State v. Barber

[Cite as State v. Barber, 2021-Ohio-1506.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190338
TRIAL NO. B-1701852-A
Plaintiff-Appellee, :
: O P I N I O N.
vs.
:
DEONTE BABER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 30, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah Nelson, Assistant Public
Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} A lunchtime work excursion turned tragic when a driver accidentally hit and
injured a young boy. The boy’s father responded in fury by throwing open the car door and
pummeling the driver. A crowd gathered, with some tending to the boy, some trying to
intercede in or break up the fight, and others probably just wondering what all the
commotion was about. During the melee, someone shot and killed the driver. After the
gunshot, the father grabbed his son and raced to the hospital, calling 911 en route. Believing
he had disconnected the call, he then turned to his son and told the boy (repeatedly) that he
(the father) had killed the driver. Although that recorded confession seemed damning, the
investigating officers soon focused their gaze on an alternative suspect, defendant-appellant
Deonte Baber, and the father proved eager to assist in diverting attention from himself. The
father identified Mr. Baber as the shooter, and the officers believed that a video that
captured the shooting validated that conclusion. The jury ultimately agreed, convicting Mr.
Baber for murder, from which he now appeals, bringing seven assignments of error.
{¶2} Although we see a few errors in the trial proceedings, none rise to the level of
reversible error. The evidence against Mr. Baber, while certainly not overwhelming, was
powerful and probative, including the video recording and eyewitness identifications.
Taking into account the totality of the record, we find the errors at hand harmless, and
therefore we affirm the trial court’s judgment.
I.
{¶3} This case begins with Jamall Killings strolling home with his two young sons,
ages four and two, in tow. He paused to talk with a neighbor, and as children sometimes do,
his youngest darted into the street. Mr. Killings soon realized the breakaway, stopped
oncoming traffic, and went to retrieve him; leaving his older son at the side of the road.
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Unfortunately, as he secured the two-year-old, the four-year-old wandered into the street
and was struck by Jamie Urton, driving on a lunch outing with a colleague. Fortunately, the
child survived. Mr. Urton would not.
{¶4} Footage obtained from a neighbor’s video-doorbell showed Mr. Killings
essentially ignoring his stricken child and instead pouncing on Mr. Urton. He threw open
the door and began beating Mr. Urton. The car’s passenger, Richard Williams, came around
the vehicle and attempted to stop the altercation. Onlookers also began to materialize. And
sometime during this mayhem, Mr. Urton was shot, ultimately succumbing to his injuries.
{¶5} A good Samaritan offered to drive Mr. Killings’s son to the hospital. On the
way, Mr. Killings called 911 and, after believing he had hung up, proceeded to tell his son
that he had shot and killed Mr. Urton.
[T]hat’s why I killed him [], but you can’t run out into the street. * * * I killed
him, he dead. He dead. The dude who hit you with the car, he dead, I killed
him. I’m serious, he dead. The dude who hit you with the car, I killed him [].
He dead. You hear me? He dead. I killed him. * * * He dead, so you’ll be
good. Your daddy got you.
{¶6} After hearing this confession on the 911 call, police intercepted Mr. Killings at
the hospital and arrested him. They swabbed his hands for gunpowder residue, which
revealed small traces of a substance found in gunpowder. Mr. Williams also identified Mr.
Killings as the shooter. At first blush, this appeared to be an open and shut case. There was
motive, a voluntary (and spontaneous) confession, gun powder residue, and a positive
identification. But things would not remain so simple.
{¶7} Police soon learned of the video footage, which prompted them to look for
another suspect, ultimately settling on Mr. Baber. In the video, a person wearing a blue and
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orange hoodie jacket can be seen running up to the car during the altercation. The
individual then runs away with his arm extended toward the car (as though possibly
shooting a gun). Unfortunately, the video is too far away to show whether that individual
was holding a gun or even what the person looked like.
{¶8} Mr. Killings soon backtracked on his confession, professing to have made the
statements in an effort to console his son. Instead, he assured police that an individual
wearing a blue and orange jacket had come up to the car and shot Mr. Urton (for apparently
unknown reasons). He also provided a basic description that a detective with familiarity of
the neighborhood thought might match Mr. Baber. Scrolling through Facebook, the
detective stumbled upon a picture of Mr. Baber wearing a blue and orange jacket that
appeared similar to the one in the video. Suddenly, Mr. Baber emerged as a focal point of
the investigation.
{¶9} Ballistics evidence proved inconclusive. As already noted, police pulled a
small amount of gunpowder residue from Mr. Killings’s hand. However, a police
investigator testified that the trajectory of bullets that struck the driver’s door suggested that
Mr. Killings was not the shooter. The gun was never found, so no fingerprints or other
identifying information could be gleaned. And none of the remaining ballistics evidence
linked the shooting to Mr. Baber.
{¶10} Eyewitness descriptions were not a portrait of clarity. As already noted, Mr.
Killings offered the basic description which led police to identify Mr. Baber. And after being
shown a photo lineup, he identified Mr. Baber as the perpetrator. A nearby resident also
stated that she saw a person wearing a blue and orange jacket running from the general
direction of the scene. She identified that person as Mr. Baber once she viewed a photo
lineup. However, by her own admission, she did not actually see the shooting. Additionally,
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Mr. Williams vacillated on his identification, retracting his initial identification of Mr.
Killings as the shooter, admitting that, due to his glaucoma, his eyesight was too poor to
know who fired the shot. Conversely, two 911 callers provided different descriptions of the
shooter. One described the shooter as wearing a white hoodie and the other recalled a green
hoodie.
{¶11} Mr. Baber’s defense was two-pronged: (1) that Mr. Killings, rather than
himself, shot Mr. Urton; and (2) that he was not the person in the video wearing the blue
and orange jacket. The case, then, largely came down to credibility and circumstantial
evidence. Would the jury decide that Mr. Killings’s motive and confession simply raised too
much doubt to convict Mr. Baber? Or would the jury interpret the video (amplified by
eyewitness identifications) as showing the person wearing the blue and orange jacket to be
the shooter and identify Mr. Baber as that person?
II.
{¶12} On appeal, Mr. Baber presents seven assignments of error, attacking various
facets of the trial proceedings. We address the assignments in turn.
{¶13} In his first assignment of error, Mr. Baber argues that the trial court erred by
permitting the prosecution to withhold disclosure of eight witness until the cusp of trial. As
a general rule, parties must “provide to opposing counsel a written witness list, including
names and addresses of any witness it intends to call in its case-in-chief * * * .” Crim.R.
16(I). However, prosecutors may withhold this information by filing a certification of
nondisclosure. See Crim.R. 16(D). But prosecutors cannot file nondisclosure certifications
arbitrarily: as relevant here, a prosecutor must have “reasonable, articulable grounds to
believe that disclosure will compromise the safety of a witness, victim, or third party, or
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subject them to intimidation or coercion.” Crim.R. 16(D)(1). “Reasonable, articulable
grounds may include”: “[1] the nature of the case, [2] the specific course of conduct of one or
more parties, [3] threats or prior instances of witness tampering or intimidation, whether or
not those instances resulted in criminal charges, [4] whether the defendant is pro se, and [5]
any other relevant information.” Crim.R. 16(D). In other words, the prosecutor must
provide “case-specific reasoning to justify the certification.” State v. Davenport, 1st Dist.
Hamilton No. C-130307, 2014-Ohio-2800, ¶ 39.
{¶14} The nondisclosure certification mustered here, steeped in generalities and
vagueness, failed to satisfy Crim.R. 16(D). In fact, most of the certification simply incanted
boilerplate language with no relation to this case:
It is the Assistant Prosecuting Attorney’s experience that in virtually all
homicide high level felony cases coercion and threats to witnesses can play a
critical role. With today’s broad expansion of information via the Internet
and cell phones, witnesses’ names can quickly spread through the community.
{¶15} We have previously held that nearly identical language lacked a case-specific
justification. State v. Williams, 1st Dist. Hamilton No. C-130277, 2014-Ohio-1526, ¶ 16–17.
Beyond that boilerplate, the certification mentioned the allegations of this case, but was
devoid of any indicia of threatening or intimidating behavior. It indicated that Mr. Baber
“associated” with people who traffic narcotics and possess firearms; and that he and other
associates had been seen firing weapons. Although the certification suggested that “several
witnesses have stated concerns for their safety,” it offered no substantiation of this point,
merely concluding: “These threats are real and the only way to protect the witness[es] in
this case is by a non-disclosure order.” The certification lacked any indication that anyone
had threatened or even contacted a witness, or any other grounds to suggest that witness
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OHIO FIRST DISTRICT COURT OF APPEALS
safety might be compromised. Opaque allegations that Mr. Baber’s associates are criminals
and own firearms, without more, do not make the cut, and indeed, they shed little light
beyond the boilerplate language quoted above. These allegations also strain credulity
considering that, at a minimum, the two 911 callers provided potentially exculpatory
information, and thus presumably had no reason to fear retribution from Mr. Baber.
{¶16} Nonetheless, “[t]his court has stated that while generalized assertions in the
prosecutor’s certification are insufficient to meet the requirements of Crim.R. 16(D), that
defect could be cured during the hearing provided for in Crim.R. 16(F).” State v. Wallace,
1st Dist. Hamilton No. C-160613, 2017-Ohio-9187, ¶ 40, citing Williams at ¶ 18. The
privilege to cure pursuant to a Crim.R. 16(F) hearing should not be warped, however, into a
license to evade Crim.R. 16(I). At the Rule 16(F) hearing in this case, a detective testified
that one of the witnesses recognized Mr. Baber from an earlier incident in which he
allegedly fired shots into the air. He further conveyed this witness’s displeasure about being
contacted and indicated that all of the witnesses expressed concern for their safety. The
detective seemed to premise his conclusion of a risk of reprisal on the fact that Mr. Baber’s
associates lived in that community. But at the same time, he conceded that he had no
evidence that Mr. Baber (or any associate) had contacted any potential witness or had
otherwise threatened anyone involved in this case. Nor did he have any evidence that Mr.
Baber had even been in contact with these “associates” since his incarceration.
{¶17} Although the state acknowledges that the “case-specific” evidence primarily
consisted of witnesses’ fear, it nonetheless argues that the fear reflected on this record
suffices. For justification, the state points to State v. McKelton, 148 Ohio St.3d 261, 2016-
Ohio-5735, 70 N.E.3d 508, where the Supreme Court explained that “a prosecutor is not
precluded from taking a witness’s own impressions into account when deciding whether to
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OHIO FIRST DISTRICT COURT OF APPEALS
disclose that witness’s identity.” Id. at ¶ 54. But McKelton does not help the state here,
because the nondisclosure in that case contained four substantive justifications: (1) the
defendant had previously been convicted of witness intimidation; (2) a jailhouse letter
instructed an associate to post witness names in public; (3) an associate stated they would
“John Brown” the case (a reference to a case where every witness disappeared or recanted
their statements); and (4) a witness whose name had been disclosed was shot. Id. at ¶ 48.
Needless to say, these concrete justifications are a far cry from the assertions of witness
apprehension in this case.
{¶18} Furthermore, our case law has generally required actual, case-specific
justifications for every nondisclosed witness. See, e.g., State v. Woods, 1st Dist. Hamilton
Nos. C-130413 and C-130414, 2014-Ohio-3892, ¶ 35 (analyzing the case-specific
justifications for both witnesses separately); Wallace, 1st Dist. Hamilton No. C-160613,
2017-Ohio-9187, at ¶ 38–41 (expressing doubt whether defendants’ well-known reputation
as “robbery boys” and violence was sufficiently case-specific, but declining to decide for
other reasons); Davenport, 1st Dist. Hamilton No. C-130307, 2014-Ohio-2800, at ¶ 40–41
(holding that intimidation of witnesses by defendant’s family and continued attempts to
identify and contact other witnesses was sufficiently case-specific); State v. Harris, 1st Dist.
Hamilton No. C-110472, 2012-Ohio-349, ¶ 30–31 (holding that one witness being
approached and threatened was sufficient justification to withhold disclosure of all four
witnesses); State v. Hernandez-Martinez, 12th Dist. Butler No. CA2011-04-068, 2012-Ohio-
3754, ¶ 26–27 (finding sufficient justification not to disclose four witnesses where one
witness was a member of the same gang as the defendant, another witness was in close
proximity to the gang, a third witness was personally threatened, and the fourth witness had
seen multiple murders by the same gang). At the same time, this does not mean that the
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OHIO FIRST DISTRICT COURT OF APPEALS
justifications need to specifically relate to each witness, particularly when we see a serious
instance or pattern of witness harassment or intimidation. See McKelton at ¶ 53 (stating
that “Crim.R. 16 specifically contemplates nondisclosure” for justifications unrelated to the
witnesses).
{¶19} Here, we conclude that the state failed to cure its inadequate certification of
nondisclosure. While we are of course sensitive to the risks of witness intimidation or
harassment, vague bromides about witness fear, without more, fall short—as do generalized
assertions of criminal behavior. Short of pointing to the case at bar, the state provided no
evidence of threatening or violent behavior, or even that any witness had been contacted.
And although witness fear is certainly relevant, only one witness’s fear was substantiated
with any detail: the nearby resident who had previously seen Mr. Baber fire his gun into the
air and expressed concern at being contacted. While this might have sufficed for that
witness considering that she lived in the same neighborhood, we see no rationale for
extending this incident to justify withholding the other seven witnesses absent any specifics
of their circumstances or any threatening outreach by Mr. Baber or any of his compatriots.
The detective acknowledged that he lacked any specific information regarding any of the
other witnesses, and readily conceded the absence of any evidence of threats or
intimidation. We therefore conclude that the trial court abused its discretion in approving
the state’s certification of nondisclosure. See Mauzy v. Kelly Services, Inc., 75 Ohio St.3d
578, 592, 664 N.E.2d 1272 (1996) (“[T]he standard of review of a trial court’s decision in a
discovery matter is whether the court abused its discretion.”). If the state can simply say
“we are concerned because this is a serious case,” without more, and avoid disclosure, it
transforms Rule 16(I) into a hollow letter.
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{¶20} Even though the trial court abused its discretion in endorsing the state’s
nondisclosure certification, we must nonetheless evaluate whether the error spells reversal.
And to justify reversal, Mr. Baber must demonstrate material prejudice from the absence of
the disclosures. See State v. Allenbaugh, 2020-Ohio-68, 151 N.E.3d 50, ¶ 30 (11th Dist.)
(noting that a trial court’s Crim.R. 16(K) rulings “ ‘will not be reversed on appeal absent an
abuse of discretion and proof of material prejudice’ ”), quoting State v. Belton, 149 Ohio
St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 116; Woods, 1st Dist. Hamilton Nos. C-130413
and C-130414, 2014-Ohio-3892, at ¶ 34 (“This court * * * reviews a trial court’s decisions
concerning discovery—including, issues of witness disclosure—under an abuse-of-discretion
standard.”); McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶ 181 (“We
will not reverse a trial court’s ruling on evidentiary issues absent an abuse of discretion and
proof of material prejudice.”).
{¶21} Here, Mr. Baber’s attempts to show material prejudice are speculative. He
does not specify what exculpatory or impeachment evidence he could have unearthed with
earlier access to the contact information of the witnesses. Nor did he seek a continuance
below or marshal any type of proffer. It certainly stands to reason that Mr. Baber’s fortunes
might have differed had he, for example, interviewed the exculpatory 911 callers
immediately after the fact, instead of two years later. But speculating on what might have
been cannot justify reversal, particularly when counsel failed to develop the record on
prejudice. See Woods at ¶ 35 (“[T]here was no showing that the witness in question would
have provided exculpatory evidence or that [the defendant] was otherwise prejudiced by the
nondisclosure.”). Any claim of prejudice is further undermined by the fact that defense
counsel received the names of the witnesses ten months prior to Mr. Baber’s trial (an earlier
trial was poised to begin, but the court granted a continuance for unrelated reasons). To be
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OHIO FIRST DISTRICT COURT OF APPEALS
sure, this information did not fully comply with Rule 16, but it should have enabled defense
counsel to conduct an adequate investigation or seek appropriate relief from the court if
such efforts were stymied by the lack of details. Therefore, in the absence of any indication
of prejudice, we overrule this assignment of error.
{¶22} In his second assignment of error, Mr. Baber focuses upon prejudicial
testimony injected by one of the state’s witnesses regarding the video footage. Specifically,
the lead detective testified that he zoomed in on the video, revealing a muzzle flash. From
the context of his testimony, this indicated that the individual with the blue and orange
sweatshirt (who the state fingered as Mr. Baber) fired the gun. If true, the detective’s
testimony would answer one of the central issues of the case: who fired the gun.
Unfortunately, the testimony appears cut from whole cloth. Both parties agree that the
testimony was inadmissible because the detective was invading the province of the jury.
Nor did the prosecutor have any evidence that a muzzle flash could be identified in the
video. Our review of the video likewise comes up empty with respect to any muzzle flash.
Either the detective made up this evidence, or it existed and he neglected to share it with the
prosecutors (or defense counsel).
{¶23} Defense counsel objected and the trial court instructed the jury to disregard
the testimony. Mr. Baber then moved for a mistrial, which the trial court denied. Whether
a mistrial should be granted generally rests in “the sound discretion of the trial court.” State
v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). But it “ ‘should not be ordered in
a criminal case merely because some error or irregularity has intervened.’ ” Id., quoting
State v. Reynolds, 49 Ohio App.3d 27, 33, 550 N.E.2d 490 (2d Dist.1988). In other words, a
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mistrial is necessary only when “a fair trial is no longer possible.” State v. Franklin, 62 Ohio
St.3d 118, 127, 580 N.E.2d 1 (1991).
{¶24} On review, we will not disturb the trial court’s grant or denial of a motion for
a mistrial “absent an abuse of discretion.” Treesh at 480; see State v. Jones, 1st Dist.
Hamilton No. C-180091, 2019-Ohio-4862, ¶ 74 (same). “[W]e must determine whether,
absent the error or irregularity, ‘the jury would have found the appellant guilty beyond a
reasonable doubt.’ ” State v. Knight, 2016-Ohio-8505, 78 N.E.3d 1267, ¶ 7 (9th Dist.),
quoting Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, 933 N.E.2d 317, ¶ 42
(10th Dist.), citing State v. Maurer, 15 Ohio St.3d 239, 267, 473 N.E.2d 768 (1984).
{¶25} Here, Mr. Baber paints the detective’s testimony as unfairly implicating him
as the shooter, with obvious concomitant prejudice. We tend to agree with that point. As
the trial court acknowledged, the video “itself does [not] provide any evidence of either the
existence of a gun or a muzzle flash.” And the only eyewitness to identify the person
wearing the blue and orange jacket as the shooter was Mr. Killings—a self-interested witness
who himself initially confessed to the crime. Thus, the detective’s statement posed the risk
of placing a heavy thumb on the proverbial scales. If a muzzle flash could truly be seen
coming from the person wearing the blue and orange jacket, it might undermine part of Mr.
Baber’s defense—that Mr. Killings was the shooter.
{¶26} But, as a countervailing matter, it was undisputed that a gunshot killed Mr.
Urton. From that perspective, the “muzzle flash” comment added little to the equation, and
although the detective seemed to imply that it came from the individual believed to be Mr.
Baber, he never connected those dots directly. Moreover, “[a] jury is presumed to follow the
instructions given to it by the trial judge.” State v. Loza, 71 Ohio St.3d 61, 75, 641 N.E.2d
1082 (1994). Thus, we would ordinarily presume that that the jury could disregard the
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OHIO FIRST DISTRICT COURT OF APPEALS
detective’s testimony and re-evaluate the video anew without considering the detective’s
commentary. As Mr. Baber emphasizes, however, this record reveals concerns that the jury
could not abide by the judge’s admonitions. During deliberations, the jury inquired: “Can
we zoom in on video surveillance or magnify the video and still-photo of video, in some
way?” Inexplicably, the trial court failed to alert counsel to the question, and proceeded to
answer it ex parte, violating the maxim that “ ‘any communication between judge and jury
that takes place outside the presence of the defendant is error * * * .’ ” State v. Kelley, 1st
Dist. Hamilton No. C-140112, 2014-Ohio-5565, ¶ 33, quoting Bostic v. Connor, 37 Ohio
St.3d 144, 149, 524 N.E.2d 881 (1988). Although the trial court correctly told the jury that it
could not zoom in on the video, this question raises doubts regarding whether the jury
followed the court’s instruction. At the same time, the question can be viewed from another
perspective—the jury was simply frustrated by the lack of clarity in the video and was asking
if any enhancement was available.
{¶27} Although we agree with Mr. Baber that the detective’s testimony was
inadmissible and potentially prejudicial, after reviewing the totality of the testimony and the
record surrounding the jury’s question, we are unprepared to say that the trial court abused
its discretion in denying a mistrial. As we have noted above, the state had other evidence of
Mr. Baber’s guilt and we cannot say that, absent the detective’s testimony, a different result
would have obtained. Mitigating the prejudicial effect, the detective did not expressly
identify where the “muzzle flash” originated—and we all know a muzzle flash must have
occurred somewhere because a gun was fired. The trial court took immediate and
appropriate steps to blunt any potential prejudice, and thus we cannot say that this isolated
comment warranted a mistrial. For these reasons, we overrule this assignment of error.
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{¶28} In his third assignment of error, Mr. Baber faults the trial judge’s handling of
a situation arising when an alternate juror viewed media coverage and discussed it with
other jurors. Although it’s not exactly clear what details from the media coverage that the
juror shared, his commentary prompted another juror to note that he “wouldn’t stop talking
about it.” The offending juror even went so far as to share that he was “pretty much
convinced” of Mr. Baber’s guilt. Perhaps needless to say, the juror’s conduct violated
instructions about avoiding media coverage and drawing premature conclusions that the
trial court provided to all of the jurors.
{¶29} After learning of the violation, the trial court individually questioned each
juror to determine who perpetrated the misconduct. Then, after dismissing the offending
juror, the court collectively questioned the remaining jurors, asking anyone to raise their
hand if they heard anything that would influence their verdict. To Mr. Baber, this collective
questioning was inadequate to ascertain any taint on the remaining jurors. In other words,
Mr. Baber posits that the trial court should have individually questioned the jurors to
determine the effect of the misconduct.
{¶30} Mr. Baber’s argument fails on two fronts. First, “[t]he scope of voir dire is
generally within the trial court’s discretion, including voir dire conducted during trial to
investigate jurors’ reaction to outside influences.” State v. Sanders, 92 Ohio St.3d 245, 252,
750 N.E.2d 90 (2001). And the Ohio Supreme Court has specifically deemed permissible
collective questioning of jurors to determine the effect of misconduct. See id. (holding that
collective questioning about the effect of misconduct was sufficient because “the judge could
reasonably assume that those who did not speak up were unaffected.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} Second, Mr. Baber failed to request individual questioning below. As a
general rule, parties are permitted to participate in rectifying juror misconduct. See State v.
Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 58 (“ ‘The trial court should
not decide and take final action ex parte * * * but should determine the circumstances, the
impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all
interested parties permitted to participate.’ ”), quoting Remmer v. United States, 347 U.S.
227, 229–30, 74 S.Ct. 450, 98 L.Ed. 654 (1954). The trial court here did not act on its own
accord, without consulting the attorneys. Indeed, the failure to request individual
questioning precludes us from now finding an abuse of discretion, absent plain error. See
Lang at ¶ 61 (“Moreover, neither the state nor the defense requested that the trial counsel
individually question the jurors following this response. Thus, the trial court did not abuse
its discretion by stopping there.”); State v. Lee, 2018-Ohio-3957, 143 N.E.3d 1126, ¶ 26
(10th Dist.) (“Where the complaining party fails to object to the trial court’s failure to
question a juror or decision to not disqualify a juror for misconduct, an appellate court may
notice a ‘plain error’ although it was not brought to the attention of the court.”), citing State
v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 73. Without any
record development on potential prejudice, we cannot find plain error. We therefore
overrule this assignment of error.
{¶32} For his fourth assignment of error, Mr. Baber challenges the trial court’s
decision to take judicial notice of the date of the posting of a Facebook photo. The photo
shows Mr. Baber wearing a blue and orange jacket, which the state latched upon as
circumstantial evidence of his guilt, since the individual fleeing the shooting on the video
wore (as best we can tell) a similar jacket. But, of course, the date of the photo mattered—if
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OHIO FIRST DISTRICT COURT OF APPEALS
he bought a new jacket after the shooting, the value of that photo would plummet. Defense
counsel objected to the photo on hearsay grounds, and as a compromise, the trial court took
judicial notice of the posting date. The court then failed to inform the jury that it was not
required to accept the judicially noticed fact as conclusive.
{¶33} Because Mr. Baber did not object below, we review the trial court’s actions for
plain error. Crim.R. 52. “For this court to reverse on plain error, we must find that (1) there
was an error, (2) the error was plain, i.e., an obvious defect in the trial court proceedings,
and (3) the error affected substantial rights, i.e., it affected the outcome of the trial.” State
v. Burgett, 2019-Ohio-5348, 139 N.E.3d 940, ¶ 30 (1st Dist.), citing State v. Barnes, 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶34} Evidence Rule 201(B) provides: “A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.” And the staff notes explain that
“[t]he type of fact contemplated by 201(B)(2) includes scientific, historical and statistical
data which can be verified and is beyond reasonable dispute.” Finally, “[i]n a criminal case,
the court shall instruct the jury that it may, but is not required to, accept as conclusive any
fact judicially noticed.” Evid.R. 201(G).
{¶35} At oral argument, the state conceded that the trial court erred by taking
judicial notice of the photo’s posting date. The dates of Facebook posts are not generally
known or capable of ready determination, and they fall outside the scope of readily
verifiable “scientific, historical and statistical data.” See, e.g., State of Ohio ex rel. Banker’s
Choice, LLC v. City of Cincinnati, 1st Dist. Hamilton No. C-200017, 2020-Ohio-6864, ¶ 15
(holding that a trial court could not take judicial notice of documents to determine relevant
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OHIO FIRST DISTRICT COURT OF APPEALS
dates for deciding whether the suit was barred by the statute of limitations); but see State ex
rel. Richardson v. Gorman, 117 Ohio App. 244, 246, 187 N.E.2d 411 (1st Dist.1962) (taking
“judicial notice of the fact that September 30, 1962, fell on a Sunday”); States Resources
Corp. v. Hendy, 9th Dist. Summit No. 25423, 2011-Ohio-1900, ¶ 20 (“ ‘Public records and
government documents are generally considered “not to be subject to reasonable dispute.”
This includes public records and government documents available from reliable sources on
the Internet.’ ”), quoting United States ex rel. Dingle v. BioPort Corp., 270 F. Supp.2d 968,
972 (W.D.Mich.2003).
{¶36} We agree that the court erred by taking judicial notice of the posting date of
the Facebook photo. It is also undisputed that the trial court failed to inform the jury that it
was not required to find that fact conclusive. But Mr. Baber’s argument falters on the
substantial rights prong of the plain error analysis. Even without the date of the social
media post, the state properly presented the photo to the jury showing that Mr. Baber
owned a jacket that was similar to the blue and orange jacket in the video. That admissible
evidence and its impact dwarf the significance of the date of the post. As we already noted
above, Mr. Baber did not object below and the jury did have other evidence that Mr. Baber
wore a blue and orange jacket on the day of the shooting—Mr. Killings and the nearby
resident’s testimony. For these reasons, we decline to find plain error and overrule this
assignment of error.
{¶37} In Mr. Baber’s fifth assignment of error, he broadens the aperture a bit,
alleging that the cumulative effect of the court’s errors deprived him of a fair trial. “Under
the doctrine of cumulative error, ‘a conviction will be reversed where the cumulative effect
of errors in a trial deprives a defendant of the constitutional right to a fair trial even though
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OHIO FIRST DISTRICT COURT OF APPEALS
each of numerous instances of trial court error does not individually constitute cause for
reversal.’ ” State v. Leach, 150 Ohio App.3d 567, 2002-Ohio-6654, 782 N.E.2d 631, ¶ 57 (1st
Dist.), quoting State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). Of course, the
doctrine only applies where we “find multiple instances of harmless error.” Garner at 64.
But where multiple errors exist, we must inquire whether there is a “ ‘reasonable possibility
that the evidence may have contributed to the accused’s conviction.’ ” State v. Echols, 128
Ohio App.3d 677, 700, 716 N.E.2d 728 (1st Dist.1998), quoting State v. DeMarco, 31 Ohio
St.3d 191, 195, 509 N.E.2d 1256 (1987). In other words, “ ‘ “there must be overwhelming
evidence of the accused’s guilt or some other indicia that the error did not contribute to the
conviction.” ’ ” Leach at ¶ 57, quoting Echols at 700, quoting DeMarco at 195.
{¶38} Although the cumulative error doctrine is necessarily case specific, the
doctrine most often applies where the evidence is not overwhelming or when the outcome
depends upon witness credibility. See, e.g., Leach at ¶ 58 (“[W]here the evidence of guilt
was not overwhelming * * * * [w]e conclude that the cumulative effect of the errors
identified by [the defendant] rendered his trial unfair.”); Echols at 700 (finding cumulative
error “where the evidence of guilt for each incident was not overwhelming”); State v.
Zimmerman, 2019-Ohio-721, 132 N.E.3d 1185, ¶ 34 (10th Dist.) (finding cumulative error
where police improperly testified to bolster victim’s credibility and where the jury spent at
least some time considering a photo of the defendant’s knife which had inadvertently been
shown).
{¶39} Here, we recognize three errors: (1) the inadequate justifications for witness
nondisclosure; (2) the impermissible testimony regarding a muzzle flash; and (3) the court
taking judicial notice of the date of the Facebook post. Even considering the aggregate
impact of these errors, we fail to see how they command reversal. As explained above, any
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OHIO FIRST DISTRICT COURT OF APPEALS
prejudicial impact of the nondisclosures is speculative—and we cannot indulge such
speculation simply because we are peering through the cumulative error lens. That leaves
us with the date of the Facebook post and the detective’s inopportune comment about the
muzzle flash. Any prejudicial impact of both errors is slight (for reasons we’ve discussed
above), and adding them together does not yield a conclusion that these errors contributed
to Mr. Baber’s conviction. We also recognize that the trial court took immediate steps to
minimize any prejudicial impact of the detective’s comment.
{¶40} When we measure these errors against the overall evidence, it only reinforces
this conclusion. Although the state’s evidence may not have been overwhelming, it was
powerful, enhanced by the impact of the video evidence, the picture of Mr. Baber in similar
attire as the presumptive shooter, and the testimony from the eyewitnesses. Evaluating the
strength of this evidence against the effect of the two errors convinces us that the
cumulative effect of these errors did not deprive Mr. Baber of a fair trial. We accordingly
overrule this assignment of error.
{¶41} Turning to his sixth assignment of error, Mr. Baber argues that his conviction
was against the weight of the evidence. In reviewing whether the conviction runs counter to
the manifest weight of the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In other words, we review the evidence, the
credibility of witnesses, and the entire record. Id. But we will only reverse if 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., quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶42} Mr. Baber’s manifest weight challenge is primarily one of credibility—he
highlights the evidence related to Mr. Killings and his presumptive motive to steer the focus
away from himself. Relatedly, Mr. Baber seizes on the fact that another witness who saw
him on the date of the shooting reported that he was wearing a t-shirt and not a blue and
orange hoodie, and he plays up inconsistent descriptions by the 911 callers. However, “it is
well settled law that matters as to the credibility of witnesses are for the trier of fact to
resolve.” State v. Ham, 1st Dist. Hamilton No. C-170043, 2017-Ohio-9189, ¶ 21. “ ‘When
conflicting evidence is presented at trial, a conviction is not against the manifest weight of
the evidence simply because the trier of fact believed the prosecution testimony.’ ” State v.
Robinson, 12th Dist. Butler No. CA2018-08-163, 2019-Ohio-3144, ¶ 29, quoting State v.
Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17.
{¶43} To be sure, Mr. Killings had credibility concerns, and such matters were
appropriately vetted at trial. But we fail to see how these concerns undermine the integrity
of the verdict, when considered in the context of the entire record. And with respect to the
clothing discrepancies, the fact that a witness spotted Mr. Baber at some point on the date of
the shooting without a hoodie is hardly revelatory—he could have simply removed the
hoodie. Finally, regarding the inconsistent accounts by the 911 callers, these were certainly
important points for the defense that were explored at trial. Simply because some evidence
supports the defense theory does not transform a conviction into a manifest weight
violation.
{¶44} Based on the evidence as we have surveyed it above, we do not have any
concerns that the jury lost its way and created a manifest injustice. Therefore, we overrule
the sixth assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶45} In his final assignment of error, Mr. Baber attacks the trial court’s decision to
apply the violent offender registration requirement embodied in R.C. 2903.41 et seq.
(Sierah’s Law) against him. Mr. Baber argues that this registration requirement runs afoul
of the Retroactivity Clause of the Ohio Constitution, which prohibits ex post facto laws,
because it applies to acts committed before the effective date of the statute. See Article II,
Section 28, Ohio Constitution (“The general assembly shall have no power to pass
retroactive laws * * * .”).
{¶46} As relevant here, the statute contains a “presum[ption] that the violent
offender shall be required to enroll in the violent offender database with respect to the
offense.” R.C. 2903.42(A)(1). And assuming the trial court follows that presumption, the
offender must personally enroll annually with the sheriff of his or her county of residence.
R.C. 2903.43(B), (D)(1). That enrollment process includes providing required information,
such as aliases, addresses, social security number, driver’s license number, the offense
prompting the registration, the name and address of any school the offender is attending,
employer information, license plate numbers of each vehicle, and a description of scars or
tattoos. Id. at (C)(2).
{¶47} Ohio courts are split on whether this registration scheme is substantive (thus
violating the Retroactivity Clause) or remedial. See State v. Hubbard, 2020-Ohio-856, 146
N.E.3d 593, ¶ 32 (12th Dist.) (“[W]e find that Sierah’s Law is remedial, rather than
substantive, in nature.”); State v. Jarvis, 2020-Ohio-1127, 152 N.E.3d 1225, ¶ 36 (5th Dist.)
(“[W]e conclude that * * * R.C. 2903.41, et seq. * * * violates Section 28, Article II of the
Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
We also note that the Ohio Supreme Court has certified a conflict to decide this very issue.
See State v. Jarvis, 159 Ohio St.3d 1427, 2020-Ohio-3473, 148 N.E.3d 568.
{¶48} Nonetheless, we have previously determined that Sierah’s Law is remedial in
nature and not violative of the Retroactivity Clause. See State v. Rike, 1st Dist. Hamilton
No. C-190401, 2020-Ohio-4690, ¶ 62 (holding that Sierah’s Law is “ ‘not so punitive that [it]
impose[s] a new burden in the constitutional sense, as contemplated by [State v. Williams,
129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108],’ and, instead, [is] remedial in
nature.”), quoting Hubbard at ¶ 37. We decline to revisit that holding here, and we
accordingly overrule Mr. Baber’s final assignment of error.
* * *
{¶49} In light of the foregoing analysis, we overrule Mr. Baber’s seven assignments
of error and affirm the trial court’s judgment.
Judgment affirmed.
CROUSE, J., concurs.
WINKLER, J., concurs in judgment only.
Please note:
The court has recorded its entry on the date of the release of this opinion
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