State v. Helvey

[Cite as State v. Helvey, 2022-Ohio-98.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-01-008
: OPINION
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:
TAVON LAMAR HELVEY, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2020-03-0498
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee.
Andrew Karas, for appellant.
BYRNE, J.
{¶1} Tavon Lamar Helvey appeals his convictions in the Butler County Common
Pleas Court for multiple firearm-related offenses. For the reasons that follow, we affirm
Helvey's convictions.
I. Facts and Procedural History
{¶2} In June 2020, a Butler County grand jury indicted Helvey on one count each
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of discharging a firearm on or near prohibited premises, felonious assault, weapons under
disability, and improperly handling firearms in a motor vehicle. The indictments stemmed
from allegations that Helvey, a convicted felon, was a passenger in a vehicle that was
chasing another vehicle at high speed through Middletown, and that Helvey emerged from
the vehicle's sunroof and began shooting a firearm at the other vehicle.
{¶3} The matter proceeded to a jury trial. Ronald and Florence Globke testified
that on October 25th, 2019, they were traveling in their vehicle in Middletown and were at
the intersection of Grand Avenue, The Alameda1, and Sutphin Street when they observed
a sport utility vehicle (SUV) traveling at a high rate of speed. They then saw a sedan
following the SUV, also at a high rate of speed. According to Mr. Globke, it appeared that
the sedan was chasing the SUV.
{¶4} Both Globkes testified to observing a person emerge through the sedan's
sunroof with a gun and then fire several shots towards the SUV. The Globkes also observed
a black hat fly off the shooter's head. The Globkes drove over to the hat and parked in front
of it. Mr. Globke explained that he thought the hat would be important and wanted to make
sure that no one drove over the hat. Mrs. Globke then called 9-1-1 and the Globkes waited
for police to arrive.
{¶5} Amy Vitori testified that she was outside her home on Grand Avenue and
Highland Street when she saw two vehicles "racing" up Sutphin Street. The first vehicle
was either a minivan or an SUV, but the second vehicle was a sedan. There was an
individual outside of the sedan's sunroof who had a gun and was firing at the vehicle ahead.
Vitori testified that she "was focused on his face and the weapon." The shooter was an
African American, in his twenties, wearing a black windbreaker. He had "a clean, like,
1 "The Alameda" is a street in Middletown.
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shorter haircut." He also had "the kind of beard along the jawline." He was not heavyset,
but rather he had a "normal, maybe slightly slender build." The gun was a handgun, and
she was "pretty sure" it was silver. The shooter was holding the gun with a "typical grip" on
the handle. She thought she saw something fly off the back of the vehicle that could have
been a hat. Vitori testified that Helvey, whom she observed in the courtroom, looked "very
similar" to the individual she observed.
{¶6} On direct examination, Vitori testified that the individual was a "darker
skinned" African American. On cross examination, defense counsel confronted Vitori on
her description of the shooter's skin color, asking whether she had seen a "dark skinned"
African American. Vitori responded that the skin color she observed was "medium." On re-
direct, she clarified that on the spectrum of very dark skinned to very light skinned African
Americans, this individual was "medium." She further clarified that Helvey's skin color,
observed in the courtroom, was "consistent" with what she observed when she saw the
shooter on October 25, 2019.
{¶7} Police officers testified as to their procedures in recovering the hat and
arranging for it to be transported to the Ohio Bureau of Criminal Investigation ("BCI") for
forensic DNA testing.
{¶8} A police detective testified that in 2015, Helvey was the suspect in a burglary.
In the context of investigating that crime, the detective secured a search warrant and
obtained a DNA or buccal swab from Helvey.
{¶9} Logan Schepeler, a forensic scientist at BCI, testified that he analyzed the
DNA swab taken from the black hat. The analyst who took the swab had swabbed the
entire inside rim of the hat. Schepeler found that the swab contained a mixture of four DNA
profiles. There was one major contributor, which constituted an estimated 90 percent of the
DNA on the swab. The other three contributors were so "minute" that they could not be
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analyzed. Schepeler believed that the amount of DNA recovered on the hat would indicate
that the major DNA profile would be associated with the person who wore the hat more
often than anyone else.
{¶10} Schepeler compared the major profile to Helvey's known DNA standard and
determined it was a match. Schepeler estimated how rare the match would be in the
general population of unrelated individuals and determined it would be rarer than one in
one trillion individuals. On cross-examination, Schepeler admitted that the DNA evidence
did not reveal who among the four DNA sources last wore the hat.
{¶11} The defense rested without submitting evidence. During deliberations, jurors
sent a note to the court. The note indicated that one juror had made a comment about
having seen Helvey "around town," enough to be familiar with his demeanor. The note
asked whether this might prevent Helvey from receiving a fair and impartial trial.
{¶12} The court thereafter questioned the juror who said he had seen Helvey
"around town." The juror clarified that he had seen Helvey but did not know him and that
he had been replying to another juror's comment as to Helvey's demeanor during the trial.
The juror assured the court that he could decide the case fairly and impartially. The court
then individually questioned all of the remaining jurors about what occurred and whether
the juror's remark affected their ability to decide the case fairly and impartially. All jurors
agreed that they could decide the case fairly and impartially.
{¶13} After the court finished interviewing the jurors, Helvey moved for a mistrial.
The court denied the request. Following deliberations, the jury found Helvey guilty of all
counts of the indictment. Helvey was sentenced to a prison term. Helvey appealed,
assigning two errors for our review.
II. Law and Analysis
{¶14} Assignment of Error No. 1:
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{¶15} THE TRIAL COURT ERRED IN DENYING MR. HELVEY'S MOTION FOR
JUDGMENT OF ACQUITTAL PURSUANT TO OHIO R. CRIM. P. 29.
{¶16} Helvey contends that the trial court erred in denying his Crim.R. 29 motion for
acquittal because the state submitted legally insufficient evidence to convict him of all the
offenses. Specifically, Helvey contends that the state submitted insufficient evidence to
allow a rational finder of fact to conclude that the state proved his identity.
A. Standard of Review
{¶17} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own
motion, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or
offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion under the same
standard as that used to review a sufficiency-of-the-evidence claim. State v. Mota, 12th
Dist. Warren No. CA2007-06-082, 2008-Ohio-4163, ¶ 5; State v. Huston, 12th Dist. Fayette
Nos. CA2006-05-021 and CA2006-06-022, 2007-Ohio-4118, ¶ 5.
{¶18} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,
194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency
of the evidence underlying a criminal conviction, an appellate court examines the evidence
to determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-
10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt." State v.
Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. "Sufficiency of the
evidence is a question of law, and the appellate court must be careful in its evaluation of
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the evidence not to substitute its own judgment of witnesses' credibility for that of the trier
of fact." State v. Eacholes, 12th Dist. Butler No. CA2013-11-195, 2014-Ohio-3993, ¶ 29.
B. Sufficiency of the Evidence Supporting Proof of Identity
{¶19} The state is required to prove a perpetrator's identity beyond a reasonable
doubt. State v. Cook, 65 Ohio St.3d 516, 526 (1992). After viewing the evidence in a light
most favorable to the prosecution, we find that a reasonable jury could find that the state
established Helvey's identity beyond a reasonable doubt. Specifically, it was undisputed
that the shooter was wearing a hat on his head, that the hat fell off, that the inside brim of
the entire hat was swabbed, and the resulting swab tested positive for four DNA profiles.
Although the hat contained DNA from multiple sources, there was only one major profile,
which contributed 90 percent of the DNA found. The remaining three sources were so
"minute" that they could not be tested. The major profile was a DNA match to Helvey and
the statistical chances that it could be a match to any other person were approximately one
in a trillion—that is, so unlikely as to be disregarded.
{¶20} In addition to the DNA match evidence, Vitori testified that Helvey looked "very
similar" to the person she saw firing the gun. In this regard, Vitori testified that, during the
event, she was "really focused" on the shooter's face, and she supported this testimony by
providing a significant amount of detail about the shooter: his approximate age (20s), his
race (African American), his hair ("a clean, like, shorter haircut), and his facial hair ("the kind
of beard along the jawline"). She also noticed that the shooter was wearing a black
windbreaker, which she said was blowing in the wind but was "pretty fitted" so the blowing
fabric did not obscure the shooter's body shape or size. Vitori noted that the shooter was
not heavyset, but had a "normal, maybe slightly slender build." Vitori further testified that
Helvey's skin color was consistent with the shooter's skin color. To the extent Vitori was
inconsistent about her description of skin color, this issue was thoroughly examined at trial
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by both sides and goes to the weight to be attributed to Vitori's testimony, not to the
sufficiency of the evidence. See In re Pugh, 12th Dist. Clermont No. CA2000-01-010, 2000
WL 1843220, *3 (Dec. 18, 2000) (inconsistencies in in a witness' statements and testimony
were matters of credibility not relevant to a sufficiency of the evidence review). Helvey did
not bring an assignment of error regarding the weight of the evidence.
{¶21} The DNA evidence, when considered alongside Vitori's testimony concerning
Helvey's appearance, was sufficient evidence to establish identity. And while some
evidence submitted to establish Helvey's identity was circumstantial, circumstantial
evidence has no less probative value than direct evidence. State v. Gragg, 173 Ohio
App.3d 270, 2007-Ohio-4731, ¶ 17 (12th Dist.).
{¶22} Helvey cites two cases from the Tenth and Eighth District Courts of Appeal
for the proposition that in a firearms prosecution, where no eyewitnesses physically
observed the defendant firing a weapon, a verdict can only be sustained if the defendant is
positively identified carrying a gun either moments before or after gunshots are heard. State
v. Whiteside, 10th Dist. Franklin No. 08AP-602, 2009-Ohio-1893, ¶ 31; State v. Jones, 8th
Dist. Cuyahoga No. 108371, 2020-Ohio-3367, ¶ 73-74. However, neither case stands for
the bright-line proposition argued by Helvey. Helvey's argument is essentially that those
cases presented more evidence connecting the defendant to the crime than presented here.
But this argument also goes to the weight of the evidence, not its sufficiency.
{¶23} Helvey also argues that the state's DNA evidence was insufficient because
the hat swab tested positive for three other sources of DNA and because Schepeler
admitted on cross-examination that the prevalence of Helvey's DNA on the hat did not
"speak to the crucial temporal issue of which one of those four persons had most recently
worn the hat." The fact that the hat returned other sources of DNA and that the DNA
evidence could not precisely establish who last wore the hat are, again, arguments that go
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to the weight of the DNA evidence presented, not its sufficiency. The jurors in this case
could, and likely did, weigh the fact of three other sources of DNA against the evidence
showing that 90 percent of the DNA collected matched Helvey's and that the remaining
sources of DNA were so minute as to be incapable of analysis.
{¶24} Finally, in his reply brief, and citing State v. Buckner, 5th Dist. Richland No.
2016 CA 101, 2018-Ohio-233, Helvey claims that when circumstantial evidence is the only
evidence relied upon by the state to prove an element of an offense, then circumstantial
evidence is insufficient as a matter of law unless it precludes all reasonable theories of
innocence. However, the Ohio Supreme Court has rejected that approach to the evaluation
of the sufficiency of circumstantial evidence, holding:
Circumstantial evidence and direct evidence inherently possess
the same probative value. In some instances certain facts can
only be established by circumstantial evidence. Hence, we can
discern no reason to continue the requirement that
circumstantial evidence must be irreconcilable with any
reasonable theory of an accused's innocence in order to support
a finding of guilt. We agree with those courts that have held that
an additional instruction on the sufficiency of circumstantial
evidence invites confusion and is unwarranted. Since
circumstantial evidence and direct evidence are
indistinguishable so far as the jury's fact-finding function is
concerned, all that is required of the jury is that it weigh all of the
evidence, direct and circumstantial, against the standard of
proof beyond a reasonable doubt. Nothing more should be
required of a factfinder.
(Emphasis added.) Jenks, 61 Ohio St.3d at 272.
{¶25} Viewing the evidence in a light most favorable to the prosecution—as we are
required to do when presented with a challenge to the sufficiency of the evidence, Jenks at
paragraph two of the syllabus—we conclude that the state presented sufficient evidence to
permit the jury to find that the state established Helvey's identity. We therefore overrule
Helvey's first assignment of error.
{¶26} Assignment of Error No. 2:
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{¶27} THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION
FOR A MISTRIAL.
{¶28} Helvey next argues that the trial court erred in failing to grant a mistrial where,
during deliberations, a juror shared with other jurors that he had seen Helvey outside of the
courtroom and commented on Helvey's demeanor.
C. Factual Summary of the Juror Issue
{¶29} During deliberations, jurors forwarded the following note to the court:
Juror said during deliberations that he had seen the Defendant
around town enough to make an assumption about his
disposition. We want to check with the Court as to whether this
might prevent a fair and impartial trial.
The jury foreperson subsequently identified Juror 575 as the juror in question. Juror 575
was then individually questioned by the court and counsel. Juror 575 explained that he had
seen Helvey around Middletown but did not know him and had never spoken to him. He
did not realize that he recognized Helvey until after the trial began, when he saw a woman
in the audience who he recalled seeing with Helvey at Walmart.
{¶30} Juror 575 explained that his comment was prompted by another juror who had
made a remark about Helvey's demeanor in the courtroom. Juror 575 had then replied that
Helvey did not look any different to him than when he saw him at Walmart—that is, his facial
expression was the same.
{¶31} When questioned, Juror 575 stated that the fact that he had seen Helvey
before did not give him any impression about Helvey. Juror 575 further assured the court
that he could be fair and impartial in his deliberations and would follow the court's
instructions regarding the law. The prosecutor asked Juror 575 whether the statements he
made about Helvey would prevent him and other jurors from continuing their deliberations,
and Juror 575 stated it would not.
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{¶32} The court then decided to individually question all of the jurors concerning
Juror 575's remark. The jurors each relayed to the court their recollection of the
conversation. One juror recalled that someone "had brought up the Defendant's
demeanor." Another juror remembered someone mentioning that Helvey had appeared
"fairly unemotional " during the trial. Another juror recalled that "[i]t was brought up that the
Defendant was very stoic throughout the trial."
{¶33} According to one juror, Juror 575 then responded by stating, "well, he's always
like that." Another juror recalled Juror 575 having said that Helvey "looks like that all the
time." Another Juror related that Juror 575 said that he looked that way when he had
previously seen him. And another juror stated that Juror 575 said he had seen Helvey and
his girlfriend several times around Middletown, specifically at Walmart.
{¶34} A juror explained that when he heard Juror 575's remarks, it made him
concerned that Helvey might not receive a fair trial because, "I just felt that how [Juror 575]
jumped up and presented himself as that he felt like he knew how the Defendant acted
outside the courtroom, it could allude to a character or how he presents himself."
{¶35} The jury foreperson explained that when Juror 575 made his remarks about
Helvey's demeanor, there were a few jurors who had concerns and that "there was a couple
of us just wanted to make sure that everybody was aware of the situation and had a chance
to just make sure that things were on the up-and-up and that there -- we -- my biggest thing
is just making sure, especially reading through the jury instructions, that we were in fact a
fair and impartial jury."
{¶36} All of the jurors, without reservation, assured the court that, notwithstanding
Juror 575's remarks, they could decide the case fairly and impartially. After the jurors were
sent back, defense counsel explained that he was concerned "with the fact that we have a
juror who * * * had some impression of Mr. Helvey outside of the four corners of this room *
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* *." Counsel subsequently moved for a mistrial. In denying the motion, the trial court
explained
when I received this note, I was concerned as well. I want to
make sure that this is a fair and impartial trial. And I was
particularly concerned about the language, "enough to make an
assumption about his disposition." But now that that's been
fleshed out a little bit more, I feel less concerned about that.
D. Standard of Review
{¶37} A trial court must declare a mistrial only "when the ends of justice so require
and a fair trial is no longer possible." State v. Garner, 74 Ohio St.3d 49, 59 (1995). Pursuant
to Crim.R. 33, a new trial may be granted for any "irregularity in the proceedings * * *
because of which the defendant was prevented from having a fair trial" or due to
"misconduct of the jury."
{¶38} Trial courts have broad discretion in deciding whether to grant a mistrial. State
v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶ 92. Therefore, an appellate court reviews
an order denying a motion for a mistrial for abuse of discretion. State v. Treesh, 90 Ohio
St.3d 460, 480 (2001). To show an abuse of discretion, the defendant must demonstrate
material prejudice. State v. Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, ¶ 198.
E. Whether the Court Erred in Failing to Grant a Mistrial
{¶39} Based upon careful consideration of the record, we conclude that a fair trial
was possible, and therefore Helvey had not demonstrated material prejudice. The comment
by Juror 575 as to Helvey's demeanor was, at worst, neutral. Juror 575's comment implied
nothing about Helvey's character other than he has an unemotional demeanor or facial
expression. At best, the remark could be perceived positively. The statement that Helvey
was "always like that" could communicate to other jurors that Helvey's unemotional
demeanor was normal for him and thus reinforce the fact that Helvey's disposition in the
courtroom was irrelevant.
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{¶40} Every single juror, including Juror 575, reaffirmed that, notwithstanding what
occurred, they could decide the case fairly and impartially. The fact that several jurors felt
it necessary to bring this matter to the court's attention strongly indicated that this was a
conscientious jury that took seriously the importance of deciding the case fairly and
impartially. As specifically stated in the question sent to the court, the jurors simply sought
assurance that what occurred during deliberations would not "prevent a fair and impartial
trial."
{¶41} Finally, the court provided the jurors with a curative instruction:
I want to thank you for bringing to my attention the concern that
you had. And I would ask that if you have any concerns about
anything else as we proceed through these deliberations, that
you continue to bring them to my attention. That is the right
thing to do, and we all want to make sure this is a fair and
impartial jury.
So what I'm going to instruct you is that, again, you are not to
consider anything that is not in evidence. So only the exhibits
that you have received and the testimony on the stand is what
you can consider. So anything else that has been said to you,
I'm ordering you to disregard it and to have no further discussion
about it in your deliberations.
We presume that the jury followed the trial court's instructions and only considered the
evidence properly presented at trial. See State v. Smith, 12th Dist. Fayette No. CA2006-
08-030, 2009-Ohio-197, ¶ 39, 59.
{¶42} Helvey nonetheless argues that Juror 575's remarks caused jurors to be
tainted by an outside influence. In support, he cites State v. Scott, 8th Dist. Cuyahoga No.
53120, 1988 WL 132574 (Dec. 9, 1988). In Scott, the Eighth District Court of Appeals
affirmed a conviction for aggravated murder but reversed a death penalty sentence because
certain jurors had seen a newspaper article discussing the defendant's previous death
sentence conviction. The basis for reversal was that the previous death sentence was an
unindicted aggravating factor, and the court could not say that the jury's exposure to this
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information had not factored in the defendant's death sentence. Id. at *8. The admission
of an inadmissible prior death sentence conviction in a death penalty case cannot be
compared to a largely benign comment on a defendant's demeanor or facial expression.
Scott does not persuade us that we should not presume that the jury followed the trial court's
instructions and instead only considered evidence properly presented at trial.
{¶43} Based on the foregoing, we find that Helvey failed to demonstrate that a fair
trial was no longer possible and therefore failed to demonstrate material prejudice.
Accordingly, we find that the trial court did not abuse its discretion. We therefore overrule
Helvey's second assignment of error.
{¶44} Judgment affirmed.
PIPER, P.J., and M. POWELL, J., concur.
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