State v. Alexander

[Cite as State v. Alexander, 2018-Ohio-1433.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 16 MA 0113
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
THEODORE ALEXANDER )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 13 CR 1154
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. John P. Laczko
3685 Stutz Drive, Suite 100
Canfield, Ohio 44406
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: April 12, 2018
[Cite as State v. Alexander, 2018-Ohio-1433.]
WAITE, J.
{¶1} Appellant Theodore Alexander was convicted of murder and felonious
assault following a jury trial in the Mahoning County Court of Common Pleas. The
charges stem from an incident that occurred on September 29, 2013, after the body
of Ivan West (“West”) was found dead from a stab wound to the chest in the dining
room of Appellant’s apartment.
{¶2} Appellant timely raises two assignments of error on appeal. First, he
alleges that statements he made to the police on the night of the incident and on
October 22, 2013 should have been suppressed since he did not knowingly,
voluntarily or intelligently waive his Miranda rights. Second, Appellant alleges that his
convictions were not supported by sufficient evidence and were against the manifest
weight of the evidence. The record reflects that Appellant’s statements to the police
were made after he executed a form waiving his Miranda rights and that Appellant
acknowledged he understood the rights he was waiving. Further, the state presented
sufficient evidence that Appellant committed murder and the manifest weight of the
evidence established beyond a reasonable doubt that Appellant committed the
offenses for which he was convicted. Accordingly, his arguments on appeal lack
merit and are overruled. The judgment of the trial court is affirmed.
Factual and Procedural History
{¶3} At 1:19 a.m. on September 29, 2013, Youngstown Police Department
Officer Anthony Congemi (“Congemi”) responded to a report that there had been a
stabbing at 107 Hilton Avenue in Youngstown. Congemi proceeded to the address,
the upper floor of a duplex, where he found West lying face down on the dining room
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floor. West appeared to be alive when Congemi arrived. Appellant and his neighbor,
Mario Townsend (“Townsend”) were also present in the apartment. Congemi
determined that Appellant resided at the apartment. Emergency services arrived and
Congemi and another officer, Anthony Marzullo (“Marzullo”), began to process the
crime scene. A call was also placed to Detective Sergeant Ronald Rodway
(“Rodway”), who was assigned to investigate the incident. When Rodway arrived at
the scene he spoke to Appellant. Appellant told Rodway that he heard a knock at his
downstairs door. Answering the knock, he saw West, whom he knew, at the door.
West was holding his chest but did not speak. After they walked upstairs, West
informed Appellant he had been stabbed “down the street” and then collapsed on the
dining room floor. Appellant went next door to get his neighbor, Townsend, who
instructed Appellant to call 911. Townsend and Appellant proceeded back to
Appellant’s dining room and awaited the arrival of emergency services. Appellant
indicated to Rodway that before the stabbing occurred, he had not seen West for a
week.
{¶4} Rodway also spoke to Townsend and Cathy Howell (“Howell”),
Appellant’s girlfriend who also resided at the apartment. Townsend confirmed that
Appellant had come to his apartment looking for help. Contrary to Appellant’s
statement, however, Howell told Rodway that West had been at the apartment just
two days earlier.
{¶5} Rodway testified that due to the conflicting statements as to when
Appellant had last seen West, and Appellant’s nervous appearance at the scene, he
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asked Appellant to accompany him to the police station to make a formal statement.
During this second interview, Appellant told Rodway that once he and West walked
up to the dining room together, West took off his shirt before he collapsed on the
floor. Appellant went into his bathroom and got dressed before going to Townsend’s
apartment for help. When Appellant and Townsend came back to the apartment,
West appeared to still be alive. Appellant then said that West may have spent the
night at his apartment two days earlier, but Appellant was not sure because he was
staying at another house in the neighborhood, putting up drywall. Rodway asked for
information about the homeowners of this property so that they could be interviewed.
Appellant stated that he did not want to give this information, because he did not
want these homeowners to become involved. After being pressed further by Rodway
for the information, Appellant changed his story, now saying that he was home on the
night that Howell told police West spent the night, but that he was in the other
bedroom with his girlfriend and did not know for sure whether West was there.
{¶6} On October 22, 2013, Appellant was summoned to the Youngstown
Police Department for a third interview with Rodway. During this interview, Appellant
told Rodway that after West arrived at his apartment, he sent West upstairs alone
while he went to Townsend’s apartment for help. When Appellant arrived back at his
apartment with Townsend, they found West lying on the dining floor with his shirt off,
bleeding but apparently still alive. Appellant stated at this interview that West never
told him that he had been stabbed, but Appellant noticed West was holding his chest
when he arrived.
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{¶7} On October 31, 2013, Appellant was charged with two counts of murder
and one count of felonious assault. On December 10, 2014, Appellant’s counsel filed
a motion to suppress, seeking to suppress four separate pieces of evidence: (1) the
statements Appellant made to police officers on September 29, 2013 and October
22, 2013; (2) evidence collected from Appellant’s apartment on the night of the
incident; (3) evidence obtained from Appellant’s shirt which was seized from
Appellant on the night of the incident; and (4) evidence obtained from a search of
Appellant’s cell phone.
{¶8} A hearing on the motion to suppress was held on April 2, 2015. The
trial court ordered both parties to file post hearing memorandums. The trial court
denied all of the requests with the exception of the request to suppress evidence
from Appellant’s cell phone. Following a jury trial, Appellant was convicted of murder
in violation of R.C. 2903.02(B) and felonious assault in violation of R.C.
2903.11(A)(2), a felony of the second degree. The trial court merged the counts and
sentenced Appellant to a prison term of fifteen years to life.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE
PREJUDICE OF APPELLANT AND VIOLATED HIS RIGHT TO DUE
PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT BY
OVERRULING APPELLANT'S MOTION TO SUPPRESS AND
ADMITTING INTO EVIDENCE APPELLANT'S STATEMENTS GIVEN
TO POLICE ON SEPTEMBER 29, 2013, AND OCTOBER 22, 2013.
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{¶9} Appellant’s first assignment of error addresses the trial court’s failure to
grant his motion to suppress as it relates to the interviews conducted by police on
September 29, 2013 and October 22, 2013. Appellant asserts that the state failed to
establish that he possessed a full awareness of his Miranda rights, or of the
consequences of waiving those rights, prior to speaking with police.
{¶10} The hearing on the motion to suppress was held on April 2, 2015. The
trial court denied all of Appellant’s requests to suppress evidence with the exception
of the evidence retrieved from his cell phone. Testimony was provided by Rodway.
Two written Miranda waivers were admitted into evidence at the hearing. Rodway
testified about obtaining a search warrant and providing Appellant with Miranda
warnings before each interview. The court held that based on the totality of the
circumstances, Appellant knowingly waived his Miranda rights prior to making his
statements to the police on September 29, 2013 and October 22, 2013. While the
trial court concluded that all of the evidence gathered from Appellant’s apartment,
including Appellant’s shirt, was properly obtained by the police through valid
searches, because the police lacked probable cause to search his phone any
evidence resulting from the cell phone search would be suppressed.
{¶11} An appellate court review of a ruling on a motion to suppress involves
mixed questions of law and fact. “In a hearing on a motion to suppress evidence, the
trial court assumes the role of trier of fact and is in the best position to resolve
questions of fact and evaluate the credibility of witnesses.” State v. Venham, 96 Ohio
App.3d 649, 653, 645 N.E.2d 831 (1994). We must accept the trial court’s findings
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as true if they are supported by competent, credible evidence. State v. Winand, 116
Ohio App. 3d 286, 288, 688 N.E.2d 9 (7th Dist.1996), citing Tallmadge v. McCoy, 96
Ohio App. 3d 604, 608, 645 N.E.2d 82 (9th Dist.1994). Thereafter, an appellate court
must independently determine whether the facts satisfy the applicable legal standard.
State v. Williams, 86 Ohio App. 3d 37, 41, 619 N.E.2d 1141 (4th Dist.1993), overruled
on other grounds as stated in Village of McComb v. Andrews, 3d Dist. No. 5-99-41,
2000-Ohio-1663 (Mar. 22, 2000).
{¶12} A review of the record reveals that it contains Miranda waivers signed
by Appellant on September 29, 2013 and again on October 22, 2013. Despite the
undisputed existence of these signed waivers, Appellant argues that the statements
he made to the police should be suppressed. Appellant argues that waiver of his
Miranda rights could not have been voluntary for three reasons: (1) Appellant was
under the influence of alcohol on the night of the incident; (2) Appellant was
inappropriately transferred from jail on October 22, 2013 for the interview with
Rodway, because he had not asked to speak with Rodway; and (3) the police video
of this interview contains no discussion about Appellant’s decision to waive his
Miranda rights, but only about whether he understood those rights.
{¶13} A suspect’s waiver of his right not to incriminate himself must be made
voluntarily, knowingly and intelligently. State v. Shakoor, 7th Dist. No. 01 CA 121,
2003-Ohio-5140, ¶ 18, citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966). The record reveals that Appellant executed a written waiver of
his Miranda rights on both September 29, 2013 and October 22, 2013. “[E]vidence of
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a written waiver form signed by the accused is strong proof that the waiver is valid.”
State v. Eley, 77 Ohio St. 3d 174, 178. 672 N.E.2d 640 (1996).
{¶14} “A suspect’s decision to waive his privilege against self-incrimination is
made voluntarily absent evidence that his will was overborne and his capacity for
self-determination was critically impaired because of coercive police conduct.” State
v. Otte, 74 Ohio St. 3d 555, 562, 660 N.E.2d 711 (1996), citing Colorado v. Connelly
479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). Evidence of coercive
police activity is a necessary predicate to finding that a confession is not voluntary
pursuant to Miranda. Connelly, supra.
{¶15} A trial court must consider the totality of the circumstances in making a
determination as to whether the defendant has validly waived his Miranda rights.
State v. Edwards, 49 Ohio St. 2d 31, 358 N.E.2d 1051 (1976), judgment vacated on
other grounds, 438 U.S. 911, 98 S. Ct. 3147, 57 L. Ed. 2d 1155 (1978). The totality of
the circumstances includes the age, mentality, and prior criminal experience of the
accused; the length, intensity, and frequency of interrogation; whether any physical
deprivation or mistreatment existed; and the existence of threat or inducement. Id.
{¶16} Appellant contends there was evidence that he was under the influence
of alcohol on the night of the incident. He states that he consumed two beers before
the incident, and that his physical appearance in the videotaped interview lends
credence to his claim that he was intoxicated. He claims that because he was
intoxicated, he could not have validly waived his Miranda rights. This Court has held
that the mere presence of drugs or alcohol in a person’s system will not, in itself,
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render a confession inadmissible. State v. Foden, 7th Dist. No. 08 CO 44, 2009-
Ohio-6532, ¶ 22. Evidence must be presented that drugs or alcohol “sufficiently
impaired the confessor’s ability to reason.” Id.
{¶17} Appellant’s assertion that he was sufficiently impaired by alcohol on the
night of the incident is not borne out by the evidence in the record. There was no
testimony at either the suppression hearing or at trial that Appellant was under the
influence of drugs or alcohol. Three police officers testified at trial. None of them
were asked on direct or cross-examination about Appellant’s appearance or whether
he appeared to be under the influence of drugs or alcohol. There is nothing in the
record to indicate that Appellant consumed any alcohol on the night in question which
might impair his ability to waive his Miranda rights.
{¶18} Appellant contends his second Miranda waiver was invalid because
when he was summoned for a second interview with Rodway, while he was
admittedly read his Miranda rights, there “were no safeguards herein to insure
Appellant comprehended those rights or validly waived them.” (8/22/17 Appellant’s
Brf., p. 8.) He appears to complain that he was compelled to speak to police,
because he was taken to see Rodway and had not first voluntarily asked to speak
with Rodway. Appellant presents no evidence that the signed waiver executed by
him on either September 29, 2013 or October 22, 2013 was obtained by use of any
coercive police activity. Appellant does not cite to anything in the record which may
indicate that the police engaged in any activity that could be deemed coercive.
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{¶19} Rodway’s testimony at the suppression hearing was virtually identical to
his testimony. A review of his testimony reveals that Appellant made the statements
he sought to suppress during three different conversations with Rodway. Rodway
testified that Appellant gave him three different variations of the incident in each of
the interviews. Rodway testified that since Appellant’s comments to him at the scene
appeared to differ from those of his live-in girlfriend, he elected to have Appellant
come to the station that night to give a formal statement. (6/28/16 Tr., p. 342.) Also,
at the scene Appellant told Rodway that he had not seen West in a week. Howell
stated that West had been at the apartment two days earlier.
{¶20} Rodway testified that prior to the interview at the police station on the
night of the incident, Appellant was read his Miranda rights and that Appellant agreed
to talk with police officers. (6/28/16 Tr., p. 350.) Appellant does not dispute this
evidence. Nor does he dispute that he signed a written waiver of his Miranda rights
that night before providing his statement to the police. Appellant changed his story
during his second interview with regard to when he last saw West.
{¶21} Rodway testified that he interviewed Appellant again on October 22,
2013 at the Youngstown police station. Rodway again read Appellant his Miranda
rights and Appellant again agreed to talk to him. Appellant does not contest this
evidence or that he executed a second written waiver of his Miranda rights. During
this third encounter, Appellant changed his story again regarding how the events
transpired on the night of the incident.
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{¶22} The trial court clearly believed Rodway’s testimony at the suppression
hearing was credible. There was no conflicting evidence presented. Rodway’s
testimony at the suppression hearing was the same as his trial testimony. Based on
the record before us, the trial court committed no error in refusing to grant Appellant’s
motion to suppress his statements to police. Appellant’s first assignment of error
lacks merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER
THE FOURTEENTH AMENDMENT DUE TO THE FACT HIS
CONVICTIONS FOR MURDER AND FELONIOUS ASSAULT WERE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE
JURY'S VERDICT WAS INCONSISTENT WITH THE EVIDENCE AND
TESTIMONY PRESENTED AT TRIAL.
{¶23} Appellant appears to argue both sufficiency and manifest weight of the
evidence in his second assignment in that he mentions both.
{¶24} Sufficiency of the evidence is a legal question dealing with adequacy.
State v. Pepin–McCaffrey, 186 Ohio App. 3d 548, 2010-Ohio-617, 929 N.E.2d 476,
¶ 49 (7th Dist.), citing State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541
(1997).
{¶25} “Sufficiency is a term of art meaning that legal standard which is applied
to determine whether a case may go to the jury or whether evidence is legally
sufficient to support the jury verdict as a matter of law.” State v. Draper, 7th Dist. No.
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07 JE 45, 2009-Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124
N.E.2d 148 (1955). To discharge the state's burden when prosecuting a criminal
offence, “ ‘probative evidence must be offered’ on ‘every material element which is
necessary to constitute the crime.’ ” State v. Billman, 7th Dist. Nos. 12 MO 3, 12 MO
5, 2013-Ohio-5774, ¶ 8, citing State v. Martin, 164 Ohio St. 54, 57, 128 N.E.2d 7
(1955). In a sufficiency review, a reviewing court does not determine “whether the
state's evidence is to be believed, but whether, if believed, the evidence against a
defendant would support a conviction.” State v. Rucci, 7th Dist. No. 13 MA 34, 2015-
Ohio-1882, ¶ 14, citing State v. Merritt, 7th Dist. No. 09 JE 26, 2011-Ohio-1468, ¶ 34.
{¶26} Appellant was convicted of violating both R.C. 2903.02(B) and R.C.
2903.11(A)(2). R.C. 2903.02(B) states: “No person shall cause the death of another
as a proximate result of the offender’s committing or attempting to commit an offense
of violence that is a felony of the first or second degree.”
{¶27} R.C. 2903.11(A)(2) provides in relevant part that:
No person shall knowingly do either of the following:
***
(2) Cause or attempt to cause physical harm to another or to another’s
unborn by means of a deadly weapon or dangerous ordnance.
{¶28} Appellant contends the state failed to present sufficient evidence at trial
showing that he committed the offense. He complains that only circumstantial
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evidence was presented, but no direct eyewitness or other direct evidence to link
Appellant to this crime.
{¶29} The state highlights the testimony from a number of police officers that
were present at the scene and assisted in conducting the investigation. Marzullo and
Congemi both testified that they conducted a thorough search of Appellant’s
residence including the exterior and stairwell, looking for blood evidence with which
to corroborate Appellant’s account that West told him he was stabbed elsewhere.
Rodway testified that the area outside was “very well lit” on the night of the incident
and no blood evidence was found outside or in the stairwell. (Tr., p. 344.) The only
blood evidence that was found was located in Appellant’s dining area and the kitchen
sink near where West’s body was found. (Tr., p. 212.) Marzullo testified that a
number of knives were discovered in Appellant’s apartment, including a knife in the
kitchen sink which appeared to have a number of blood droplets nearby, a knife in
one bedroom of Appellant’s apartment, and a third in a second bedroom.
{¶30} Andrea Weisenburger, a forensic scientist assigned to the case,
testified that she analyzed two of the knives and a swab of the blood from the kitchen
sink area. She also had DNA standards from both West and Appellant. The kitchen
knife blade results were inconclusive, because there was insufficient DNA for testing.
The DNA profile on the kitchen knife handle was consistent with Appellant’s DNA
profile. (Tr., pp. 322-323.) West’s DNA profile was excluded from the handle of the
kitchen knife and from a knife found in one of the bedrooms. (Tr., pp. 330-331.)
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{¶31} Rodway testified that he spoke with Appellant on three occasions. The
first was at the scene, where Appellant gave information as to when he last saw West
that differed from the information provided by his neighbor and from his live-in
girlfriend. For that reason, Rodway conducted a formal interview at the station.
Appellant’s story at the station changed in regard to when he last saw West and also
as to how the events unfolded at the scene. Appellant originally stated that West
showed up at his door claiming to be stabbed in the street and that he had not
previously seen West in a week. Appellant and West walked upstairs together where
West took off his shirt and collapsed on the floor. Appellant said he then went to get
Townsend for help. During the second interview, Appellant stated that West
appeared at his door but said nothing. The two went upstairs together where West
took off his shirt and collapsed on the floor. Appellant went to the bathroom to
change and then went to get Townsend.
{¶32} We note that this second statement of events differs only slightly to the
information provided at the scene. However, when confronted by Rodway during the
interview with information that Appellant may have seen West only a few days prior to
the incident, rather than a week as Appellant earlier stated, Appellant said that he
had been drywalling someone’s house and did not know whether West had made an
overnight stay at Appellant’s home. When questioned about contact information for
the homeowners for whom Appellant was allegedly hanging drywall, Appellant initially
refused to answer, saying he wanted to avoid getting those individuals involved.
Appellant then changed his story again, dropping his story about drywalling and now
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saying that West may have made an overnight visit to Appellant’s home a few days
earlier, but Appellant had stayed in his bedroom and did not see West.
{¶33} Rodway testified that he spoke with Appellant a third time on October
22, 2013, at which point Appellant changed his story again. (Tr., pp. 365-366.)
Appellant now claimed that he sent West upstairs alone while Appellant went to
Townsend’s apartment to seek help. Appellant and Townsend returned together to
find a shirtless West, collapsed on Appellant’s dining room floor but still breathing.
Appellant stated in this interview that West did not say anything about being stabbed
when Appellant initially encountered him, but was holding his chest.
{¶34} The state also presented testimony of Dr. Joseph Ohr (“Ohr”) who had
performed the autopsy on West. Ohr testified that West died from a stab wound
which penetrated his heart and went into the right ventricle. (Tr., p. 284.) Ohr also
testified that the knife found in Appellant’s kitchen sink was “most consistent with the
decedent’s death.” (Tr., p. 289.)
{¶35} Appellant contends that his story of events remained consistent
throughout, but this is clearly contradicted by Rodway. The state presented
testimony from at least three other witnesses which contradicted Appellant’s
statements to the police, and Appellant’s statements continued to change over time.
The kitchen knife found in Appellant’s kitchen sink was consistent with the decedent’s
wounds. No blood was found outside the apartment or in the stairwell, but was found
in Appellant’s dining room and kitchen. This record reflects that the state presented
sufficient circumstantial evidence that, if believed, would lead a reasonable person to
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conclude that Appellant caused West’s death. Appellant’s sufficiency of the evidence
argument is without merit.
{¶36} Appellant also contends his convictions were against the manifest
weight of the evidence. Weight of the evidence concerns “the inclination of the
greater amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other.” (Emphasis deleted.) Thompkins at 387. “Weight is not
a question of mathematics, but depends on its effect in inducing belief.” (Emphasis
deleted.) Id.
{¶37} When reviewing a manifest weight of the evidence argument, a
reviewing court must examine the entire record, consider the credibility of the
witnesses and determine whether, in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. Id. at 387, 389. Only in
exceptional circumstances will a conviction be reversed as against the manifest
weight of the evidence. Id. This strict test for manifest weight acknowledges that
credibility is generally the province of the factfinder, who sits in the best position to
accurately assess the credibility of the witnesses. State v. Hill, 75 Ohio St. 3d 195,
204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St. 2d 230, 231, 227 N.E.2d
212 (1967).
{¶38} When, as here, there are two fairly reasonable versions of the events
which occurred and neither is wholly unbelievable, it is not the province of the
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appellate court to determine which version should be believed. State v. Walenciej,
7th Dist. No. 07 JE 006, 2007-Ohio-7206, ¶ 42.
{¶39} In the instant matter the jury heard all of the testimony, including
Appellant’s, and was presented with all of the evidence. Despite Appellant’s
assertion, a lack of direct evidence is inconsequential in a manifest weight challenge
as it does not undermine credible testimony and other circumstantial evidence. State
v. Frye, 11th Dist. No. 2005-A-12, 2006-Ohio-1857, ¶ 41. This record also shows
that the manifest weight of the evidence presented by the state supported Appellant’s
convictions. Accordingly, Appellant’s second assignment of error is without merit.
{¶40} Based on the foregoing, Appellant’s assignments of error lack merit and
the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Robb, P.J., concurs.