State v. Hendrix

[Cite as State v. Hendrix, 2016-Ohio-2697.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-150194
C-150200
Plaintiff-Appellee, : TRIAL NO. B-1400317
vs. :
: O P I N I O N.
D’JANGO HENDRIX,
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 27, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Presiding Judge.
{¶1} Defendant-appellant D’Jango Hendrix appeals the 53-year sentence
imposed by the trial court for four counts of attempted murder and having a weapon
while under a disability. Because we find no merit in his seven assignments of error,
we affirm the judgment of the trial court.
Background Facts and Procedural History
{¶2} Shortly after Christmas, in January 2014, Jay Dillon hosted a
nighttime bonfire at his Springfield Township home for his family and neighbors to
eat and drink, and to burn Christmas trees. What had begun as a neighborhood
party, however, turned into a shootout in the street. The Springfield Township police
were dispatched to investigate shots fired.
{¶3} The police found four individuals in the front yard of Dillon’s home,
including Dillon, Kevin Tye, Christopher White, and Donald Raines. None appeared
to police to be inebriated. The four told police that another neighbor, Hendrix, had
started the gun fight, and that Dillon had shot back at Hendrix seven times in self-
defense and in defense of the others. Hendrix had been at the bonfire, but had left
after a short tussle with another neighbor, Kent Worley. The police eventually found
an unconscious Hendrix, who had been shot in the abdomen, on the back patio of a
home on an adjacent street. Emergency personnel took Hendrix to University
Hospital, while police separated Dillon, Tye, and White and took them into custody
for questioning.
{¶4} Police later interviewed Hendrix in the hospital. Hendrix’s attorney,
whom he introduced to police as his friend, was also present. Hendrix denied having
a gun that night, and also denied having any altercation with Worley, claiming
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instead that he had left his home to meet his friends and did not know why anyone
would have shot at him.
{¶5} Based on the evidence that the police had obtained at the time, the
state indicted Hendrix on four counts of felonious assault, four counts of attempted
murder, accompanied by firearm specifications, and two counts of having a weapon
while under a disability.
{¶6} The police obtained a search warrant for Hendrix’s DNA to compare to
DNA found on a firearm police had found near Hendrix’s unconscious body the night
of the shooting. When the officer retrieved the DNA swab from Hendrix, Hendrix
began explaining bullet trajectories to the officer, and drew a diagram. The officer
ended the conversation, and advised Hendrix to speak with his attorney.
{¶7} The matter proceeded to a jury trial. At trial, the state introduced the
testimony of the four victims. Tye testified that on the night of the shooting, he had
been at Dillon’s home for the bonfire with Raines, White, Dillon, and Hendrix.
Worley, another neighbor, approached the men at the bonfire, and he placed his
hand on Tye’s shoulder. Hendrix then stood up and started shouting something
about “disrespect.” Hendrix grabbed Worley by the shirt and pushed him back. The
other men separated the two, and Dillon told Hendrix to leave. Worley left the
gathering, and Hendrix left as well, returning to his home across the street. Tye then
saw Hendrix walk out of his house, and he saw Hendrix standing in the middle of the
street with his arm outstretched, firing what appeared to be a weapon. Tye moved
from the bonfire area toward Dillon’s driveway, and eventually went across the street
to his house and grabbed his gun. Tye admitted on cross-examination that he did
not see who had fired the first shot, and he admitted to drinking at least one beer.
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{¶8} Angela Tye, Kevin’s wife, also testified. She called 911 that night after
her husband had come inside their home, screaming that a neighbor had gone crazy
and that he was going to get his gun.
{¶9} Worley testified consistent with the story told by Tye. Worley
approached the bonefire and put his hand on Tye’s shoulder, causing Hendrix to
push him. Hendrix mumbled something he could not understand. At that point,
Worley went home. A bit later, Worley had come out of his home when he heard gun
shots, so he went back inside. On cross-examination, Worley admitted that he had
been drinking “spiked” coffee that night, but he insisted that he had not been
intoxicated. Worley also admitted that he had told police initially that Hendrix had
never touched him during the tussle.
{¶10} Raines testified that he had broken up the tussle between Hendrix and
Worley, and that Hendrix had placed his hands on Worley’s neck. After Dillon told
Hendrix to leave, Hendrix came back out of his home with a gun, pointed it at
Raines, who was near the firepit, and fired. Raines took cover behind a tree when a
second shot was fired. Raines then saw Dillon fire a shot in Hendrix’s direction. On
cross-examination, Raines admitted that he had told police in his interview that he
did not know who had shot back at Hendrix, meaning that he did not know if it had
been White or Dillon.
{¶11} White’s testimony largely mirrored the others. White testified that
after Hendrix had left, White walked towards Dillon’s front door. White saw Hendrix
aim at the firepit, where Raines had been, and fire two shots. Then, Hendrix turned
towards White and Dillon, who were in the front of Dillon’s house, pointed his gun at
them, and gunshots rang out.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Dillon’s testimony reiterated the events between Hendrix and Worley,
and that Hendrix had grabbed Worley by his shoulders. Dillon asked Hendrix to
apologize, and Hendrix said, “I’m not apologizing to no white motherfucker.” When
Dillon told Hendrix to leave, Dillon heard Hendrix say that he would be back with his
“burner,” which Dillon understood to mean a gun. Dillon went inside to get his
weapon, walked out of his front door and across the driveway. Dillon saw Hendrix
come out of his house, he heard two shots fired in another direction, and then
Hendrix pointed the gun towards him and fired. Dillon returned fire. Afterwards,
Dillon noticed that he had a hole on the inside of his pant leg, presumably from a
bullet. On cross-examination, Dillon admitted that his statement to police did not
mention that Hendrix had called Worley a “white motherfucker,” or that Hendrix
had used the term “burner.”
{¶13} The state also presented the testimony of the detective who had
interviewed Hendrix at the hospital, and who had obtained the DNA swab from
Hendrix at the justice center. The detective testified that he had recovered bullets
from the outside and inside of Hendrix’s property, and that he had found a bullet at
the base of a tree in Dillon’s yard where Raines had taken cover. The detective found
seven bullet casings in Dillon’s front yard, where Dillon had admitted to firing seven
shots at Hendrix.
{¶14} John Heile, a firearm expert, testified that the bullet recovered near
the tree on Dillon’s property matched a .38-caliber revolver—the same caliber
weapon found near Hendrix the night of the shooting. The parties stipulated that the
.38-caliber revolver had Hendrix’s blood on it. Heile also testified that the bullet
casings found in Dillon’s yard matched the .45-caliber semi-automatic pistol that
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OHIO FIRST DISTRICT COURT OF APPEALS
Dillon had admitted firing, and that at least the bullet found outside Hendrix’s home
matched Dillon’s weapon.
{¶15} Hendrix testified in his own defense. According to Hendrix, on the
night of the shooting, he joined the others at Dillon’s bonfire. The whole time
Hendrix was there, Worley kept his hand in his pocket. At some point, Hendrix felt
that Worley had snuck up on him, and a cursing argument ensued. The men pushed
Hendrix, causing his glasses to fall off. Hendrix then left the bonfire, and returned
home. After about ten minutes, Hendrix got ready to leave his house again,
intending to get in his truck and drive to meet his friends at a bowling alley. Hendrix
started walking down the top of his driveway when he was shot. Hendrix then fired
back three or four shots. Hendrix testified that he had initially denied having a gun
that night to the police, because the gun belonged to his wife, who had been out of
town at the time of the shooting, and he had wanted to protect her. When asked why
he had grabbed a gun out of the dresser before leaving his house, Hendrix stated that
he had been “jumped” before, that “the attitude was a little bit aggressive * * * when I
left there,” and that Worley had not taken his hand out of his pocket.
{¶16} The jury found Hendrix guilty of all ten counts in the indictment. The
trial court merged the two counts of having a weapon while under a disability for the
purposes of sentencing, merged the felonious-assault counts into the attempted-
murder counts, and also merged all but two of the firearm specifications. The trial
court sentenced Hendrix to 11 years on each of the attempted-murder counts, 3 years
on each of the firearm specifications, and 36 months on the weapon-under-disability
charge. The trial court imposed consecutive prison terms for a total of 53 years in
prison.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Hendrix now appeals his convictions.
Challenges to Evidentiary Rulings
{¶18} In his first assignment of error, Hendrix argues that the trial court
abused its discretion by making several improper evidentiary rulings.
{¶19} First, Hendrix argues that the trial court erred in allowing the state to
impeach Hendrix’s credibility with his prior convictions. Hendrix had stipulated to
certain prior convictions for purposes of the weapons-under-disability counts, and
the state impeached Hendrix with evidence of convictions unrelated to those charges.
{¶20} When cross-examining Hendrix, the prosecutor questioned Hendrix
regarding felony convictions he had sustained within the past ten years. The defense
attorney objected, and the parties and the court had an unreported sidebar
conference. The prosecutor then questioned Hendrix briefly regarding the following
prior convictions: trafficking in cocaine, burglary, weapons under disability,
harassment by inmate, illegal possession of a firearm in a liquor-permit
establishment, intimidation, and discharge of a firearm near a premises. Although
Hendrix objected to the introduction of the evidence, we do not know the basis of the
objection from the record. Therefore, we review this argument for plain error. See
State v. Lewis, 1st Dist. Hamilton Nos. C-050989 and C-060010, 2007-Ohio-1485, ¶
39.
{¶21} Hendrix argues that the admission of his prior convictions was unduly
prejudicial under Evid.R. 403(A), relying on State v. Creech, 2014-Ohio-4004, 18
N.E.3d 523 (7th Dist.). In Creech, the court held that the trial court had erred in
failing to accept a defendant’s stipulation that he was under a disability for the
purposes of proving a weapons-under-disability charge, relying on Fed.R.Evid. 403
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and Old Chief v. U.S., 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997). The
Creech court noted that the prior crimes were “not admissible for any other reason
than to show his status as disabled.” Id. at ¶ 11. In this case, Hendrix testified, and
thus the prosecutor could impeach him as a witness with his prior convictions under
Evid.R. 609. See Evid.R. 609(A)(2) (“[n]otwithstanding Evid.R. 403(A), but subject
to Evid.R. 403(B), evidence that the accused has been convicted of a crime is
admissible if the crime was punishable by death or imprisonment in excess of one
year pursuant to the law under which the accused was convicted and if the court
determines that the probative value of the evidence outweighs the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.”). Therefore, we find
Creech distinguishable from the case at bar.
{¶22} When a prosecutor uses prior convictions to impeach a witness’s
general credibility, Evid.R. 609 allows the prosecutor to question the witness
regarding the name of the crime, the place of conviction, and the punishment. See
State v. Amburgey, 33 Ohio St. 3d 115, 117, 515 N.E.2d 925 (1987). The prosecutor in
this case did just that, thus, on this record, Hendrix has not shown that the
admission of his prior convictions constituted plain error. See Lewis at ¶ 39.
{¶23} Next, Hendrix argues that the trial court erred in sustaining the state’s
objection during his closing argument regarding the trajectory of the bullet that
passed through Hendrix’s body. During trial, Hendrix introduced testimony from
Brian Edmunds, a charge nurse at the Hamilton County Justice Center. Edmunds
testified that he had measured the entrance and exit wounds on Hendrix’s body, and
that the entry wound was 43½ inches from the floor, and that the exit wound was
45¾ inches from the floor. During closing argument, defense counsel argued that
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OHIO FIRST DISTRICT COURT OF APPEALS
Hendrix had been ambushed by gunshots at the top of his driveway when he had
walked out of his house, as Hendrix had testified. To support Hendrix’s side of the
story, defense counsel argued that the entrance- and exit-wound measurements on
Hendrix’s body indicated that Hendrix had been shot at an upward angle. The
prosecutor objected to the defense attorney’s argument, which the trial court
sustained.
{¶24} Although counsel is afforded latitude in closing argument, the
argument must be based on the evidence presented at trial. See Brokamp v. Mercy
Hosp., 132 Ohio App. 3d 850, 868, 726 N.E.2d 594 (1st Dist.1999). No testimony had
been introduced to establish that the locations of Hendrix’s entrance and exit
wounds indicated a bullet trajectory consistent with an upward-angle shot.
Therefore, the trial court properly sustained the state’s objection on this basis.
{¶25} We overrule Hendrix’s first assignment of error.
Batson Challenge
{¶26} In his second assignment of error, Hendrix argues that the trial court
erred in overruling his objection to the state’s use of a peremptory challenge to
remove an African-American juror under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
1712, 90 L. Ed. 2d 69 (1986).
{¶27} Batson prohibits the exercise of a peremptory strike against a
prospective juror solely on the basis of that juror’s race, consistent with the Equal
Protection Clause. State v. Robinson, 1st Dist. Hamilton No. C-140043, 2015-Ohio-
773, ¶ 11. Once a Batson challenger has made a prima facie showing of
discrimination, the party moving for a peremptory strike must give a race-neutral
explanation for the strike. State v. Williams, 1st Dist. Hamilton No. C-130277, 2014-
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-1526, ¶ 36-37, citing State v. Herring, 94 Ohio St. 3d 246, 255-256, 762 N.E.2d
940 (2002). The trial court must then determine whether purposeful discrimination
occurred. Williams, citing Herring at 256. A court will not reverse a trial court’s
finding under Batson unless that finding is “ ‘clearly erroneous.’ ” Williams, quoting
Hernandez v. New York, 500 U.S. 352, 369, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991).
{¶28} Defense counsel objected to the state’s use of a peremptory challenge
to remove an African-American juror—Prospective Juror No. 1—under Batson.
Defense counsel argued that the prospective juror had indicated during voir dire that
she believed police officers were “here to protect and serve.” The state responded
that it had used the peremptory challenge because of the prospective juror’s
“criminal background as well as civil lawsuits that she was involved with and also
that * * * she was too eager to serve.”
{¶29} According to the transcript of voir dire, Prospective Juror No. 1 stated
that her husband had been charged with telephone harassment based upon a
complaint from a past girlfriend. Springfield Township police had investigated the
complaint, and the charge had occurred while the prospective juror and her husband
were married. The prospective juror also stated that she or a family member had
been involved in a civil case, although the juror indicated that nothing about that
civil matter had caused her any concern or had affected her view of the court system.
{¶30} Although the record is unclear as to what the prosecutor meant when
commenting on the prospective juror’s willingness to serve, the Springfield Township
police department had investigated a criminal complaint against her husband—the
same department involved in this case. This connection alone is a legitimate, race-
neutral explanation for the peremptory strike. Thus, the trial court’s finding that the
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OHIO FIRST DISTRICT COURT OF APPEALS
state did not purposefully discriminate against the prospective juror is not clearly
erroneous. See Robinson at ¶ 13; Williams at ¶ 36. We overrule Hendrix’s second
assignment of error.
Ineffective Assistance of Counsel
{¶31} In his third assignment of error, Hendrix argues that he received
ineffective assistance of counsel.
{¶32} Ineffective assistance of counsel requires a showing that counsel’s
performance fell below an objective standard of reasonableness, and that the
defendant was prejudiced as a result of counsel’s deficient performance. State v.
Combs, 1st Dist. Hamilton No. C-120756, 2013-Ohio-3159, ¶ 24; Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
{¶33} Hendrix argues that the following actions of trial counsel constituted
ineffective assistance: failing to object to unrecorded sidebar conferences; failing to
use a peremptory challenge on a biased juror; failing to make an opening statement;
and failing to present expert medical and ballistics witnesses. We address each in
turn.
{¶34} Unrecorded sidebar conferences. A review of the transcript indicates
that the parties and the trial court conducted unrecorded sidebar conferences, which
were subsequently summarized in most instances by the trial court on the record.
Crim.R. 22 requires the recording of sidebar conferences in serious-offense cases,
and a trial court’s summary of sidebar conferences in lieu of a recording is error.
State v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517, ¶ 79-84 (1st Dist.). However, this
court has held that a defendant must demonstrate prejudice as a result of the
unrecorded sidebar conferences by using App.R. 9(C) to show that certain
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OHIO FIRST DISTRICT COURT OF APPEALS
information had been left out of the trial court’s summaries. See id. State v. Davis,
1st Dist. Hamilton No. C-130198, 2014-Ohio-794, ¶ 14.
{¶35} Hendrix argues that the unrecorded sidebar conversations prejudiced
him because the record does not reflect various objections he made at trial, for
example, regarding his Batson challenge or the use of prior convictions as
impeachment evidence. To demonstrate prejudice, Hendrix cannot rely on the
unrecorded sidebar conferences or the sidebar summaries given by the trial court,
and, instead, he must supplement the record with missing or inaccurate information,
which Hendrix has not done. See Davis at ¶ 14. Thus, Hendrix’s argument is
without merit.
{¶36} Failure to use a peremptory challenge. Hendrix contends that his
counsel erred by failing to use a peremptory challenge against Prospective Juror No.
12. During voir dire, Prospective Juror No. 12 stated that she would be persuaded by
four people who told the same story versus one person who told a different story.
Defense counsel asked the trial court to remove Prospective Juror No. 12 for cause.
The trial court then questioned the juror regarding her statement, and she clarified
that she would weigh each witness’s testimony independently. Prospective Juror No.
12 was then seated as a juror.
{¶37} The Ohio Supreme Court has opined regarding the reluctance of a
reviewing court to second-guess counsel’s decisions regarding voir dire. See State v.
Mundt, 115 Ohio St. 3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 63. Although defense
counsel had not yet used any peremptory challenges, defense counsel may have
found it unnecessary to use a peremptory challenge against Prospective Juror No. 12
after the trial court’s further questioning of her. The prospective juror’s clarifying
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OHIO FIRST DISTRICT COURT OF APPEALS
statement showed that she would independently weigh each person’s testimony, and
that she would not reach a result merely on quantity of evidence. Thus, defense
counsel could have made the strategic decision at that point to keep the prospective
juror, who would be open to believing his client’s story versus the story of the four
victims. Hendrix has not shown his counsel was ineffective for failing to use a
peremptory challenge.
{¶38} Failure to give an opening statement. The record shows that defense
counsel asked to defer an opening statement until after the state proceeded with its
case-in-chief; however, defense counsel ultimately did not give any opening
statement. This court will not second-guess trial-strategy decisions, and we will
presume that counsel rendered reasonable professional assistance. State v. Valines,
1st Dist. Hamilton No. C-130105, 2014-Ohio-890, ¶ 27. Counsel’s choice to forego
any opening statement may have been predicated on Hendrix’s decision to testify,
and the record shows that Hendrix told a different version of events at trial than he
did to police. Moreover, Hendrix has not demonstrated that the failure to give an
opening statement prejudiced him. See Strickland, 466 U.S. at 686, 104 S. Ct. 2052,
80 L. Ed. 2d 674.
{¶39} Expert testimony on bullet trajectory. Finally, Hendrix argues that his
counsel was ineffective for failing to present an expert witness that could have
testified to the trajectory of the bullet that passed through Hendrix’s body. Hendrix’s
speculation that an expert would have testified favorably for him does not
demonstrate ineffective assistance of counsel. See State v. Combs, 100 Ohio App. 3d
90, 104, 652 N.E.2d 205 (1st Dist.1994). This argument is without merit.
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{¶40} Because Hendrix failed to demonstrate ineffective assistance of
counsel, we overrule Hendrix’s third assignment of error.
Weight and Sufficiency of the Evidence
{¶41} We address Hendrix’s fourth and fifth assignments of error together,
in which he argues that insufficient evidence was adduced at trial to support the
jury’s findings of felonious assault and attempted murder with respect to White and
Tye, and that his convictions for attempted murder and felonious assault were
against the manifest weight of the evidence.
{¶42} As an initial matter, Hendrix was never sentenced on the felonious-
assault charges, because they were merged with the attempted-murder charges, so
Hendrix cannot appeal the jury’s findings with respect to the felonious-assault
charges. See Crim.R. 32(C); Columbus v. Ziegler, 10th Dist. Franklin Nos. 91AP-
1058, 91AP-1070 and 91AP-1071, 1992 Ohio App. LEXIS 1023 (Mar. 3, 1992) (in a
criminal case, no final, appealable order exists from an offense that has been merged
for the purposes of sentencing).
{¶43} As to the sufficiency of the evidence adduced to support his
convictions for attempted murder against White and Tye, Hendrix argues that he did
not shoot at or near Tye or White, and, at most, the evidence showed that Hendrix
shot three times in Raines’s direction near the firepit and once at Dillon.
{¶44} In an attempted-murder prosecution, a defendant’s specific intent to
kill another can be inferred from the defendant’s action in discharging a gun in that
person’s direction. State v. Wilson, 8th Dist. Cuyahoga No. 96098, 2011-Ohio-5653,
¶ 6, citing State v. Widner, 69 Ohio St. 2d 267, 270, 431 N.E.2d 1025 (1982). An
examination of the evidence in the light most favorable to the prosecution shows that
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OHIO FIRST DISTRICT COURT OF APPEALS
Tye and White had been outside in the front of Dillon’s home when Hendrix fired at
least three gunshots towards Dillon’s property. Tye testified that he had been out in
front of Dillon’s home and then moved to the side of Dillon’s truck in the driveway
once shots were fired. White testified that he had seen Hendrix aim at the firepit in
Raines’s direction, and fire two shots, and then Hendrix had turned toward White
and Dillon, who had been in front of Dillon’s house, and had pointed the gun at
them. Given the proximity of White and Tye to the shots fired by Hendrix, sufficient
evidence of attempted murder exists. See State v. Bell, 8th Dist. Cuyahoga No.
87769, 2006-Ohio-6592, ¶ 65 (sufficient evidence of attempted murder existed
where the victims had been in the defendant’s “line of fire,” although they had not
actually been hit by any bullets); State v. Jenks, 61 Ohio St. 3d 259, 612 N.E.2d 492
(1991).
{¶45} As to the weight of the evidence with respect to Hendrix’s attempted-
murder charges, Hendrix argues that the evidence showed that he had acted in self-
defense. A defendant bears the burden of proving self-defense by a preponderance of
the evidence and must show “(1) that he was not at fault in creating the violent
situation, (2) that he had a bona fide belief that he was in imminent danger of death
or great bodily harm and that his only means of escape was the force used, and (3)
that he did not violate a duty to retreat or to avoid the danger.” State v. Edwards, 1st
Dist. Hamilton No. C-110773, 2013-Ohio-239, ¶ 5.
{¶46} Credibility is an issue for the trier of fact. State v. Williams, 1st Dist.
Hamilton No. C-140199, 2015-Ohio-3968, ¶ 42. In this case, the jury was free to find
the testimony of the four victims more credible than Hendrix’s. Hendrix lied to
police when they interviewed him in the hospital, by telling police that he did not
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OHIO FIRST DISTRICT COURT OF APPEALS
have a gun that night and did not know why anyone would shoot at him. Hendrix
then reversed course and claimed self-defense at trial. Hendrix claimed that he lied
to police to protect his wife, because she owned the gun. The jury could have
certainly found it incredible that Hendrix would lie to police, who were investigating
serious charges stemming from a gun battle on a residential street, to protect his
wife, who was out of town at the time. By contrast, the four victims maintained from
the beginning that Hendrix had opened fire on them first. We cannot say Hendrix’s
convictions were against the manifest weight of the evidence. See State v.
Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997).
{¶47} We overrule Hendrix’s fourth and fifth assignments of error.
Cumulative-Error Doctrine
{¶48} In his sixth assignment of error, Hendrix contends that he was denied
a fair trial because of the cumulative effect of the errors at trial, which he identified
in his first five assignments of error.
{¶49} The cumulative-error doctrine permits reversal of a conviction where a
defendant has been denied a fair trial by the cumulative effect of errors, individually
deemed harmless. State v. Cook, 1st Dist. Hamilton No. C-140118, 2014-Ohio-4900,
¶ 15, citing State v. DeMarco, 31 Ohio St. 3d 191, 509 N.E.2d 1256 (1987), paragraph
two of the syllabus. In order to succeed under the cumulative-error doctrine, a
defendant must establish that the outcome of the trial would have been different
absent the errors by the trial court. See State v. Dieterle, 1st Dist. Hamilton No. C-
070796, 2009-Ohio-1888, ¶ 39. Given the evidence provided by the victims that
Hendrix had opened fire on them in a residential neighborhood after an argument,
and the lack of credibility in Hendrix’s self-defense testimony, this court cannot say
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OHIO FIRST DISTRICT COURT OF APPEALS
that, but for any of the alleged errors pointed out in Hendrix’s brief, the outcome of
his trial would have been different. We overrule Hendrix’s sixth assignment of error.
Excessive Sentence
{¶50} In his seventh assignment of error, Hendrix argues that his maximum,
consecutive sentences were contrary to law. Specifically, Hendrix argues that the
record does not support the seriousness and recidivism factors in R.C. 2929.12.
{¶51} Applying R.C. 2953.08(G)(2), this court will only modify or vacate a
sentence if it clearly and convincingly finds that either the record does not support
the mandatory sentencing findings or the sentence is otherwise contrary to law.
State v. Martin, 1st Dist. Hamilton No. C-150054, 2016-Ohio-802, ¶ 35, citing State
v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.); see also State v. Marcum,
Slip Opinion No. 2016-Ohio-1002. Although a court must consider the overriding
principles of felony sentencing, including R.C. 2929.12, the court need not make
specific findings on the record, and we can presume that a court considered the
factors, absent an affirmative demonstration in the record showing otherwise. State
v. Hamberg, 1st Dist. Hamilton No. C-140536, 2015-Ohio-5074, ¶ 17, citing State v.
Alexander, 1st Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 24.
{¶52} As to the seriousness factors, Hendrix argues that none of the factors
in R.C. 2929.12(B) apply to indicate that Hendrix’s crime was more serious than
conduct normally constituting the offense, and that all four factors under R.C.
2929.12(C) apply to indicate that his offense was less serious than conduct normally
constituting the offense. As to the recidivism factors in R.C. 2929.12(D) and (E),
Hendrix argues that the circumstances of this case are not likely to reoccur because
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OHIO FIRST DISTRICT COURT OF APPEALS
they “were so odd.” Hendrix acknowledges his criminal past, but argues that he had
responded favorably to criminal sanctions by leading a law-abiding life since 2009.
{¶53} We note that the factors listed in R.C. 2929.12(B), (C), (D), and (E) are
not exhaustive, and the explicit language of the statutes allows a court to consider
any other relevant factors. At the sentencing hearing, the trial court indicated that it
had considered Hendrix’s criminal history, as outlined in the presentence-
investigation report, and the nature and circumstances of the crimes. Therefore, the
record indicates that the trial court considered the seriousness and recidivism
factors, and Hendrix has not shown that the trial court erred. See State v. Finnell, 1st
Dist. Hamilton Nos. C-140547 and C-140548, 2015-Ohio-4842, ¶ 55.
{¶54} We overrule Hendrix’s seventh assignment of error.
Conclusion
{¶55} Because Hendrix failed to demonstrate the assigned errors, we affirm
the judgment of the trial court.
Judgment affirmed.
MOCK and STAUTBERG, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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