State v. Price ( 2023 )

[Cite as State v. Price, 2023-Ohio-3790.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111921
v. :
DEANDRE PRICE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 19, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-655277-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey S. Schnatter and Margaret Graham,
Assistant Prosecuting Attorneys, for appellee.
Russell S. Bensing, for appellant.
LISA B. FORBES, J.:
Deandre Price (“Price”) appeals his convictions for aggravated
murder, murder, and felonious assault, with all counts carrying firearm
specifications. After reviewing the facts of the case and pertinent law, we affirm the
trial court’s decision.
I. Facts and Procedural History
On the night of September 12, 2020, Malik Moore (“Moore”) was shot
nine times in Cleveland Heights and pronounced dead upon his arrival to the
hospital. Police responded to a call of shots fired and recovered 13 shell casings from
the street and yards of two adjacent properties. Several witnesses heard two rounds
of gunshots, separated by a brief pause, and saw a dark-colored car with a distinctive
taillight and a loud exhaust speed away from the scene.
On January 11, 2021, Price and codefendant Quincy Hubbard
(“Hubbard”) were indicted for aggravated murder, murder, and felonious assault.
Codefendant Tyrell Wilkins (“Wilkins”) was indicted for tampering with evidence
and obstructing justice. Wilkins ultimately pled guilty to attempted tampering with
evidence and was sentenced to community-control sanctions.
The case against Price and Hubbard proceeded to trial on May 24,
2022. On June 3, 2022, a jury found Price guilty as charged in the indictment.
Hubbard was found guilty of felonious assault, acquitted of the remaining charges,
and sentenced to 8 to 12 years in prison. In August 2022, the court sentenced Price
to life in prison with parole eligibility after serving 28 years.
Price now appeals, raising two assignments of error for our review.
I. The trial court erred in admitting testimony by a witness that the
victim’s blood was found in the Defendant’s car, and to allow the
witness to testify without stating that his conclusions were to a
reasonable scientific certainty.
II. The Defendant’s conviction was against the manifest weight of
the evidence.
II. Trial Testimony and Evidence
A. Undisputed Facts — For Background and Context
Much of the evidence presented through witness testimony in this
case is undisputed and unchallenged on appeal. The following is a summation of
this testimony to serve as context for Price’s appeal. As stated, several witnesses
consistently testified that they heard shots fired on the night of Moore’s murder and
saw a dark car with atypical taillights and a loud exhaust speed away from the scene.
One witness testified that he saw a “figure move behind the car from the driver’s side
to the passenger’s side.” Witnesses also testified that Price, Hubbard, and Moore
had a history of disagreements dating back to 2014.
Video-surveillance footage from several security cameras in the area
led police to a Dodge Charger registered to Price (the “Charger”). Price was seen in
the video footage entering and exiting local establishments at the same time as
Moore. This took place approximately 6 minutes to 30 minutes before Moore was
murdered. Cell-phone data introduced into evidence showed that Price, Hubbard,
and Jerry Howard (“Howard”) communicated several times on the night in question
around the time Moore was killed. Additionally, some of the communications
between Price and Hubbard on that night had been deleted prior to the authorities
taking possession of Price’s phone.
Forensic evidence showed that all 13 shell casings recovered from the
scene of Moore’s murder, along with seven bullets that were recovered during
Moore’s autopsy, “were fired from the same unknown Glock 9 millimeter caliber
pistol.” Evidence was presented that Price purchased a Glock firearm, along with a
flashlight attachment and ammunition, less than three months prior to Moore’s
murder. Forensic evidence further showed that Moore’s DNA was found on the
driver-side and front-passenger side floor mats of the Charger.
B. Jerry Howard’s Testimony
Howard testified that he is currently incarcerated on federal gun
charges. In September 2020, which was when Moore was killed, Howard was living
with Wilkins and Price. Howard has known Wilkins, Price, and Hubbard for “13
years, since middle school.” Howard testified that he did not know Moore.
According to Howard, he received multiple calls from Price “around
like 9:30, 9:45” on the night of September 12, 2020, while Price was waiting in the
Charger for Hubbard to come out of Hubbard’s house. At the time, Howard was at
his ex-girlfriend’s house. Approximately 20 minutes later, Howard received another
call from Price and Price told him to “get to the house.” Howard testified that Price
was “in distress, like something * * * was going on, like he was in a rush. Like come
on, emergency.” Howard left his ex-girlfriend’s house and started driving toward
his, Price, and Wilkin’s house. On his way, Howard checked his security camera and
saw Price, who was driving his Charger, pull into the driveway. Hubbard was sitting
in the front-passenger seat. Price and Hubbard got out of the car and ran into the
house. When Howard arrived at the house, Price, Hubbard, and Wilkins were
already there. Price told Howard the following “story” of what occurred.
Price saw Moore at a shop on Cedar and Lee Roads in Cleveland
Heights. Price sat in the Charger and waited for Moore to exit the shop. Price called
and picked up Hubbard “so that they could get” Moore. Hubbard drove the Charger,
and they “met” Moore while Moore was walking home.
And as soon as they caught [Moore] [Price] jumped out the car. And
when he jumped out the car, he upped the gun with the flashlight to
blind [Moore]. * * * It was really no talking after that. [Price] pulled
the trigger and shot him as many times — It was rapid fire. * * * He
said that he emptied the clip, but he didn’t say how many times he hit
him.
Howard testified that he had seen this particular gun of Price’s before. It was new,
and it was a “Glock 17 * * * Gen 5.”
Price told Howard that Moore died “[b]ecause of how many times he
shot him.” Howard saw blood on Price’s pant leg and shoes. “[Price] said that after
he shot [Moore], he ain’t know if [Moore] was dead or not, so to make sure that he
was dead he kicked him in the head.” Price and Hubbard then left in the Charger.
At first, Hubbard was driving, but after seeing what Price did to Moore, Hubbard
“couldn’t really move. He said he was in shock, like he was * * * he couldn’t really
drive.” Price told Hubbard to “get out the driver’s seat and let me drive. So they
switched seats before they got to my house.” According to Howard, Hubbard said
that he watched Price kill Moore and “couldn’t really stomach it.” Hubbard “was
confirming everything that [Price] said.” Price still had the Glock with him at the
house, and he gave it to Wilkins and told Wilkins to “get rid of it.”
Howard explained that he got a “sentence reduction” for accepting
responsibility for the federal gun charges and giving “substantial assistance and
cooperat[ing with] an investigation conducted by Cleveland Heights” into Moore’s
murder. However, according to Howard, he was told about the federal sentence
reduction approximately three months after he agreed to cooperate in Moore’s
murder investigation. “Basically in that situation was, they were trying to figure out
what was going on and what the involvement was. And I cleared my name in the
whole situation to let them know what was going on. And once * * * they did that, I
want to say three months after they knew that I was telling the truth, they came and
told me, like, okay, we’re going to go ahead and drop this down for you.” Howard
testified that his federal sentencing range went from “41 to 51 months” to a “31 to
37-month sentence.”
On cross-examination, Howard testified that when he spoke with the
police in September 2020, he told them that he “knew nothing about any
homicides.” Howard admitted that this was not true and testified that his “reason
for doing that” was because he “had no attorney with [him] at the time. * * *
[E]verybody knows you don’t speak to the police without an attorney.” It was not
until December 11, 2020, that Howard agreed to cooperate with the government
regarding Moore’s murder. Additionally, it was not until March 2021 that Howard
entered into a plea agreement in his federal gun case. According to Howard, the
government did not “make any promises” to him in exchange for his cooperation.
Asked if he decided “out of the goodness of your heart, to tell the police the truth,”
Howard responded as follows: “Absolutely. I’m clearing my name. I’m going to clear
my name. I had absolutely nothing to do with that.”
C. Curtiss Jones’s Testimony
Curtiss Jones (“Jones”) testified that he is “the supervisor of the trace
evidence unit at the Cuyahoga County Medical Examiner’s Office.” Jones testified
as follows regarding issues pertinent to Price’s appeal.
The Cleveland Heights Police Department submitted two floor mats
for trace-evidence testing. First was the driver-side floor mat from the Charger.
Jones testified that there was no “visible staining” on this floor mat. “[R]andom
testing across the surface of the floor mat” revealed “a location where there was some
positive presumptive test for blood.” Jones further testified that a “[s]econd
presumptive test” also showed a “reaction” for blood. A “sample was collected from
within that circle and transferred to the DNA unit.”
The second item tested was the front passenger-side floor mat from
the Charger. There was no visible staining, but “random chemical testing of the
surface * * * showed one portion of the surface had positive reaction, presumptively
for blood.” A second presumptive test was “performed on the entire surface, of
which in that same area there was positive reaction.” A “sample was collected and
transferred to the DNA unit.”
Jones testified that no “confirmation” testing was done on the floor
mats after the “presumptive testing for blood.” Jones further explained why:
Typically in samples that aren’t visible — so these are samples that had
tested presumptive positive through randomized testing or through an
overall spray or they’re latent, we can’t see them, we kind of have to
make a decision about what’s best for the sample in terms of — you
don’t know how much is there anyway. So what we typically like to do
is once we have that presumptive positive, we’ll just submit those to the
DNA unit in hopes that they can take whatever amount of sample they
need, and keeping in mind that they have to retain some for future
testing if necessary, in a hope that they can take that sample and get a
DNA profile from that.
Jones further testified that, had he conducted more testing,
the result that we could get would be a forensic confirmation for human
blood. It wouldn’t tell us that it’s absolutely human blood as opposed
to any other material in the world. So the trace evidence unit’s thought
is that it’s best to let DNA get a shot at it in [an] attempt to get a DNA
profile and not consume the sample they may need if they don’t get a
profile, so that’s typically where we just do presumptive and send to
them.
Jones ended his direct-examination testimony by agreeing that his
“conclusions and results” are “to a reasonable degree of forensic science certainty.”
D. Carey Boucher’s Testimony
Carey Boucher (“Boucher”) testified that she is a forensic scientist in
the DNA unit of the Cuyahoga County Regional Forensic Science Laboratory in the
Cuyahoga County Medical Examiner’s Office. Boucher tested two items that “were
transferred from the trace evidence department to the DNA department” and are
pertinent to Price’s appeal. First, she tested “[s]wabs of staining from driver side
floor mat” of the Charger. Second, she tested “[s]wabs of staining from passenger
side floor mat” of the Charger. Boucher also obtained DNA standards for Moore,
Price, Hubbard, and Wilkins.
Boucher testified as follows regarding the swab from driver-side floor
mat: “A likelihood ratio was calculated assuming [this] item * * * contained DNA
from three unknown contributors, [and] a match was identified between [this] item
and * * * Moore.” Boucher also testified that “a match was identified between [the
driver side floor mat swab] and * * * Price.” Furthermore, “[n]o statistical support
for a match was identified between” this floor mat swab and Hubbard or Wilkins.
Boucher testified as follows regarding the front passenger-side floor-
mat swab: “A likelihood ration was calculated assuming [this] item * * * contained
DNA from four unknown contributors. A match was identified between [this] item
and * * * Moore.” Boucher further testified that “due to insufficient genetic
information, match support for * * * Price to [the front passenger-side floor-mat
swab] is inconclusive, and no statistical support for a match was identified between
[this] item * * * and * * * Hubbard * * * or * * * Wilkins.”
After establishing that Moore’s DNA was found on the floor mats of
the Charger, Boucher was next asked about “how DNA can end up on the pieces of
evidence you test.” Boucher explained as follows: “So essentially our whole field is
based on the concept of transfer, that every time you come into contact with a
person, place, thing, you have the opportunity to leave something of yourself
behind.” “Primary transfer” occurs when a person touches something. According
to Boucher, “You’re directly depositing your DNA on it.” “Secondary transfer”
occurs when a person touches something that a second person has previously
touched and then deposits that second person’s DNA onto another surface.
According to Boucher, “[I]f I went to touch something * * * I could possibly deposit
[another person’s] DNA on the next surface that I touched. * * * [The other person]
didn’t directly touch that thing, whatever that second thing I touched is, but perhaps
some of her DNA was left there by me touching it.” Boucher testified that “it’s
possible that you didn’t actually come into contact with a surface, but your DNA
might be found on it.”
Boucher next explained the difference between “touch DNA” and
“bodily fluid DNA.” Touch DNA most often involves skin cells, while bodily fluid
DNA involves substances such as blood or saliva. Boucher further testified as
follows: “So a bodily fluid is going to be more stable and more hardy [sic]. Skin cells
are more susceptible to * * * elements. They can be more easily transferred or
removed potentially by handling. So in general, touch DNA is less stable, shall we
say, than body fluids.”
Boucher further explain that, in addition to touch DNA being
transferrable, bodily fluid DNA can be transferred to an object. “Possibly, if it — yes,
remains on the surface it was transferred to, to be then transferred to the next
surface.” According to Boucher, she is able to conclude that a person’s DNA was
found on a floor mat, but she is not “able to say that person was inside that vehicle.”
The prosecutor next asked Boucher the following hypothetical
question: “If — let’s speak about blood in particular. If somebody has either blood
on their shoes or pants or on their person after they even exited that vehicle, would
that make it more likely that they would have deposited it if that surface came in
contact within that vehicle?” Boucher responded with the following answer: “So if
someone had blood or a bodily fluid on their clothing, got into a car, left it into the
car, and then got out of the car, they would leave it behind.” Boucher further testified
that
it would be easier to leave biological materials such as blood behind if
the surface is wet. That would be an easy transfer. If it’s dry, that’s
possible too. It would be more crumbly in nature than just the direct
easy transfer of a wet stain. But, so if you transferred blood, however
mode that may be, then you would — you may still have some on your
clothing to then leave the vehicle or leave whatever object you were in
contact with.
The prosecutor next asked Boucher another hypothetical question:
Q: If a person were to come in contact with * * * Moore’s blood outside
of the vehicle with his foot by kicking him, * * * picking up some of his
blood, and [this person] got into the passenger side of a vehicle, would
that be a reasonable explanation for why * * * Moore’s blood is found
inside of * * * Price’s vehicle on the floor mat in the passenger side?
***
A: Yes, that could be an explanation.
Q: And if the individual who kicked * * * Moore were to switch and
then begin driving the vehicle, would that be a reasonable explanation
for why * * * Moore’s blood is found both on the passenger side and the
driver side?
***
A: Yes, that could be an explanation.
***
Q: The conclusions you found and you testified to, are they to a
reasonable degree of medical certainty or scientific certainty?
A: Yes. All of our conclusions in our reports are based on our standard
operating procedures, yes.
Q: And the answers to my hypotheticals I asked you, are they based on
all of your training and experience and knowledge of DNA?
A: Yes.
On cross-examination, Price’s defense counsel asked Boucher if she
tested any of the evidence for blood. Boucher answered that she did presumptive
testing for blood regarding the swabs taken from Moore’s hands, but “[n]one of the
other] evidence items that I did DNA testing on did I do any presumptive test for the
presence of blood.” Boucher testified that “whether it is saliva, whether or not it’s
skin cells or any other genetical material,” she tests for DNA. “I can’t tell you in a
sample, in a mixture, what specifically the DNA is coming from * * *.”
Price’s defense counsel also asked Boucher about numerous
hypothetical scenarios concerning how a person’s DNA might end up on an object
that they did not touch. For example, defense counsel asked Boucher the following
questions: “Now, when we talk about transfer DNA, there are a number of scenarios
that can be painted — when I say painted, that could happen — that could cause the
presence of DNA being found in an area in which evidence is collected?”; “And in a
mixture itself, hypothetically a person whose standard is, quote, unknown, could
deposit DNA of someone else in that mixture that could be identified; would that be
fair?”; and “[T]heoretically an object, for instance, a shoe can — something from a
shoe can be transferred to another object. That’s possible?” In general, Boucher
answered that all of these defense-posed hypotheticals were possible.
On redirect examination, Boucher testified that, regarding the swabs
taken from the Charger’s floor mats, “there is support that whatever was swabbed,
there was some blood there. There was support for that based on that presumptive
test” administered by Jones in the trace evidence unit.
III. Law and Analysis
A. Admission of Evidence
“The admission or exclusion of relevant evidence rests within the
sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d
343 (1987). A trial court abuses its discretion when its decision ‘“is unreasonable,
arbitrary or unconscionable.”’ Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144(1980). The Ohio Supreme Court recently explained that an abuse of discretion
“involves more than a difference in opinion * * *.” State v. Weaver, Slip Opinion
No. 2022-Ohio-4371, ¶ 24. That is, a trial court’s judgment that is “profoundly and
wholly violative of fact and reason” constitutes an abuse of discretion. Id.Pursuant to Evid.R. 401, relevant evidence is “evidence having 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.” Relevant evidence is not admissible, however, “if its probative value
is substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.” Evid.R. 403(A). “Where evidence has been
improperly admitted in derogation of a criminal defendant’s constitutional rights,
the admission is harmless ‘beyond a reasonable doubt’ if the remaining evidence
alone comprises ‘overwhelming’ proof of defendant’s guilt.” State v. Williams, 6
Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983).
1. The Victim’s Blood and DNA Evidence
In the first part of Price’s first assignment of error, he argues that it
was improper for the prosecutor to refer to the “stains” on the Charger’s floor mats
as “blood” during Boucher’s testimony, because “there was no factual basis * * * that
the DNA sample taken from the floor mats was blood.” Price further argues that this
testimony should not have been admitted at trial.
Evid.R. 705 states in part that an “expert [witness] may testify in
terms of opinion or inference and give the expert’s reasons therefor after disclosure
of the underlying facts or data.” Evid.R. 703 states that the “facts or data in the
particular case upon which an expert bases an opinion or inference may be those
perceived by the expert or admitted in evidence at the hearing.”
To support his argument on appeal, Price cites to Armbruster v.
Hampton, 9th Dist. Lorain No. 05CA008716, 2006-Ohio-4530. In Armbruster, our
sister court found that the trial court acted within its discretion when it excluded “a
mere conclusory opinion statement from [the expert witness’s] report without any
disclosure of the underlying facts or data.” Id. at ¶ 73. The Armbruster Court
concluded that the “appellant failed to comply with the mandates of Evid.R. 705 and
lay a proper foundation for the admission of [the expert’s] testimony.” Id.
Price also relies on this court’s holding in Werchola v. Premier Mfg.
Corp., 8th Dist. Cuyahoga No. 37021, 1978 Ohio App. LEXIS 10244, 7 (Apr. 13,
1978), that expert testimony was inadmissible when “there [was] no testimony by
which to support * * * a two-hour exposure by the claimant to noxious carbon
monoxide.” The Werchola Court reasoned that “the hypothesis upon which an
expert witness is asked to state an opinion must be based upon facts within the
witness’ own personal knowledge or upon facts established by the evidence.” Id.Armbruster and Werchola involve situations where the proponent of
expert evidence failed to lay a proper foundation. In other words, no foundational
evidence was introduced at trial to support the particular opinion testimony of an
expert witness. That is simply not the situation in the case at hand. Extensive
foundational testimony was introduced at Price’s trial regarding DNA evidence in
general and Moore’s DNA that was found on the Charger’s floor mats.
The record shows, and Price concedes on appeal, that Jones testified
that two presumptive tests were positive for blood, but “no confirmatory test was
done.” Furthermore, Howard testified that he saw blood on Price’s shoes and pants,
and Price told Howard that he kicked Moore in the head after he shot Moore to make
sure Moore was dead.
Boucher testified that swabs taken from staining found on the driver-
side and front-passenger side floor mats of the Charger contained evidence of
Moore’s DNA. The bulk of Boucher’s testimony concerned DNA evidence, and it
goes unchallenged that Boucher was qualified under Evid.R. 702 to testify as an
expert witness in the area of DNA evidence. Boucher testified that regardless of the
substance she tests, her testing concerns DNA, which can be extracted from the
simple “touch” of a surface or from various bodily fluids.
Furthermore, evidence presented at trial established a “presumption”
that the swabs taken from the floor mats in the Charger contained blood. Boucher’s
testimony regarding the “blood” found on the floor mats was consistent with this
presumption that the swab of the floor mat contained blood.
Accordingly, we cannot say that the trial court abused its discretion
in allowing questions that the prosecutor asked Boucher about the “blood” on the
floor mats that contained Moore’s DNA.
2. Expert Witnesses and Hypotheticals
In the final part of Price’s first assignment of error, he argues that
Boucher’s testimonial responses to the prosecutor’s hypothetical questions were not
“made to a reasonable scientific certainty.”
Evid.R. 702(C) states that expert-witness testimony must be “based
on reliable scientific, technical, or other specialized information.” See also State v.
Jackson, 92 Ohio St.3d 436, 448, 751 N.E.2d 946 (2001) (“An expert opinion is
competent if it is held to a reasonable degree of scientific or medical certainty.”);
State v. Samuels, 8th Dist. Cuyahoga Nos. 81333 and 81334, 2003-Ohio-2865, ¶ 24.
Furthermore, Evid.R. 705 states in part that expert testimony “may be in response
to a hypothetical question * * *.”
According to Boucher, the conclusions that she testified to were made
to a reasonable degree of scientific certainty. This is proper under Evid.R. 702(C).
The prosecutor additionally asked Boucher the following question: “And the
answers to my hypotheticals I asked you, are they based on all of your training and
experience and knowledge of DNA?” Boucher answered, “Yes.” The phrasing in this
question is grounded in Evid.R. 702(B), which states that a “witness is qualified as
an expert by specialized knowledge, skill, experience, training, or education
regarding the subject matter of the testimony * * *.” Nothing in this colloquy leads
us to conclude that Boucher’s answers to the prosecutor’s hypothetical questions
were not based on her reasonable degree of scientific certainty. In other words,
Evid.R. 702(B) and 702(C) are not mutually exclusive — as long as expert-witness
testimony is based on reliable scientific information, it can also be based on
specialized knowledge, skill, experience, training, or education.
Upon review, we find that the court acted within its discretion
regarding the admissibility of the prosecutor’s hypotheticals and Boucher’s answers.
Accordingly, Price’s first assignment of error is overruled.
B. Manifest Weight of the Evidence
1. Standard of Review
In his second assignment of error, Price first argues that an “appellate
court in a manifest weight review should not defer to the jury’s findings of
credibility.” Specifically, Price argues that an “appellate court will never disagree
with the fact-finder’s resolution of the conflicting testimony if it invariably defers to
the fact-finder’s resolution of the conflicting testimony.” The entirety of Price’s
argument that his conviction was against the manifest weight of the evidence
follows:
Price’s conviction hinged almost entirely on the testimony of Jerry
Howard. Howard had admittedly lied to the police when he was first
interviewed on September 20, 2020. He came forward only in the
hopes of ameliorating the sentence in his Federal case. His testimony
about the conversation with Price was not corroborated by Wilkins,
who had the same motive to testify — mitigation of his sentence for
tampering — as did Howard.
The police never located the gun that was supposedly used in the
shooting, and frankly admitted that they could not discern a motive for
Price’s killing of Moore. In viewing the totality of the evidence, it
manifestly did not support Price’s conviction.
A manifest-weight-of-the-evidence challenge “addresses the
evidence’s effect of inducing belief. * * * In other words, a reviewing court asks
whose evidence is more persuasive — the state’s or the defendant’s?” State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “When 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 the ‘thirteenth juror’ and
disagrees with the factfinder’s resolution of the conflicting testimony.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Reversing a conviction
under a manifest weight theory “should be exercised only in the exceptional case in
which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
The jury found Price guilty of the following offenses with firearm
specifications. R.C. 2903.01(A), which governs aggravated murder, states that “[n]o
person shall purposely, and with prior calculation and design, cause the death of
another * * *”; R.C. 2903.02(B), which governs murder, states that “[n]o person
shall cause the death of another as a proximate result of the offender’s committing
* * * an offense of violence that is a felony of the first or second degree * * *”; and
R.C. 2903.11(A)(1), which governs felonious assault, states that “[n]o person shall
knowingly * * * [c]ause serious physical harm to another * * *.” Price’s felonious
assault conviction is a second-degree felony.
2. Manifest Weight in the Case at Hand
Upon review, we find that the following evidence presented at trial
weighs in favor of Price’s convictions. Video-surveillance footage put Price in the
same area as Moore immediately prior to Moore’s murder. Witness testimony
established that Moore, Price, and Hubbard had a history of disagreements.
Witness testimony also established that multiple shots were fired and a car matching
the Charger’s description sped away from the scene. Forensic evidence showed that
Moore’s DNA was found on the Charger’s floor mats. Howard testified that Price
admitted that he and Hubbard followed Moore when Moore was walking home.
Howard further testified that Price admitted he shot Moore multiple times and
kicked Moore to make sure he was dead. Howard saw blood on Price’s pant legs and
shoes. Howard also testified that Price told him he both drove the Charger and sat
in the front-passenger seat of the Charger immediately after Price murdered Moore.
Howard’s detailed testimony is corroborated by the forensic and
video evidence introduced at Price’s trial. Price’s argument that Howard’s testimony
was not corroborated by Wilkins’s testimony is not well-taken because Wilkins did
not testify at Price’s trial. Price’s argument that the police could “not discern a
motive for Price’s killing of Moore” is also not well-taken. First, “motive” is not an
element of aggravated murder, murder, or felonious assault. Second, testimony at
trial established that Price, Moore, and Hubbard had a history of disagreements.
It is true that, in September 2020, Howard told the police that he did
not know anything about Moore’s murder, and in December 2020, Howard told the
police a detailed accounting of Moore’s murder based on what Price told Howard
immediately after the murder. It is also true that, in March 2021, Howard entered
into a plea agreement in his federal case, in which he received a “substantial
assistance reduction” of his sentence in exchange for his agreement to “cooperate
fully * * * in any state or local authorities in investigations and prosecutions * * *.”
Additionally, it is true that the police did not locate the murder
weapon in this case. However, evidence in the record established that, under Price’s
instructions, Wilkins got rid of the gun Price used to kill Moore.
We cannot say that the evidence presented at Price’s trial weighs
heavily in favor of reversal. Rather, the overwhelming evidence supports Price’s
convictions. “[T]he weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of facts.” State v. DeHass, 10 Ohio St.2d 230,
231, 227 N.E.2d 212 (1967). “Murder convictions can rest upon circumstantial
evidence. * * * Indeed, circumstantial evidence may be more certain, satisfying and
persuasive than direct evidence.” State v. Richey, 64 Ohio St.3d 353, 363, 595
N.E.2d 915 (1992). This is not the exceptional case where the jury clearly lost its way
and created a manifest miscarriage of justice. Accordingly, Price’s second
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.
LISA B. FORBES, JUDGE
MICHELLE J. SHEEHAN, P.J., and
MARY J. BOYLE, J., CONCUR