia-Rodriguez continued to fight, Garcia-
Rodriguez’s gun fell to the ground and Burgos-Delgado retrieved it. Burgos-
Delgado, who was within “arm’s reach” of Dowell, shot Dowell first in the chest and
then in the head.
Burgos-Delgado threw a bag to E.R. and told him to take everything
off of a nearby table. E.R. grabbed a bag of marijuana off the table and he, Burgos-
Delgado, and Garcia-Rodriguez fled Dowell’s house and went to Burgos-Delgado’s
house.
A few days after the shooting, a detective came to E.R.’s school and
talked to him. E.R. initially lied to the detective about his knowledge of and
involvement in the shooting. Eventually, after Garcia-Rodriguez had been identified
as a suspect, E.R. told the truth. E.R. testified that he lied because he was scared by
Burgos-Delgado’s threat to kill his family.
The female who E.R. testified was in Dowell’s house was identified as
Savannah Alley. She acknowledged that Dowell was a drug dealer and she was often
with him when he made his sales. She testified that she was at Dowell’s house on
the day of the shooting, and someone called him asking for $5 worth of marijuana.
Later, “a kid” (E.R.) came to purchase the marijuana. While Alley and Dowell were
in the kitchen with E.R., two men ran in. One had a black gun and the other had a
blue gun. The bigger of the two men had her on the ground with his gun to her head,
while the other man fought with Dowell. Dowell said to the man who he was fighting
with, “Jyto, I know it’s you, why would you do this to me?”
Alley further testified that one of the men pistol-whipped Dowell and
put duct tape on his face. She then heard gunshots and was able to run away and
hide in another part of the house. After a few minutes she heard a car pull off. Alley
discovered that the intruders took her cell phone so she alerted the police through
Dowell’s house alarm system.
Law enforcement, who responded to the scene, recovered the
following evidence: (1) a spent bullet under Dowell’s body, (2) a spent casing on the
kitchen floor, (3) a spent casing on top of the washing machine in the laundry room,
which was adjacent to the kitchen, (4) a roll of gray duct tape with a crumpled piece
of it with suspected blood still attached to the roll, (5) suspected blood outside in the
snow leading from Dowell’s house towards the alley, (6) a black winter cap, and (7)
a piece of blue duct tape.
Alley was able to identify both E.R. and Garcia-Rodriguez to the police.
Garcia-Rodriguez was apprehended first. After Garcia-Rodriguez’s interview with
the police, an arrest warrant was issued for Burgos-Delgado. Further, a search
warrant for Burgos-Delgado’s home was issued and during the execution of the
search, blue duct tape, a light blue semiautomatic handgun, and ammunition were
recovered from Burgos-Delgado’s home.
Trace evidence testing was conducted on the blue duct tape recovered
from the crime scene and the blue duct tape found in Burgos-Delgado’s home. The
initial testing tended to show that the blue duct tape found outside of Dowell’s home
was not directly torn from the roll found at Burgos-Delgado’s home, or if it was, there
was a piece missing between. However, further testing revealed that the two blue
duct tapes had a “level III association.” The trace evidence witness testified that
there were no microscopic differences between the backing, the adhesive, and the
fibers on the strip of duct tape found at the scene and the roll found in Burgos-
Delgado’s home, which meant that although the ends of the strip and roll did not
match up, the strip could have come from the roll.
A witness testified about the ballistic testing that was performed.
According to the witness, the two spent casings from the crime scene, along with the
spent bullet recovered from under Dowell’s body, were all the same 7.62 by 25-
millimeter rounds and were fired by the same caliber firearm. The witness testified
that the ammunition recovered from Burgos-Delgado’s home was also 7.62 by 25-
millimeter. The witness compared the ammunition from Burgos-Delgado’s home
with the two fired casings from the crime scene and found that the ammunition from
the home had the same ejector and extractor marks on them as did the two fired
casings from the crime scene. Thus, according to the witness, the two live rounds
from Burgos-Delgado’s home were “cycled through” the same firearm that fired the
two spent casings at the crime scene. She explained that “cycling” occurs when
someone loads a round into the chamber of a gun and then racks the slide to eject it
without firing it.
DNA testing was also performed, and a witness testified as to the
results. The roll of gray duct tape recovered from the crime scene contained Dowell
and Garcia-Rodriguez’s DNA on the sides of the roll. The winter cap recovered from
the crime scene had Garcia-Rodriguez’s DNA in it. The blood outside the house
leading toward the alley, as well as blood on the strip of blue duct tape found near
the alley, was Dowell’s. The roll of blue duct tape from Burgos-Delgado’s home
contained the DNA of Burgos-Delgado, Garcia-Rodriguez, and Dowell, with the
greatest percentage of the DNA being Burgos-Delgado’s.
The chief deputy medical examiner for Cuyahoga County testified
about the autopsy protocol for Dowell. Dowell was shot twice. One bullet entered
the left back of Dowell’s head and exited around his right eye, passing through the
skull. The second bullet went through Dowell’s right upper arm, entering on the
inside of the bicep area and exiting the tricep area of the right upper arm. Dowell
also suffered injuries to his face and knees, which the deputy medical examiner
opined were caused by blunt trauma suffered during a fight or by being struck with
an object.
The deputy medical examiner testified that unburned gunpowder
caused stipple wounds to the skin by the left back of Dowell’s head, which indicated
that he had been shot at close range. Specifically, the deputy medical examiner
opined that the gun had been less than 18 inches from Dowell’s head when it was
fired. The deputy medical examiner further determined that Dowell had suffered
three separate blows to his head apart from the gunshot wound. Moreover, Dowell
had other stipple wounds on his face from being close to another gunshot that was
fired, separate from the gunshot to the back of his head that killed him. Based on
the stippling to Dowell’s face and the entrance and exit wounds to his arm, the
deputy medical examiner opined that Dowell could have had his arm raised over his
face as a defensive action. The gunshot wound to Dowell’s head would have
immediately caused Dowell to become totally incapacitated. Thus, the deputy
medical examiner believed that the shot to Dowell’s arm, in which Dowell had a
defensive posture at the time the bullet was fired, occurred first.
Tampering with Evidence and Drug Possession
Approximately one-and-a-half weeks after the murder of Dowell,
Burgos-Delgado was stopped by an Ohio State Highway trooper for a traffic
infraction. A run of Burgos-Delgado’s license plate revealed an active felony warrant
with an advisement to approach with caution, which caused the trooper to have
Burgos-Delgado exit the vehicle for a patdown search and then placement into the
trooper’s cruiser.2 During the patdown search, the trooper felt what he believed was
a small vial. The trooper suspected what he felt contained illegal narcotics, but the
trooper was by himself at that time and there was another person in Burgos-
Delgado’s vehicle, so he left the vial in Burgos-Delgado’s pocket, intending to recover
it with gloves on after the other occupant was secured.
The trooper’s cruiser was equipped with a dash camera and an interior
camera, both of which recorded the encounter; recordings from the cameras were
played for the jury. The recordings showed that after Burgos-Delgado exited his
vehicle, he stood in the street and then walked to the rear of the police cruiser
without incident. The recordings further showed that when Burgos-Delgado was in
the rear of the police car, he moved around while his hands were cuffed and was able
to retrieve the vial from his pocket and dump out the contents — a powder — onto
2 After Burgos-Delgado was in the cruiser, the trooper learned that the arrest
warrant was for homicide with a weapon.
the floor of the cruiser. After dumping the powder, Burgos-Delgado manipulated
the powder with his feet.
Meanwhile, the trooper had been occupied with the other occupant in
Burgos-Delgado’s vehicle. As the trooper came back to his cruiser, Burgos-Delgado
began to groan as if he was in pain. The trooper testified that Burgos-Delgado had
not previously acted in such a manner. The trooper had Burgos-Delgado exit the
cruiser; Burgos-Delgado did so under his own power and was able to stand without
incident. The trooper then directed Burgos-Delgado to get back into the cruiser.
The Cleveland police arrived to take custody of Burgos-Delgado. The
state trooper testified that as Burgos-Delgado was walked to the Cleveland police
vehicle, he “fell to the ground with a sudden inability to walk.” According to the
trooper, that was the first and only time Burgos-Delgado exhibited any such
problems with the use of his legs during the encounter. The trooper testified that
Burgos-Delgado’s vehicle was not handicap-equipped and there was nothing in the
vehicle, such as a wheelchair, to indicate that Burgos-Delgado was handicapped.
After Burgos-Delgado was turned over to the Cleveland police, the
trooper located the broken vial Burgos-Delgado had smashed on the floor of the
cruiser as well as white powder residue on the floor. The powder had snow and ice
from Burgos-Delgado’s shoes mixed in with it, but the trooper collected what he was
able. A drug analyst with the Ohio State Highway Patrol Crime Lab tested the
broken piece of glass recovered from the trooper’s cruiser and determined it
contained cocaine.
Burgos-Delgado’s Interview
One of the investigating detectives testified about his interview with
Burgos-Delgado, which was video recorded in its entirety. Burgos-Delgado was in a
wheelchair during the interview. Burgos-Delgado denied being a part of the
homicide of Dowell, mainly citing his alleged inability to walk. He became
emotional when he was told that he was being arrested for murder, reiterating that
he could not have murdered Dowell because of his purported disability. Burgos-
Delgado told the detective, “I don’t even leave my house so how is this possible. I
am always at home because of my handicap.” He told the detective that he had been
shot in the back and was paralyzed. He consented to the police swabbing for his
DNA and told them that none of his DNA would be connected to the crime scene.
In regard to the vehicle E.R. said Burgos-Delgado was driving on the
day of the murder, Burgos-Delgado told the detective that his friends used it to drive
him around. Burgos-Delgado also denied knowing Dowell and claimed he only
knew Garcia-Rodriguez from when he lived in Puerto Rico; he denied being
acquainted with him in Cleveland. Further, Burgos-Delgado denied that he owned
a gun.
The detective testified that in 2021, the police seized a cell phone from
Burgos-Delgado and extracted information from it. On that phone was a video from
July 5, 2021. The video was played for the jury and showed Burgos-Delgado
recording himself talking to his phone. In the video, Burgos-Delgado was walking
around his house without issue. Burgos-Delgado was in a wheelchair for the
December 2021 trial.
Assignments of Error
I. Defendant-appellant’s conviction must be reversed due to
ineffective assistance of counsel.
II. The trial court erred in imposing consecutive sentences.
III. The trial court erred in instructing the jury as to complicity.
IV. The trial court erred when it permitted the prosecutor to play a
video of defendant-appellant that was recorded in 2021.
V. Counts five, six, and eight of the 2018 indictment must be
merged.
Law and Analysis
Ineffective Assistance of Counsel
In his first assignment of error, Burgos-Delgado contends that his trial
counsel was ineffective for (1) not objecting to the joinder of the two indictments,
(2) for failing to file a motion to dismiss based on a speedy trial violation, and (3)
eliciting testimony from a state’s witness that codefendant Garcia-Rodriguez
implicated Burgos-Delgado to law enforcement.
The test for an ineffective assistance of counsel claim is two-part:
whether trial counsel’s performance was deficient and, if so, whether the deficiency
resulted in prejudice. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-
4153, ¶ 18, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794
N.E.2d 27, ¶ 107. In order to prove prejudice, “[t]he defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” State v. Lyons, 7th Dist.
Belmont No. 14 BE 28, 2015-Ohio-3325, ¶ 11, citing Strickland at 694. The appellant
must affirmatively prove the alleged prejudice occurred. Strickland at 693.
As both prongs of the Strickland test are necessary to prove an
ineffective assistance of counsel claim, if one prong is not met, an appellate court
need not address the remaining prong. Id. at 697. The appellant bears the burden
of proof on the issue of counsel’s effectiveness, and in Ohio, a licensed attorney is
presumed competent. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905(1999).
Joinder of Indictments
The law favors joining multiple criminal offenses in a single trial.
State v. Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991), citing State v. Lott,
51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). “[J]oinder and the avoidance of
multiple trials is favored for many reasons, among which are conserving time and
expense, diminishing the inconvenience to witnesses and minimizing the possibility
of incongruous results in successive trials before different juries.” State v. Torres,
66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). Pursuant to Crim.R. 13,
“[t]he court may order two or more indictments or informations or both to be tried
together, if the offenses or the defendants could have been joined in a single
indictment or information.”
Pursuant to Crim.R. 8(A), joinder is permitted if the offenses are: (1)
of the same or similar character; (2) based on the same act or transaction; (3) based
on two or more acts or transactions connected together or constituting parts of a
common scheme; or, (4) part of a course of criminal conduct. The defendant bears
the burden of proving that the trial court abused its discretion in denying a motion
to sever and the burden of proving prejudice if joinder has been granted. State v.
Moore, 2013-Ohio-1435, 990 N.E.2d 625, ¶ 23 (7th Dist.), citing State v. Coley, 93
Ohio St.3d 253, 259, 754 N.E.2d 1129 (2001).
A defendant may move to sever trial of joined offenses pursuant to
Crim.R. 14 if he or she can establish prejudice. Lott at id. The state may counter a
claim of prejudice utilizing two methods. First, the state may demonstrate that the
evidence presented at trial for each offense was simple and direct. Moore at id.,citing Coley at id. Failing that, the state must show that all of the evidence presented
at the combined trial would have been admissible in each case if tried separately. Id.If the state can demonstrate that the evidence is simple and direct, then it is not
required to prove the stricter admissibility test. State v. Harris, 7th Dist. Mahoning
No. 13 MA 37, 2015-Ohio-2686, ¶ 29, citing State v. Johnson, 88 Ohio St.3d 95, 109,
723 N.E.2d 1054 (2000).
The crimes charged in both of the two indictments against Burgos-
Delgado were part of a course of criminal conduct. His crimes began on January 7,
2018, when he and Garcia-Rodriguez burglarized Dowell’s home and killed him
under the guise of purchasing marijuana, which they stole during the incident.
Shortly after the incident, an arrest warrant was issued for Burgos-Delgado and on
January 18, 2018, he was arrested on that warrant, during which he was found to be
in possession of drugs that he attempted to destroy. These crimes of January 7 and
January 18 were both drug related and were committed days apart. Further, the
action Burgos-Delgado took of destroying the drugs with his feet during the arrest
on the murder warrant was relevant to his defense in the murder case that he was
disabled and could not have possibly committed Dowell’s murder.
Moreover, the evidence of the crimes in both indictments was simple
and direct. Indeed, Burgos-Delgado concedes the simplicity of the evidence in the
tampering case:
With respect to the charges that were originally the basis of the 2020
indictment (tampering with evidence and drug possession), the facts
were essentially uncontested. Defendant-Appellant was driving a
vehicle that was stopped by the police, arrested on the warrant for the
homicide, and while in the police cruiser, poured a vial of cocaine that
was in his possession out and tried to step on the powder that was
released to the floor.
Appellant’s brief, p. 7.
The evidence in the murder case was likewise simple and direct. E.R.
testified that Burgos-Delgado shot Dowell in the head. The two spent casings at the
scene were determined to have been fired by the same gun that cycled rounds of
ammunition found in Burgos-Delgado’s home. And although Burgos-Delgado
denied being associated with Garcia-Rodriguez in Cleveland, both of their DNA,
along with Dowell’s, were found on a roll of blue duct tape — with the same physical
characteristics as the blue duct tape found at the crime scene — that was recovered
from Burgos-Delgado’s home.
On this record, Burgos-Delgado has failed to demonstrate that his trial
counsel was ineffective for not objecting to the joinder of the two indictments.
Motion to Dismiss
Burgos-Delgado’s second claim of ineffective assistance of counsel is
based on counsel’s failure to file a motion to dismiss the tampering indictment for a
violation of his speedy trial rights. According to Burgos-Delgado, he was arrested
on January 18, 2018, and, thus, by the time of his January 2020 indictment, his right
to a speedy trial had expired. Burgos-Delgado’s contention overlooks that the
January 2018 arrest was not for the tampering case; rather, he was arrested on the
warrant for Dowell’s murder.
To the extent that Burgos-Delgado’s contention is that there was
preindictment delay on the tampering indictment, we note that preindictment delay
violates due process only when it is unjustifiable and causes actual prejudice.
State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 12. The Ohio
Supreme Court has established a burden-shifting framework for analyzing
preindictment delay due process claims. State v. Whiting, 84 Ohio St.3d 215, 217,
702 N.E.2d 1199 (1998). Under this framework, a defendant is first required to
present evidence of actual prejudice; if actual prejudice is established, the burden
shifts to the state to produce evidence of a justifiable reason for the delay. Id.Burgos-Delgado has not claimed, much less demonstrated, that he was prejudiced
by the delay in the filing of the tampering indictment and our review of the record
shows none.
On this record, counsel was not ineffective for not filing a motion to
dismiss.
Testimony from Investigating Detective about Codefendant’s Statement
The police apprehended codefendant Garcia-Rodriguez first. During
Garcia-Rodriguez’s interview with law enforcement he implicated Burgos-Delgado.
As the case proceeded through the pretrial process it became apparent that Garcia-
Rodriguez was not going to be a witness in this case. Thus, the defense filed a motion
in limine to exclude testimony based on statements made by Garcia-Rodriguez. As
grounds for the motion, the defense contended that any such testimony would be
inadmissible hearsay and in violation of Burgos-Delgado’s constitutional right to
confront the witness. After a hearing on the motion in limine, the trial court granted
the motion.
At trial, upon cross-examination of the investigating detective,
defense counsel elicited testimony from him that in his interview of Garcia-
Rodriguez, Garcia-Rodriquez implicated Burgos-Delgado. In Burgos-Delgado’s
third contention of ineffective assistance of counsel, he contends that “[i]n a case
involving largely scientific and circumstantial evidence, this testimony is devasting.
That it was brought forth on cross-examination was ineffective and prejudicial and
should be reversible error.” We disagree.
A review of the record demonstrates that counsel had a change of
mind as to trial strategy regarding the use of Garcia-Rodriguez’s statements to the
investigating detective. Counsel’s questioning of the detective shows that his
strategy was to paint Garcia-Rodriquez as the “first suspect” in the murder of Dowell
and despite him being the first suspect, Garcia-Rodriguez’s home was not searched
as was Burgos-Delgado’s. The implication was that Garcia-Rodriguez “pinned”
Dowell’s murder on Burgos-Delgado. Further, defense counsel implied that the
investigation was incomplete, or even “sloppy,” given that neither the bag of
marijuana stolen from Dowell’s home nor the gun believed to be the murder weapon
were recovered from Burgos-Delgado’s home, but Garcia-Rodriguez’s home was
never searched.
Judicial scrutiny of defense counsel’s performance must be highly
deferential. Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. A court
deciding an ineffectiveness claim must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed at the time of counsel’s
conduct. Id. at 690. For matters “within the ambit of trial strategy,” ineffective
assistance is not demonstrated by “debatable trial tactics.” State v. Conway,
109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101, citing State v. Hoffner,
102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 45 (additional citation
omitted).
On this record, we do not find counsel’s performance deficient.
Further, Burgos-Delgado has failed to demonstrate prejudice; that is, that the result
of the trial would have been different without the testimony. The forensic, direct,
and circumstantial evidence overwhelmingly supports the conviction. We therefore
find no merit to his third contention of ineffective assistance of counsel.
The first assignment of error is overruled.
Consecutive Sentences
On the homicide charges, the trial court sentenced Burgos-Delgado to
life without parole, plus three years on the firearm specification on Count 1,
aggravated murder, and ten years on the remaining counts after merger, to be served
consecutively to each other. The trial court further ordered that the gun
specification on Count 7 be served consecutive to the gun specification on Count 1.
The court did not make consecutive-sentence findings either at the hearing or in its
journal entry.
In his second assignment of error, Burgos-Delgado contends that the
trial court erred in imposing consecutive sentences without making the statutory
findings. Burgos-Delgado concedes that in State v. Campbell, 8th Dist. Cuyahoga
No. 103982, 2016-Ohio-7613, this court held in similar circumstances as presented
in this case that the issue of consecutive-sentence findings is “moot” because it is
purely “academic” given the imposition of a sentence to life without the possibility
of parole. Id. at ¶ 7; see also State v. Chavez, 8th Dist. Cuyahoga No. 99436, 2013-
Ohio-4700, and State v. Herrington, 8th Dist. Cuyahoga No. 106225, 2018-Ohio-
3049. Burgos-Delgado asks us to reconsider this court’s holding in Campbell
because “[i]t is at least possible that at some date in the future, the Legislature may
provide potential relief for those serving sentences of life without the possibility of
parole * * *.” We decline to do so.
Thus, following this court’s precedent, the second assignment of error
is overruled.
Complicity Instruction
The trial court instructed the jury, over the defense’s objection, in
relevant part as to the homicide case, that “[i]t is the contention of the State that the
defendant either committed the offenses charged in the indictment or that he aided
and abetted the person who did directly or personally [commit] the offense.”
In his third assignment of error, Burgos-Delgado contends that “the
instruction should not have been given as the State’s theory of the case was that
Defendant-Appellant was the principal offender.” He argues that “[b]y allowing the
jury to consider a complicity theory which was not part of the indictment in this case
nor presented as evidence to the jury, the opportunity for jury confusion was present
and there was no need for it given the State’s theory of the case.”
The giving of jury instructions is within the sound discretion of the
trial court, and we review it for an abuse of discretion. State v. Jackson, 8th Dist.
Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 42, citing State v. Howard, 8th Dist.
Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35, and State v. Martens, 90 Ohio App.3d
338, 629 N.E.2d 462 (3d Dist.1993).
Under R.C. 2923.03(F), a charge of complicity may be stated in terms
of this section or in terms of the principal offense. As a result, a jury instruction on
complicity is proper as long as “the evidence adduced at trial could reasonably be
found to have proven the defendant guilty as an aider and abettor.” State v.
McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 244.
Here, although the state contended that Burgos-Delgado was the
principal offender in the homicide case and E.R.’s testimony supported that theory,
other evidence could have supported a complicity theory. Namely, the other witness
at the murder scene, Alley, testified that she saw a struggle and heard gunshots, but
she did not testify as to who fired the shots. On this record, the jury could have found
Burgos-Delgado guilty as an accomplice and, therefore, the trial court did not abuse
its discretion in instructing the jury on complicity.
The third assignment of error is overruled.
Playing of 2021 Video Taken by Burgos-Delgado
Over the defense’s objection, the state played a video Burgos-Delgado
made of himself in July 2021. In the video, Burgos Delgado is walking around his
residence. Burgos-Delgado contends that the video, taken in 2021, was not relevant
to his physical status at the time of the homicide, which occurred in 2018. Moreover,
even if it had probative value, according to Burgos-Delgado, the probative value was
outweighed by its prejudicial nature.
Generally, all relevant evidence is admissible. Evidence is relevant
when it has “any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be
without the evidence.” Evid.R. 401. “Under Evid.R. 403(A), ‘[a]lthough relevant,
evidence is not admissible if its probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues, or of misleading the jury.’”
State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 122, quoting
State v. Maag, 3d Dist. Hancock Nos. 5-03-32 and 5-03-33, 2005-Ohio-3761, ¶ 71.
However, “Evid.R. 403(A) does not ‘attempt to bar all prejudicial
evidence.’” State v. Scurlock, 6th Dist. Lucas No. L-5-1200, 2017-Ohio-1219, ¶ 32,
quoting State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23.
“Instead, the rule provides that only unfairly prejudicial evidence is excludable.”
(Emphasis sic.) Scurlock at id., citing Crotts at id.“‘Unfair prejudice is that quality of evidence which might result in an
improper basis for a jury decision. Consequently, if the evidence
arouses the jury’s emotional sympathies, evokes a sense of horror, or
appeals to an instinct to punish, the evidence may be unfairly
prejudicial. Usually, although not always, unfairly prejudicial evidence
appeals to the jury’s emotions rather than intellect.’”
Crotts at ¶ 24, quoting Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 171, 743
N.E.2d 890 (2001), quoting Weissenberger, Ohio Evidence, Section 403.3, at 85-87
(2000).
Generally, the admission or exclusion of evidence lies within the trial
court’s discretion, and a reviewing court should not reverse absent an abuse of
discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-
Ohio-2815, 848 N.E.2d 810, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64, 752
N.E.2d 904 (2001).
The trial court reasoned as follows in allowing the state to present the
video:
We are at the end of a journey that began on January 7th, 2018, and the
visual that the defendant wants to produce is that he is wheelchair
bound. And as [the assistant prosecuting attorney] indicated, he has
been in a wheelchair every day during the course of the trial, the
inference being that he is incapacitated.
We have already seen some video where he’s able to leave the
wheelchair. And the next question is, could he have done this crime?
And I think that the video from 2021 is relevant because it shows that
the condition, which is being inferred, is not permanent, and that the
defendant has the ability to be mobile at such times he deems
necessary.
Tr. 895-896.
We find no abuse of discretion on this record. The record shows that
Burgos-Delgado’s claim of a physical disability dated back to 2018. Specifically,
when he was stopped by police for a traffic violation days after Dowell’s murder,
Burgos-Delgado acted in a manner suggestive of having a physical impairment that
interfered with him walking. Further, when Burgos-Delgado was interviewed by law
enforcement about Dowell’s murder he claimed that he could not have been involved
because of his physical disability. At his December 2021 trial, Burgos-Delgado sat
in a wheelchair, the inference being that he had a physical impairment that made it
difficult or impossible to walk. Thus, the 2021 video was relevant and it was not
unfairly prejudicial.
The fourth assignment of error is overruled.
Merger
At sentencing, the state stated that Counts 5, 6, and 8 of the murder
case should merge. The trial court agreed and did not sentence on those counts.
However, the court’s initial sentencing entry did not reflect the merger. For his final
assignment of error, Burgos-Delgado requests that we order the trial court to issue
a corrected sentencing entry.
After the briefs were filed in this appeal, this court remanded the case
to the trial court for the limited purpose of the court issuing a new sentencing entry
reflecting the merger. See motion No. 561727 (Feb. 6, 2023). The trial court
complied with this court’s mandate and issued a nunc pro tunc sentencing entry on
February 22, 2023.
In light of the above, the fifth assignment of error is overruled as moot.
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 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
________________________
MICHAEL JOHN RYAN, JUDGE
ANITA LASTER MAYS, A.J., and
MARY EILEEN KILBANE, J., CONCUR