State v. Conner

[Cite as State v. Conner, 2014-Ohio-601.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99557
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTHONY CONNER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-566159
BEFORE: McCormack, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: February 20, 2014
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Jesse Canonico
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Anthony T. Conner, appeals his conviction and
sentence for aggravated murder, murder, felonious assault, discharge of a firearm on or
near prohibited premises, and having a weapon while under disability. After a thorough
review of the record, we affirm Conner’s convictions and sentence.
Procedural History
{¶2} On September 19, 2012, Conner was charged under a multi-count
indictment as follows: (1) Count 1 — aggravated murder of Damon D. Woodard; (2)
Count 2 — murder of Damon D. Woodard; (3) Count 3 — felonious assault of Damon D.
Woodard; (4) Count 4 — felonious assault of Damon D. Woodard; (5) Count 5 —
attempted murder of Marquis Hollowell; (6) Count 6 — felonious assault of Marquis
Hollowell; (7) Count 7 — felonious assault of Officer Nikolai Przybylski; (8) Count 8 —
discharge of firearm on or near prohibited premises; and (9) Count 9 — having weapons
while under disability. Count 9 was bifurcated and the remaining charges proceeded to a
jury trial. All counts, with the exception of Count 9, included one- and three-year firearm
specifications.
{¶3} Over the defense’s objections, the trial court found Marquis Hollowell
competent to testify. During the course of the proceedings, Conner moved for mistrial
four times, all of which the trial court denied. The trial court granted Conner’s Crim.R. 29
motion for acquittal on Counts 5 and 6 (attempted murder and felonious assault of
Hollowell), and it denied his motion as to the remaining counts.
{¶4} The jury found Conner guilty of Counts 1, 2, 3, 4, and 8, and not guilty of
Count 7. The court found Conner guilty of bifurcated Count 9. For sentencing purposes,
Counts 2, 3, and 4 were merged with Count 1. The court imposed the following
sentence: life on Count 1 (with possible parole at 30 years); three years on the firearm
specification; and six and one-half years on a probation violation on a different case. The
court ordered this sentence to be served consecutively. The court sentenced Conner to
eight years on Count 8 and three years on Count 9 and ordered that sentence to be served
concurrently. Conner is eligible for parole after 39½ years.
Substantive Facts
{¶5} Conner’s convictions arose out of events that occurred following
altercations at the Sirrah House, a nightclub with a history of fights, shots being fired, and
assaults. The Cleveland nightclub, located on Lee Road, between Judson Drive and
Lotus Drive, is routinely patrolled by Cleveland police officers. The following is a
summary of the pertinent evidence the state presented at trial.
{¶6} On the evening of August 20, 2012, during routine patrol, Officers Antonio
Curtis and Mister Jackson observed a fight break out at the entrance of the club within
minutes of their arrival on the scene. The officers testified that it appeared that the club’s
security was attempting to push a large, fighting crowd out of the bar and away from the
entrance. The officers attempted to disperse those who were involved in the multiple
fights that had pervaded the Sirrah House parking lot and nearby streets. Due to the
number of fights and the size of the crowd, Officer Curtis radioed for assistance. Officer
Nikolai Przybylski and his partner, Officer Katrina Ruma, responded to the call for
back-up.
{¶7} Officer Przybylski, responding to the call with lights and sirens activated,
parked his patrol car near the intersection of Judson Drive and Lee Road. Officer
Przybylski testified that upon his arrival, he witnessed a large amount of pedestrian and
vehicular traffic in the area. He observed “at least a hundred” people on the scene who
were “all over the place.” He further stated that there was a lot of arguing and
“[e]verybody was yelling at each other.” Once the crowd began to clear, he observed a
young, black male in a white t-shirt lying on the ground holding his head and another
black male standing next to him, on the “edge of the driveway apron,” wearing blue jeans
and a long-sleeved red plaid shirt. Officer Przybylski testified that the red shirt stood out
in his mind because it “seemed very strange” that someone was wearing a long-sleeved
shirt in the summer.
{¶8} Officer Przybylski further testified as follows: The male with the red plaid
shirt pulled a gun out of the waistband of his pants. Officer Przybylski saw the muzzle of
the gun as the male with the red shirt pointed the gun in the direction of his zone car. The
male then shot two to three times in the direction of his car. At the time, Officer
Przybylski was still seated in his car, with the window down. Officer Przybylski stated
that despite approximately “a dozen people meandering” between his car and the shooter,
he had “a clear, unobstructed view” of the shooter and “no one was in [his] line of
vision.” Officer Przybylski stated that the commercial area was well lit and he was able
to see the shooter’s face and identify the gun as a .45-caliber “two-tone[d] * * * black and
chrome or black and silver” handgun. Officer Przybylski testified that it appeared that the
shooter was looking at him and his partner and was shooting at them.
{¶9} When Officer Przybylski observed the shooter shooting in the direction of
the patrol car, he removed his gun from his holster and exited his vehicle. While exiting
the vehicle, Officer Przybylski, maintaining eye contact with the shooter, saw the shooter
“pivot” and move from facing the officer to moving to the shooter’s right. Officer
Przybylski stated that he then saw the muzzle again come up and saw the shooter fire
another three to four shots while facing north and west at an angle. He began to run
towards the shooter. He stated that after the first round of shots, the crowd cleared
considerably. He proceeded to chase the shooter. During the chase, he repeatedly yelled at
the shooter to stop and drop the gun. He observed the shooter run in between cars, “dip[]
down or crouch[] down” near a “dark-colored car” and “almost immediately pop[] back
up” facing him. While continuing to chase the shooter, he saw the shooter’s arms
“coming up at the waist.” Believing the shooter would shoot him, Officer Przybylski fired
at him. Officer Przybylski testified that after he shot at the shooter, the shooter turned
away from him and proceeded in a southeast direction toward Judson Drive, where the
foot chase continued and Officer Przybylski fired a second shot at the shooter.
{¶10} Officer Curtis testified that he heard gunshots and proceeded toward the
sound of the gunshots, where he observed Officer Przybylski chasing a male in the area of
Judson Drive. He then joined Officer Przybylski in the pursuit. Officer Przybylski,
seeing Officer Curtis approach, advised Officer Curtis that the male he was chasing was
the shooter. Both officers observed the shooter run in between houses, and as they lost
sight of him, they heard the rattling of a fence behind a house. They no longer heard the
shooter’s footsteps. The officers discovered the shooter lying between a fence and a
garage, with his hands under his backside. Observing him rustle his hands under his
backside, the officers yelled for the shooter to stop and to show his hands. Officer
Przybylski picked up the suspect, and both officers handcuffed him. The officers found
keys, a cell phone, and a driver’s license on the ground where the shooter had been
lying. They did not, however, find a gun. The officers later learned that a gun had been
located.
{¶11} The officers placed the shooter under arrest. During that time, the shooter
denied any involvement in the shooting. Rather, he stated that he had a twin wearing the
exact same outfit — blue jeans and a red plaid long-sleeved shirt.
{¶12} Officer Przybylski positively identified Conner as the individual who fired
shots at him shortly after he arrived on the scene and the same person who was carrying
the handgun while running away from him. He also identified the state’s exhibit Nos.
61 and 62, a red plaid shirt and a pair of blue jeans, with one hundred percent certainty, as
the clothing the shooter was wearing that same evening. Officer Przybylski testified that
he did not observe any other individual that evening wearing anything similar to the red
plaid shirt he identified as the shirt the shooter was wearing.
{¶13} Officers Daniel Dickens and Sarene Saffo, who also responded to the call
for assistance at the Sirrah House, observed a parking lot full of cars and people on the
sidewalk and crossing the street. They heard gunshots shortly after arriving on the
scene. Both officers observed the shooter. Officer Dickens testified that he saw a black
male with a short haircut, wearing a red, long-sleeved shirt, shooting northbound. Both
officers identified state’s exhibit No. 61 as the shirt the shooter was wearing on the
evening in question. The officers also identified Conner as the shooter who was wearing
that red, long-sleeved shirt. Officers Dickens and Saffo, who also joined in the chase
with Officers Przybylski and Curtis, testified that they observed the shooter running in
between the cars and then southbound to the sidewalk on Judson Drive. They stated that
they only lost sight of the shooter for a brief moment when the shooter ducked down by a
parked car, until he popped back up and continued to run out of the parking lot.
{¶14} Following the shooter’s arrest, Officers Dickens and Saffo returned to the
parking lot where they had last seen the shooter with a gun. They testified that they
discovered a black and silver handgun on the ground in the parking lot where they had
observed the shooter duck down between cars and pop back up. The officers identified
state’s exhibit No. 60, the .45 caliber Kimber semiautomatic firearm, as the gun that they
discovered in the parking lot and the same one they saw the shooter running with and
firing. Officer Przybylski also identified state’s exhibit No. 60 as the gun he saw the
shooter firing.
{¶15} Officer Ruma, who initially arrived on the scene with Officer Przybylski,
heard gunshots while she attempted to control the large crowd that had dispersed
throughout the streets and parking lots. She then observed Officer Przybylski exit the
zone car and run towards Judson Drive. She radioed for back-up and exited the
vehicle. She testified that while on the sidewalk just north of Judson Drive, she heard a
second round of gunshots and observed Officers Przybylski, Dickens, and Saffo chasing a
black male. Shortly thereafter, Officer Ruma observed a male who was bleeding from
the chest lying on the ground of the parking lot near Lee Road, with an apparent gunshot
wound. She called for an ambulance and attempted to provide some medical assistance
to the victim. Officer Ruma testified that she and Officer Jackson also attempted to
control a large, angry crowd that had surrounded them and the victim.
{¶16} The victim, identified as Damon D. Woodard, died from his
injuries. Deputy medical examiner, Dr. Andrea McCollum, conducted the autopsy and
concluded that Mr. Woodard died from multiple gunshots: one to his chest, one to his
right arm, and one to his right knee. She recovered a bullet from a penetrating wound in
Mr. Woodard’s knee.
{¶17} Detective James Raynard collected several items from the crime scene,
including the black and gray .45 caliber Kimber firearm and six .45 spent shell
casings. He testified as to the locations throughout the parking lot and on the sidewalk
where the shell casings were discovered. He stated that one of the casings was
discovered on the south sidewalk of the parking lot near the driveway on Judson Drive.
Detective Raynard also collected a suspected bullet fragment and scattered broken
automobile glass located in and around a sport utility vehicle parked in the southwest
corner of the parking lot.
{¶18} Detective Todd Clemens performed a gunshot residue test on Conner’s
hands and processed the firearm for fingerprints. No fingerprints, however, were found
on the weapon. Forensic scientist Lisa Przepynszy analyzed the gunshot residue test and
reported that no gunshot residue was found on Conner’s hands. Ms. Przepynszy also
collected gunshot residue samples from Conner’s shirt and found no evidence of gunshot
residue on the cuffs of Conner’s shirt. Ms. Przepynszy testified that the absence of
gunshot residue is indicative of an individual not having discharged a firearm; however,
due to the ease with which gunshot residue can be removed or lost from a surface, a
negative result can occur from circumstances such as washing, other contact with hands,
wind, rain, running, or sweating.
{¶19} Ms. Przepynszy analyzed the victim’s clothing for blood, defects indicating
a bullet hole, and gunshot residue such as fouling and bullet wipe. State’s exhibit No. 69
was identified as a yellow shirt belonging to Woodard and the state’s exhibits Nos. 27
through 31 were identified as close-up photographs of Woodard’s yellow shirt. In
examining Woodard’s shirt, Ms. Przepynszy determined that the muzzle to target distance
was approximately two to four feet, an intermediate range.
{¶20} Detective James Kooser, an expert in firearms and toolmark examination,
testified that he examined the .45 caliber Kimber firearm that was discovered from the
crime scene and determined that the firearm was operable. He also examined the six
spent cartridge casings collected from the crime scene. He determined that all six casings
were fired from the .45 caliber Kimber firearm that was discovered at the scene. Finally,
Detective Kooser examined the bullet that Dr. McCollum removed from the victim’s knee
during the autopsy, known as the morgue bullet. He determined that the morgue bullet
was fired by the same .45 caliber Kimber pistol.
{¶21} Deandre Stephens, a friend of Conner’s, testified that he has known Conner
for approximately ten years and they are good friends. He testified that, on the night in
question, he and Conner went to the Sirrah House. Stephens borrowed his girlfriend
Erica Stevenson’s blue Pontiac G6. Stephens testified that Conner drove the G6 to the
Sirrah House and parked it in the parking lot on Lee Road. While at the Sirrah House,
Stephens and Conner met up with Stephens’s cousin, Sharda Elmore, and friends Jeremy
Milner and Brandon Crawford.
{¶22} Stephens testified that a fight broke out at the Sirrah House and the club’s
disc jockey made them leave. He stated that he got in a car with Elmore, and Elmore
began to drive away, but he stopped the car because he thought their friend Crawford had
been shot. At this point, Stephens’s testimony begins to conflict with the statements
Stephens made during a police interview on August 21. The court granted the state’s
request to treat Stephens as a hostile witness.
{¶23} Brandon Crawford, a friend of Conner’s, testified that he saw his friends,
Elmore, Milner, and Conner at the Sirrah House. He stated that he “grew up with them”
and knew them from the neighborhood. Crawford stated that while in the Sirrah House,
a fight broke out in which someone swung at him. The fight continued outside of the
club where Crawford “got hit with something,” and someone “stomped [him] to sleep.”
Crawford testified that a friend then dragged him across the street and set him by a police
car where he remained unconscious “for about five minutes.” He further testified at trial
that if someone were to fight him, his friends would help him.
{¶24} Sharda Elmore testified that Conner is “like a brother” to him, referring to
him as “Ant.” He and Conner have known each other throughout “childhood and adult
life” from the neighborhood. Elmore testified that he was joining his friends, Conner,
Crawford, Stephens, and Milner at the Sirrah House. He also testified that “the Benham
boys” were fighting. He identified Marquis Hollowell as one of the Benham boys and
stated that Hollowell has a “pending case” with his girlfriend.
{¶25} Elmore testified that he witnessed Hollowell and Milner “having words.”
He attempted to intervene and that is when the altercation escalated. Elmore stated that
Hollowell and “six other guys” were in front of him in the bar, Milner and Crawford were
standing on either side of him, and Conner, Stephens, and another friend were standing
behind him. Following an exchange of words between Hollowell and Elmore, one of the
Benham boys in a yellow shirt and dreads threw a punch at Elmore and they “got to
tussling.” Security then broke up the fight and escorted Hollowell’s group outside,
followed by Elmore and his group. Elmore testified that he and his friends were
separated and he continued fighting in the parking lot with “some other guys” that were
with Hollowell. He further testified that he was eventually surrounded by Hollowell and
approximately 50 other people with Hollowell in the area when he saw Crawford lying on
the ground hurt. Elmore was eventually smacked with a gun by one of the Benham boys
and knocked unconscious. He was later treated for a broken jaw.
{¶26} Marquis Hollowell, a friend of Damon Woodard’s, was present on the night
in question and was interviewed by Detective Raymond Diaz on the scene and later at the
police station. Hollowell had been declared incompetent to stand trial in his own defense
on a different matter; however, following a competency hearing in this matter, the trial
court found him competent to testify.
{¶27} Detective Diaz testified that Hollowell made a spontaneous statement on the
scene that Conner had shot Woodard. At trial, however, Hollowell claimed a complete
lack of memory of the incident. He was therefore called as a court’s witness.
Hollowell’s videotaped statement to Detective Diaz was played during his testimony for
impeachment purposes.
{¶28} Divard Jones, the manager of the Sirrah House, was working the evening of
August 20, 2012. He testified that on the night in question, there were two off-duty
Cleveland police officers working security detail at the club. He further testified that,
prior to entering the club, everyone is subject to a pat-down for weapons or potentially
harmful objects by the officers working security at the door. Jones stated that he
witnessed an altercation in the club around closing time and ushered the people outside,
“contain[ing]” the inside of the club.
Assignments of Error1
I. The trial court erred by denying Appellant’s motion for a mistrial.
II. The trial court erred by finding Marquis Hollowell competent to testify,
by finding him a hostile witness and by allowing the state to play
Hollowell’s prior recorded statements to the jury in violation of Appellant’s
due process right to a fair trial and his constitutional right to confrontation.
III. Appellant’s convictions were not supported by sufficient evidence and
the trial court erred by denying his motions for acquittal.
IV. The convictions were against the manifest weight of the evidence.
V. The improper comments made during closing arguments amounted to
plain error and/or counsel’s failure to object to them denied Appellant his
constitutional right to effective assistance of counsel.
VI. The trial court erred by imposing consecutive sentences and by failing
to merge all allied offenses of similar import.
Testimony of Marquis Hollowell
{¶29} Conner contends in his second assignment of error that the trial court erred
in allowing Marquis Hollowell to testify. He claims that the court erred in finding
Hollowell competent to testify, declaring him a hostile witness, and allowing the state to
play Hollowell’s prior recorded statements to the jury.
Witness Competency
For ease of discussion, the assignments of error will be addressed out of sequence.
1
{¶30} Conner first argues that the trial court erred in finding Hollowell competent
to testify as a witness when he was deemed incompetent to stand trial in his own
defense. In support of his argument, Conner submitted a competency report prepared by
psychologist Dr. Jennifer Franklin, dated October 15, 2012, in which Dr. Franklin opined
that Hollowell suffers from “mild mental retardation” with a full scale IQ of 59 and a
mood disorder.
{¶31} The determination of witness competency is within the sound discretion of
the trial judge. State v. Penque, 8th Dist. Cuyahoga No. 99209, 2013-Ohio-4696, ¶ 25,
citing State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991). “‘The trial
judge, who saw the [witnesses] and heard their testimony and passed on their
competency, was in a far better position to judge their competency than is this court,
which only reads their testimony from the record * * *.’” State v. Bradley, 42 Ohio St.3d
136, 141, 538 N.E.2d 373 (1989), quoting Barnett v. State, 104 Ohio St. 298, 301, 135
N.E. 647 (1922). We therefore review the trial court’s decision for an abuse of
discretion, which implies that the court’s attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶32} Evid.R. 601(A) provides that every person is competent to be a witness
except “[t]hose of unsound mind * * *, who appear incapable of receiving just
impressions of the facts and transactions respecting which they are examined, or of
relating them truly.”
{¶33} The term “unsound mind” includes all forms of mental retardation. R.C.
1.02(C); State v. Sanders, 8th Dist. Cuyahoga No. 86405, 2006-Ohio-809. Being of
unsound mind, however, does not automatically render a witness incompetent to
testify. Bradley at 140. “‘A person, who is able to correctly state matters which have
come within his perception with respect to the issues involved and appreciates and
understands the nature and obligation of an oath, is a competent witness notwithstanding
some unsoundness of mind.’” Id. at 140-141, quoting State v. Wildman, 145 Ohio St.
379, 61 N.E.2d 790 (1945), paragraph three of the syllabus.
{¶34} Moreover, competency under Evid.R. 601(A) contemplates several
characteristics: (1) the individual must have the ability to receive accurate impressions of
fact; (2) the individual must be able to accurately recollect those impressions; and (3) the
individual must be able to relate those impressions truthfully. State v. Grahek, 8th Dist.
Cuyahoga No. 81443, 2003-Ohio-2650, ¶ 25, citing State v. Said, 71 Ohio St.3d 473, 644
N.E.2d 337 (1994).
{¶35} As Conner correctly notes, the test for incompetency to stand trial and the
test to determine the competency of a witness to testify are not the same. State v.
Strickland, 2d Dist. Montgomery No. 10968, 1988 Ohio App. LEXIS 5118 (Dec. 20,
1988). In Strickland, the witness was considered “moderately mentally retarded” and
had been previously determined incompetent to stand trial. He was called as a witness to
testify against Strickland. Prior to trial, Strickland challenged the witness’s competency
to testify. The trial court conducted a competency hearing and determined that the
witness was competent to testify, finding that he was capable of discerning between the
truth and a lie and of appreciating the importance of telling the truth. In upholding the
decision of the trial court, the court of appeals noted that the expert witness articulated
her reasons why her findings that the witness was competent to testify were not
inconsistent with her previous opinion that he was incompetent to stand trial on unrelated
criminal charges. Id. at *9.
Although evidence that a proposed witness is incompetent to stand trial is
relevant on the issue of whether he is also incompetent to testify as a
witness, a finding that the witness is incompetent to stand trial as an
accused does not necessarily preclude a finding by the court that the witness
is competent to testify.
Id.
{¶36} Here, the trial court conducted a competency hearing of Marquis Hollowell
during which the court, the prosecutor, and the defense attorney questioned him regarding
his name, age, family members, level of education, and his understanding of why he was
in court. He knew the year, but did not know the date, the month, or the season. He told
the judge that he finished the 11th grade, but he cannot read.
{¶37} When asked about his family members, Hollowell identified three brothers
and three sisters, as well as their names and ages. He knew that he arrived in jail on
August 23, his birthday, and stated that he had been in jail for about four to five
months. When the prosecutor asked Hollowell if he had been in jail that entire time, he
told the prosecutor that he “went to Northcoast for a month and a half.” When asked
what the case is about, he replied, “My friend getting killed” and correctly identified the
victim, Damon Woodard. He was able to recall some of the events of the night in
question. When asked if he saw the person who shot Woodard, however, Hollowell
replied, “Yes, but I start[ed] taking medications * * * and I don’t remember nothing that
happened that night.”
{¶38} During the hearing, Hollowell stated that he understood he must tell the
truth in court. He further demonstrated that he knew the difference between the truth and
a lie.
{¶39} Following the hearing, the trial court reviewed the psychologist’s report and
determined that the report did not address Hollowell’s ability to receive just impressions
and to testify in this matter. Rather, the report addressed Hollowell’s ability to
understand abstract concepts and assist in his own defense. The court further noted that
the report indicated that Hollowell’s understanding of the roles of the prosecutor and the
judge improved with some education and the doctor found that Hollowell “could be
restored to competence within the time period allowed.”
{¶40} After reviewing the psychologist’s report, the trial court concluded, based
on Hollowell’s behavior, his answers at the hearing, and the psychologist’s report, that
Hollowell was competent to testify.
{¶41} A review of Hollowell’s testimony indicates that he was able to perceive,
recollect, and relate facts truthfully. Although he was unable to recall some of the
incident, “imperfect recollection goes to the credibility of a witness; it does not, in itself,
render a witness incompetent.” Sanders, 8th Dist. Cuyahoga No. 86405, 2006-Ohio-809,
at ¶ 14. As such, we cannot find that the trial court abused its discretion in finding
Hollowell competent to testify.
Court’s Witness
{¶42} Conner also argues that the trial court erred when it allowed the state to treat
Hollowell as a hostile witness and allowed the state to play Hollowell’s videotaped
statement to the jury. We note, however, that the state did not treat Hollowell as a hostile
witness. Rather, the court called Hollowell as a court’s witness in accordance with
Evid.R. 614.
{¶43} Ordinarily, the credibility of a witness may be attacked by any party “except
that the credibility of a witness may be attacked by the party calling the witness by means
of a prior inconsistent statement only upon a showing of surprise and affirmative
damage.” Evid.R. 607(A). Under Evid.R. 614(A), the court may, “on its own or at the
suggestion of a party, call witnesses, and all parties are entitled to cross-examine
witnesses thus called.” In the event that the court calls a witness, however, the state may
impeach the witness without demonstrating surprise. State v. Stadmire, 8th Dist.
Cuyahoga No. 81188, 2003-Ohio-873, citing State v. Dacons, 5 Ohio App.3d 112, 449
N.E.2d 507 (10th Dist.1982), syllabus.
{¶44} This court has held that when a witness claims a complete lack of memory
regarding the events described in a prior statement, the prior statement is considered
inconsistent and is therefore admissible. State v. Wilbon, 8th Dist. Cuyahoga No. 82934,
2004-Ohio-1784, ¶ 26, citing State v. Portis, 10th Dist. Franklin No. 01AP-1458,
2002-Ohio-4501. In order to introduce a witness’s prior inconsistent statement, a proper
foundation must be laid. Id. at ¶ 26, citing State v. Soke, 105 Ohio App.3d 226, 663
N.E.2d 986 (8th Dist.1995). A proper foundation for the admission of extrinsic evidence
of a prior inconsistent statement is made upon a witness stating that she did not recall
making the prior statement. See Portis.
{¶45} In this case, Hollowell made a statement to the police following the shooting
in which he identified Conner as the individual who shot Woodard. Prior to Hollowell
testifying, the court held a competency hearing in order to determine whether he was
competent to testify as a witness. During his competency hearing, Hollowell claimed
that he no longer remembered the events of the night in question or making a statement to
the police.
{¶46} The state then requested that the court call Hollowell as a court’s witness
under Evid.R. 614(A). After hearing arguments on the matter, the court agreed to call
Hollowell as a court’s witness and allowed both parties to cross-examine Hollowell as to
his prior statements identifying Conner as the shooter. Upon cross-examination,
Hollowell testified that he did not remember what happened on August 20, nor did he
remember giving a statement to Detective Diaz. Thereafter, the state played Hollowell’s
videotaped interviews with Detective Diaz. When questioned about the statement,
Hollowell again replied that he has no memory of the night Woodard was killed. In
instructing the jury, the court advised the jury that Hollowell’s videotaped interview is not
to be considered as substantive evidence, but rather, it is for impeachment purposes only.
{¶47} In light of the foregoing, we find that the trial court properly called
Hollowell as a court’s witness and the state laid the proper foundation to impeach
Hollowell’s testimony based upon Hollowell’s claim of a complete lack of memory
regarding the events of the night of August 20. The videotaped statement was
inconsistent and therefore admissible under the circumstances. Wilbon, 8th Dist.
Cuyahoga No. 82934, 2004-Ohio-1784, at ¶ 26. As such, the trial court did not err in
allowing the state to play Hollowell’s prior videotaped statement to the jury for purposes
of impeaching Hollowell’s credibility.
{¶48} Conner’s second assignment of error is overruled.
Sufficiency of the Evidence
{¶49} In his third assignment of error, Conner contends that the trial court erred in
denying his Crim.R. 29(A) motion for acquittal because there was insufficient evidence
that he committed aggravated murder, murder, and felonious assault of Damon Woodard.
{¶50} A Crim.R. 29(A) motion challenges the sufficiency of the evidence. When
reviewing a challenge of the sufficiency of the evidence, an appellate court examines the
evidence admitted at trial and determines whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” Id. A sufficiency challenge requires us to review
the record to determine whether the state presented evidence on each of the elements of
the offense. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
A reviewing court is not to assess “whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.”
State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
Aggravated Murder
{¶51} Conner contends that there was insufficient evidence of prior calculation
and design in order to support his conviction for aggravated murder.
{¶52} R.C. 2903.01(A) provides that “[n]o person shall purposely, and with prior
calculation and design, cause the death of another * * *.” A person acts purposely when
it is his specific intent to cause a certain result. R.C. 2901.22(A).
{¶53} “Prior calculation and design” indicates “‘studied care in planning or
analyzing the means of the crime as well as a scheme encompassing the death of the
victim.’” State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 20, quoting
State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997). The scheme must be
“‘designed to implement the calculated decision to kill.’” State v. D’Ambrosio, 67 Ohio
St.3d 185, 196, 616 N.E.2d 909 (1993), quoting State v. Cotton, 56 Ohio St.2d 8, 11, 381
N.E.2d 190 (1978). Prior calculation and design can be found even when a plan to kill is
quickly conceived and executed within minutes. State v. Coley, 93 Ohio St.3d 253, 264,
754 N.E.2d 1129 (2001). A momentary impulse, however, is insufficient. See State v.
Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996.
{¶54} The existence of prior calculation and design is determined on a
case-by-case analysis of the facts and the evidence. Hill at ¶ 21, citing State v. Jones, 91
Ohio St.3d 335, 345, 744 N.E.2d 1163 (2001). The facts of a particular case can
demonstrate that the defendant had adopted a plan to kill. Conway at ¶ 46.
{¶55} In determining whether a defendant acted with prior calculation and design,
the Ohio Supreme Court has delineated three factors a court should consider:
(1) Did the accused and victim know each other, and if so, was that
relationship strained?
(2) Did the accused give thought or preparation to choosing the murder
weapon or murder site? and
(3) Was the act drawn out or “an almost spontaneous” eruption of events?
State v. Bolan, 8th Dist. Cuyahoga No. 95807, 2011-Ohio-4501, ¶ 14, quoting Taylor at
19; State v. Jenkins, 48 Ohio App.2d 99, 355 N.E.2d 825 (8th Dist.1976). These factors
“must be weighed together and viewed under the totality of all circumstances of the
homicide.” Jenkins at 102.
{¶56} Here, the evidence presented at trial sufficiently supports the jury’s
determination of prior calculation and design. The evidence demonstrates that there was
a strained relationship between Conner’s group of close friends (Stephens, Milner,
Crawford, and Elmore) and Marquis Hollowell’s group (identified as the Benham boys
and includes the victim, Damon Woodard). Elmore testified that Hollowell has a
“pending case” with Elmore’s girlfriend. The record shows that fighting ensued between
the two separate groups, following a heated exchange of words between them, for which
Conner was present. Elmore testified that one of the Benham boys in a yellow shirt and
dreads threw a punch at him. The evidence shows that Woodard, a friend of Hollowell,
was wearing a yellow shirt. Both Crawford and Elmore were injured during the fighting.
{¶57} The evidence also shows that Conner gave thought in choosing a murder
weapon. Divard Jones, the manager of the Sirrah House, testified that every person who
enters the club is subject to a pat-down for weapons prior to entering the club. It is
reasonable to believe that Conner did not have a weapon on his person while he was
inside the club. At some point after the altercation inside the club and after he and his
group of friends were ushered outside, Conner made the deliberate decision to retrieve a
gun in order to shoot Woodard.
{¶58} Finally, the evidence shows that Conner’s actions went beyond a momentary
impulse, showing that he had formulated a plan to kill. Officer Przybylski, upon his
arrival on the scene, observed Conner standing next to a young, black male in a white
t-shirt lying on the ground holding his head. He then saw Conner point the gun in the
direction of his zone car and shoot two to three times in the direction of his car. While
exiting his vehicle, Officer Przybylski observed Conner “pivot” and move from facing
him to moving to Conner’s right and shooting another three to four shots. This evidence
is sufficient to show that Conner made a deliberate decision to fire two rounds of shots
and he strategically positioned himself to carry out his plan.
{¶59} Although rather quickly conceived and executed in a short period of time, a
rational trier of fact could have concluded beyond a reasonable doubt that Conner had
formulated a plan to kill Woodard in retaliation for injuring a close friend. There is
sufficient evidence to show that, after observing the altercation between his close friends
and the Benham boys inside the Sirrah House and in the parking lot, and after observing
Crawford’s injuries, Conner retrieved a gun and, with prior calculation and design,
decided to shoot Woodard.
Felony Murder and Felonious Assault
{¶60} Conner contends that there was insufficient evidence to support his
conviction for murder because there was insufficient evidence that he committed the
predicate offense of felonious assault. He further contends that there was no evidence
that Conner knowingly caused or attempted to cause physical harm to Damon Woodard
with a deadly weapon. In support of his argument, Conner claims that there was a large,
aggressive crowd and a chaotic scene, during which no one actually witnessed him shoot
at anyone or anything in particular.
{¶61} Under R.C. 2903.02(B), felony murder, “[n]o 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.” In this case, the
underlying felony giving rise to the felony murder is the felonious assault against Damon
Woodard.
{¶62} Under R.C. 2903.11(A)(1), felonious assault, “[n]o person shall knowingly
* * * [c]ause serious physical harm to another.” R.C. 2903.11(A)(2) provides that “[n]o
person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * *
by means of a deadly weapon or dangerous ordnance.” An individual “acts knowingly,
regardless of his purpose, when he is aware that his conduct will probably cause a certain
result or will probably be of a certain nature. A person has knowledge of circumstances
when he is aware that such circumstances probably exist.” R.C. 2901.22(B).
{¶63} It is common knowledge that a firearm is an inherently dangerous
instrumentality, the use of which is reasonably likely to produce serious injury or death.
State v. Willis, 8th Dist. Cuyahoga No. 99735, 2014-Ohio-114, ¶ 25, citing State v.
Widner, 69 Ohio St.2d 267, 270, 431 N.E.2d 1025 (1982). Moreover, “shooting a gun in
a place where there is risk of injury to one or more persons supports the inference that the
offender acted knowingly.” State v. Hunt, 8th Dist. Cuyahoga No. 93080,
2010-Ohio-1419, ¶ 19, citing State v. Brooks, 44 Ohio St.3d 185, 192, 542 N.E.2d 636(1989).
{¶64} Here, the state offered overwhelming evidence that Conner fired the shots
that struck and killed Damon Woodard. Officer Przybylski testified that he observed a
male with a long-sleeved, red shirt pull a gun out of the waistband of his pants, point the
gun in the direction of his zone car, and fire two to three shots in his direction. He then
witnessed the shooter pivot, slightly changing his direction, and shoot another three to
four shots. Officer Przybylski positively identified Conner as the individual who fired
shots and the same person who was carrying the handgun while running away from
him. He also identified the state’s exhibit Nos. 61 and 62, a red plaid shirt and a pair of
blue jeans, with one hundred percent certainty, as the clothing the shooter was wearing
that same evening.
{¶65} Officers Dickens and Saffo also identified Conner as the shooter. They
identified state’s exhibit No. 61 as the shirt the shooter was wearing on the evening in
question. Officers Dickens, Saffo, and Przybylski testified that they only lost sight of the
shooter for a brief moment, when the shooter ducked down briefly by a parked car and
popped back up and continued to run. Officers Dickens and Saffo recovered a .45
caliber Kimber semiautomatic firearm, state’s exhibit No. 60, from the location where the
shooter had momentarily ducked down. All three officers identified state’s exhibit No.
60 as the gun they saw Conner firing.
{¶66} Finally, ballistics evidence showed that the .45 caliber Kimber firearm that
was discovered at the crime scene was operable and the six spent cartridge casings
collected from the scene were fired from the .45 caliber Kimber firearm. Detective
Kooser testified that the morgue bullet that was removed from Woodard’s body was fired
by the same .45 caliber Kimber pistol.
{¶67} In light of the above, after viewing the evidence in a light most favorable to
the prosecution, we conclude that any rational trier of fact could have found the essential
elements of aggravated murder, murder, and felonious assault proven beyond a reasonable
doubt.
{¶68} Conner’s third assignment of error is overruled.
Manifest Weight of the Evidence
{¶69} In this fourth assignment of error, Conner contends that the convictions for
aggravated murder, murder, and felonious assault, along with the conviction for discharge
of a firearm and having a weapon while under disability, are against the manifest weight
of the evidence.
{¶70} Unlike sufficiency of the evidence, manifest weight of the evidence raises a
factual issue.
“The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
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. The discretionary power to grant a
new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.”
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 511, quoting Martin, 20 Ohio App.3d at
175, 485 N.E.2d 717.
{¶71} In evaluating a manifest weight claim, “the weight to be given the evidence
and the credibility of the witnesses are primarily for the trier of the facts.” State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
When examining witness credibility, “the choice between credible witnesses and their
conflicting testimony rests solely with the finder of fact and an appellate court may not
substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d
120, 123, 489 N.E.2d 277 (1986). A factfinder is free to believe all, some, or none of the
testimony of each witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga No.
98538, 2013-Ohio-1184, ¶ 18.
{¶72} In support of his argument that his convictions for aggravated murder,
murder, and felonious assault are against the manifest weight of the evidence, Conner
“incorporates the elements of the offenses” set forth in his sufficiency challenge. He
further provides that the jury must have improperly considered the testimony of Hollowell
and that the testimony of the witnesses who did identify Conner as the shooter were
biased and not credible.
{¶73} As we discussed under Conner’s third assignment of error, the state
provided substantial evidence to sustain Conner’s convictions, and we incorporate our
prior analysis herein. With respect to the testimony of Marquis Hollowell, we note that
the trial court instructed the jury not to consider the videotaped interview of Hollowell as
substantive evidence, but rather for impeachment purposes only. We have no basis to
find that the jury did not follow the court’s instructions, especially in light of all of the
evidence outlined previously in our opinion.
{¶74} Conner also argues that the testimony of the police officers who identified
him as the shooter are not credible. Specifically, he notes that Officer Przybylski was not
a disinterested party and he had a personal interest in the case because he had fired his
weapon and was the subject of a deadly force investigation.
{¶75} The credibility of the witnesses and the weight of the evidence, however, is
primarily for the trier of fact, and a reviewing court must not reverse a verdict where the
trier of fact could reasonably conclude from substantial evidence that the state has proven
the offense beyond a reasonable doubt. State v. Chavez, 8th Dist. Cuyahoga No. 99436,
2013-Ohio-4700, ¶ 24, citing DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, at paragraphs
one and two of the syllabus. Because the factfinder has the opportunity to see and hear
the witnesses, the cautious exercise of the discretionary power of the reviewing court to
find that a judgment is against the manifest weight of the evidence requires that
substantial deference be extended to the factfinder’s determinations of credibility. State
v. Robinson, 8th Dist. Cuyahoga No. 99290, 2013-Ohio-4375, citing State v. Lawson, 2d
Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS 3709 (Aug. 22, 1997).
{¶76} Here, in addition to the testimony of Officer Przybylski, Officers Dickens
and Saffo also identified Conner as the shooter and the weapon recovered at the scene as
the gun Conner was firing. Detective Kooser testified that the morgue bullet that was
removed from Woodard’s body, as well as the six spent cartridge casings collected from
the scene, were fired by the same .45 caliber Kimber pistol the officers saw Conner firing
and the weapon they recovered from the scene.
{¶77} The trier of fact heard the above testimony and was free to believe all, some,
or none of the testimony of each witness appearing before it. After examining the entire
record, weighing all the evidence and all reasonable inferences, we are not able to
conclude that the jury clearly lost its way in finding Conner guilty of aggravated murder,
murder, and felonious assault.
{¶78} For these same reasons, we find that the convictions for discharging a
firearm on or near prohibited premises, in violation of R.C. 2923.162(A)(3), and having
weapons while under disability, in violation of R.C. 2923.13(A)(2), are not against the
manifest weight of the evidence.
{¶79} Under R.C. 2923.162(A)(3), the state was required to prove that Conner
discharged a firearm upon or over a public road or highway and the violation caused
physical harm to Damon Woodard. Based on the evidence outlined in this opinion, there
was sufficient evidence that Conner fired the gun at Woodard. Moreover, Officer
Przybylski testified that he observed Conner on the “edge of the driveway apron” where
he shot in the direction of his zone car, which was parked on the street near the
intersection of Lee Road and Judson Drive. A .45 caliber spent shell casing, identified as
having been fired from the handgun Conner was seen firing, was discovered on the south
sidewalk of the parking lot near the driveway on Judson Drive. Based on these facts, it
was not against the weight of the evidence to find that the shots fired by Conner were
discharged over a public road.
{¶80} Under R.C. 2923.13(A)(2), the state was required to prove that Conner did
“knowingly acquire, have, carry, or use any firearm or dangerous ordnance,” and that he
was under indictment for or convicted of “any felony offense of violence.” The state
submitted exhibit No.1, a certified journal entry for Conner’s prior conviction in
Cuyahoga C.P. No. CR-514492, having been indicted for drug trafficking in violation of
R.C. 2925.03, for the basis for Conner’s charge of having weapons while under disability.
Conner stipulated to the authenticity and admissibility of the exhibit. Because there was
evidence to support a finding that Conner used a firearm, as discussed above, and the
parties stipulated as to the disability element, we find that the conviction for this charge
was supported by the weight of the evidence.
{¶81} In light of the foregoing, we find that this is not one of the exceptional cases
in which the evidence weighs heavily against Conner’s convictions for the discharge of a
firearm on or near a prohibited premises or having weapons while under disability. After
reviewing the entire record, weighing all of the evidence and all reasonable inferences,
we cannot say that the jury clearly lost its way and created a manifest miscarriage of
justice.
{¶82} Conner’s fourth assignment of error is overruled.
Motions for Mistrial
{¶83} In his first assignment of error, Conner contends that the trial court erred by
denying his motions for mistrial. On four occasions, Conner moved for mistrial: (1)
When Officer Przybylski testified that an upset woman spontaneously exclaimed, “What
did you do now?”; (2) Upon the circumstances surrounding the admission of Marquis
Hollowell’s videotaped interview with the police; (3) Upon the playing of Conner’s
videotaped interview with crime scene detectives during which Conner mentions a prior
arrest; and (4) Upon the state’s use of “consciousness of guilt” in closing arguments.
{¶84} The decision whether to grant or deny a motion for mistrial lies within the
sound discretion of the trial court and will not be reversed absent a showing of an abuse
of discretion. Willis, 8th Dist. Cuyahoga No. 99735, 2014-Ohio-114, ¶ 36, citing State v.
Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). A mistrial should not be ordered
in a criminal case “merely because some error or irregularity has intervened, unless the
substantial rights of the accused or the prosecution are adversely affected.” State v.
Reynolds, 49 Ohio App.3d 27, 33, 550 N.E.2d 490 (2d Dist.1988). Rather, the granting
of a 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).
Officer Przybylski’s Testimony
{¶85} Conner first moved for a mistrial during Officer Przybylski’s testimony
where the officer testified about a female approaching his zone car after he had secured
Conner in the back seat. Initially, the trial court sustained defense counsel’s objection,
requiring the state to develop the officer’s testimony. Officer Przybylski stated that the
female, who claimed to be Conner’s sister, was upset upon seeing Conner being placed
under arrest:
Q: And did you have the opportunity to speak with her?
A: Yes.
Q: What was her mood or demeanor while you spoke with her?
A: She was upset that her brother was under arrest. Or who she
claimed to be her brother. I don’t know who she was.
Q: * * * What led you to believe she was upset?
A: The tone in her voice, her mannerisms.
Q: Was she excited?
A: Yeah.
{¶86} Following defense counsel’s second objection, which was overruled, Officer
Przybylski testified that when he told the woman that Conner was being arrested, she said
to Conner, “What did you do now?” Following the officer’s testimony, the defense
moved for a mistrial, which the trial court denied.
{¶87} Conner argues that the trial court erred by allowing the introduction of the
female’s comment to Conner because it was hearsay. The state, on the other hand,
claims that the “sister’s” statement falls into the “excited utterance” exception to hearsay
and was therefore admissible.
{¶88} Under Ohio Evid.R. 803(2), otherwise inadmissible hearsay is admissible if
it is a “statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.” Excited utterances are
considered trustworthy because they are made while the event is still fresh in the
declarant’s mind. State v. Fields, 8th Dist. Cuyahoga No. 88916, 2007-Ohio-5060, ¶ 51,
citing State v. Taylor, 66 Ohio St.3d 295, 300, 612 N.E.2d 316 (1993). The statement
must concern “some occurrence startling enough to produce a nervous excitement in the
declarant, which * * * the declarant had an opportunity to observe, and must be made
before there had been time for such nervous excitement to lose domination over his
reflective faculties.” State v. McCree, 8th Dist. Cuyahoga No. 87951, 2007-Ohio-268, ¶
60.
{¶89} We find that the above statement qualifies as an excited utterance and the
state laid the proper foundation for the same. The “sister’s” statement was made shortly
after the incident and immediately upon the officer’s placing Conner in his zone car, at
which time the officer informed her that Conner was being placed under arrest. Her
comment was made before there was sufficient time to reflect on the events. The trial
court, therefore, did not err in admitting the woman’s comment. The motion for mistrial
was properly denied.
Marquis Hollowell’s Videotaped Interview
{¶90} Conner argues that the admission of Marquis Hollowell’s videotaped
interview with Detective Diaz was error and the admission deprived Conner of his right to
a fair trial. We have previously determined that the trial court properly admitted
Hollowell’s videotaped interview for the impeachment of a court’s witness. We
therefore find no merit to Conner’s argument.
Conner’s Videotaped Interview
{¶91} Conner moved for a mistrial when the trial court admitted Conner’s
videotaped interview with the crime scene detectives. Defense counsel specifically
objected to the last portion of the videotape wherein Conner refers to the last time that he
was arrested.
{¶92} This court has held that where a witness made an isolated reference to a
defendant’s criminal history and there was no showing that the defendant suffered
material prejudice, a mistrial is not warranted. See McCree, 8th Dist. Cuyahoga No.
87951, 2007-Ohio-268. Where the reference to a defendant’s prior arrests is “fleeting”
and is followed by a curative instruction, “the trial court did not abuse its discretion in
failing to order a mistrial.” State v. Garner, 74 Ohio St.3d at 59, 656 N.E.2d 623.
{¶93} In this case, we do not find Conner’s brief and isolated statement unfairly
prejudicial so as to warrant a mistrial. Following defense counsel’s objection, the court
held a sidebar wherein the judge twice indicated that she did not understand what Conner
had said. The prosecutor advised the court that the videotaped interview was a redacted
version and that defense counsel had agreed to the redaction. Indicating that the
omission was likely an oversight on the part of defense counsel, there was no
prosecutorial misconduct, and the parties did agree to the redacted version, the court
declined to order a mistrial and, rather, offered to give the jury a curative instruction.
Not wishing to highlight the single comment, defense counsel declined the curative
instruction.
{¶94} Under these circumstances, and in light of the overwhelming evidence
presented in support of Conner’s convictions, we cannot find that the arguably inaudible
isolated comment referencing a prior arrest, without more, materially prejudiced Conner
or interfered with his right to a fair trial. We find, therefore, that the trial court did not
abuse its discretion in failing to order a mistrial following this remark. See Garner at 59.
Consciousness of Guilt
{¶95} Finally, Conner argues that the state’s reference to Conner’s “consciousness
of guilt” deprived him of a fair trial such that a mistrial should have been granted.
{¶96} Generally, Ohio courts allow prosecutors considerable latitude in closing
arguments, commenting freely on “what the evidence has shown and what reasonable
inferences may be drawn therefrom.” State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d
293 (1990), quoting State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). A
prosecutor’s comments should not be taken out of context; rather, courts must review the
statement within the context of the entire trial. State v. Williams, 8th Dist. Cuyahoga No.
90739, 2012-Ohio-1741, ¶ 12.
{¶97} The trial court’s control over the latitude afforded counsel during closing
argument is discretionary and will not be overturned on appeal absent an abuse of
discretion. State v. Grice, 8th Dist. Cuyahoga No. 97046, 2012-Ohio-1938, ¶ 32, citing
State v. Walters, 9th Dist. No. 2775-M, 1998 Ohio App. LEXIS 4615 (Sept. 30, 1998).
{¶98} Here, viewing the comment in the context of the entire closing argument and
the overwhelming evidence presented at trial, we cannot find that the prosecutor’s
reference to Conner’s “consciousness of guilt” materially prejudiced Conner such that he
was denied a fair trial. The prosecutor’s comment preceded a recitation of the evidence
presented at trial concerning Conner’s actions after he fired the gun. The prosecutor is
free to comment on what the evidence has shown and what reasonable inferences may be
drawn therefrom. Lott at 165. As such, we cannot find that the trial court erred in not
granting a mistrial following the prosecutor’s comments regarding Conner’s
consciousness of guilt.
{¶99} Conner argues, alternatively, that the admission of the four statements
referenced in this assignment of error amount to cumulative error and, therefore, Conner’s
convictions should be reversed. However, the doctrine of cumulative error is
inapplicable when the alleged errors are found to be harmless or nonexistent. Garner, 74
Ohio St.3d at 64, 656 N.E.2d 623; State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059,
796 N.E.2d 506, ¶ 48. Because we have found Conner’s arguments with regard to his
four motions for mistrial to be without merit, the cumulative error doctrine does not apply
in this case. See State v. Van Williams, 8th Dist. Cuyahoga No. 94965, 2013-Ohio-4471.
{¶100} Conner’s first assignment of error is overruled.
Closing Arguments
{¶101} In his fifth assignment of error, Conner argues that his convictions should
be overturned because he was denied the effective assistance of counsel. Conner
contends that his trial counsel’s failure to object to the prosecutor’s remark in closing
arguments during which he referred to Conner’s witnesses as “lying felons” was plain
error and counsel’s failure to object denied him the effective assistance of counsel.2
It is undisputed that Conner’s trial counsel failed to object to the prosecutor’s alleged
2
improper comments during the state’s closing argument. Ordinarily, when the defense attorney fails
to object to alleged prosecutorial misconduct, he waives all but plain error. Robinson, 8th Dist.
Cuyahoga No. 99290, 2013-Ohio-4375, at ¶ 78. Plain error exists only if the outcome of the trial
clearly would have been otherwise but for the error. State v. Harrison, 122 Ohio St.3d 512,
2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61. Notice of plain error is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State
v. Long, 53 Ohio St.2d 91, 95, 372 N.E.2d 804 (1978).
{¶102} In order to establish a claim of ineffective assistance of counsel, a
defendant must demonstrate: (1) his counsel was deficient in some aspect of his
representation, and (2) the deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶103} The first element requires a showing that counsel made errors “so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. It necessarily requires that when a defendant complains of the
ineffectiveness of counsel’s assistance, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 687-688.
{¶104} Regarding the second element, the defendant must demonstrate that there is
a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373,
citing Strickland at 694. Moreover, a defendant’s failure to satisfy one element of the
Strickland test negates the court’s need to consider the other. State v. Madrigal, 87 Ohio
St.3d 378, 389, 721 N.E.2d 52 (2000), citing Strickland at 697.
The plain error standard differs, however, from the ineffective assistance of counsel standard.
State v. Seeley, 7th Dist. Columbiana No. 2001 CO 27, 2002-Ohio-1545, ¶ 38; State v. Murphy, 91
Ohio St.3d 516, 559, 747 N.E.2d 765 (2001) (Cook, J., concurring). A defendant’s claim that his
counsel was ineffective for failing to object eliminates the requirement that an objection be made in
order to preserve an error for appeal. State v. Carpenter, 116 Ohio App.3d 615, 621, 688 N.E.2d
1090 (2d Dist.1996). Because Conner claims that his trial counsel was ineffective for failing to
objection, we will not apply the plain error standard.
{¶105} As we have previously said, courts allow prosecutors considerable latitude
in closing arguments. Lott, 51 Ohio St.3d at 165, 555 N.E.2d 293. Nevertheless, they
must “avoid insinuations and assertions calculated to mislead” and they may not express
their personal beliefs or opinions regarding the guilt of the accused or allude to matters
not supported by the evidence. Id. at 166. Prosecutors may, however, fairly comment
on the credibility of witnesses based on the witnesses’ testimony at trial. Williams, 8th
Dist. Cuyahoga No. 90739, 2012-Ohio-1741, at ¶ 12. In that regard, courts must review
the prosecutor’s statement within the context of the entire trial, rather than take the
comments out of context and give them their most damaging meaning. Id., citing State v.
Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996).
{¶106} In reviewing a claim of prosecutorial misconduct, we must determine
whether the comments and questions by the prosecution were improper and, if so,
whether they prejudiced appellant’s substantial rights. State v. Smith, 14 Ohio St.3d 13,
14-15, 470 N.E.2d 883 (1984). An appellate court should only reverse a conviction if the
effect of the misconduct “‘permeates the entire atmosphere of the trial.’” State v.
Gibson, 8th Dist. Cuyahoga No. 98725, 2013-Ohio-4372, ¶ 99, quoting State v.
Tumbleson, 105 Ohio App.3d 693, 699, 664 N.E.2d 1318 (12th Dist.1995). “The
touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’”
State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 92, quoting
Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
{¶107} In this case, during closing arguments, the prosecutor made two comments
that impugn the credibility of certain witnesses. Referring specifically to Deandre
Stephens, a friend of the defendant, the prosecutor stated, “God knows Deandre Stephens
is not the person I would choose to testify in my case * * *. If it was up to me and I can
choose my witnesses, I wouldn’t bring in lying felons * * *.” Thereafter, the prosecutor
referred to witnesses Brandon Crawford, Sharda Elmore, Jeremy Milner, and Stephens as
Conner’s “lying friends.”
{¶108} While we find the prosecutor’s statements to be somewhat troubling, and
seemingly evident of his opinion that Conner’s friends lied, we cannot say that these
isolated comments deprived Conner of a fair trial. We consider these remarks in the
context of the entire closing argument. In that regard, the prosecutor told the jury,
alongside the alleged improper comments, that he disagrees with the defense’s assessment
of the credibility of the witnesses. He then reminded the jury of its role in deciding
credibility and he specifically asked the jury to consider the evidence in deciding witness
credibility:
I’m not going to ask you to go back and find [Conner] guilty. I’m going to
ask you to go in the back and talk about the witnesses who testified and talk
about the evidence that was presented and reach a fair decision so that the
state has been treated fairly and that the defendant has been treated fairly
and that your verdict reflects the evidence and how it applies to these
charges.
Finally, the prosecutor asked the jury to think about what it heard in the courtroom along
with the context of the testimony and the conduct of the witnesses. When considered in
this context, we do not believe the prosecutor’s two comments would unduly influence
the jury.
{¶109} Additionally, the court specifically instructed the jury as follows: (1) the
jury was the sole judge of the facts and the credibility of the witnesses and the weight to
be given to the testimony of each witness; and (2) opening and closing statements do not
constitute evidence. We have no basis to conclude that the jury did not follow the
court’s instructions.
{¶110} Having found that the prosecutor’s remarks would not have changed the
outcome of the trial, we cannot say that Conner was prejudiced by his defense counsel’s
failure to object. Conner’s ineffective assistance of counsel claim therefore fails, and his
fifth assignment of error is overruled.
Sentence
{¶111} In his final assignment of error, Conner argues that the trial court erred by
imposing consecutive sentences and by failing to merge allied offenses of similar import.
Consecutive Sentences
{¶112} The trial court imposed a sentence of life, with parole eligibility after 30
years, on Count 1, three years on the firearm specification, and six and one-half years on a
probation violation on a different case, all of which the court ordered to be served
consecutively. Conner claims that the trial court failed to engage in a “proportionality
analysis” before imposing consecutive sentences and, therefore, the sentence is contrary
to law.
{¶113} We review consecutive sentences using the standard set forth in R.C.
2953.08. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992 N.E.2d
453, ¶ 8-10. That statute provides two grounds for an appellate court to overturn the
imposition of consecutive sentences: (1) the sentence is “otherwise contrary to law”; or
(2) the appellate court, upon its review, clearly and convincingly finds that the record
does not support the sentencing court’s findings under R.C. 2929.14(C)(4). Id. at ¶ 11;
R.C. 2953.08(G)(2).
{¶114} R.C. 2929.14(C)(4) requires a trial court to make three distinct findings
when imposing consecutive sentences. The trial court must first find the sentence is
“necessary to protect the public from future crime or to punish the offender.” Next, the
trial court must find that consecutive sentences are “not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public.”
Finally, the trial court must find the existence of one of the three statutory factors set forth
in R.C. 2929.14(C)(4)(a)-(c). The failure to make these findings is contrary to law. Id.
at ¶ 12.
{¶115} In this case, a review of the record demonstrates that the trial court made
the statutorily mandated findings as outlined above. Upon imposing consecutive
sentences, the court stated that “there is no more appropriate case for consecutive
sentences.” The court found that consecutive sentences are necessary to protect the
public and to punish the offender and it stated that “[i]t’s necessary that you spend just
shy of 40 years, at a minimum, * * * in prison.” The court then stated as follows:
I find, specifically, that you committed this crime while you were under a
community controlled sanction. I further find that the harm is so great, and
just to look at [the victim’s family], you know how great the harm is. There
is no greater harm.
And I find that a single term does not adequately reflect the seriousness of
your conduct. I also find that your criminal history shows that consecutive
terms are needed to protect the public.
Specifically in addressing the proportionality element, the trial court stated, “I also find
that it is not disproportionate, this sentence, to the harm that you have caused not just to
Mr. Woodard’s family, but to the community as a whole.”
{¶116} Moreover, the record demonstrates that the court considered the facts of
the case, heard statements from the attorneys and the victim’s family, addressed the
seriousness of Conner’s actions, and reviewed Conner’s extensive criminal history.
{¶117} To the extent that Conner is arguing that the trial court did not consider
proportionality and consistency as required by R.C. 2929.11(B) in imposing consecutive
sentences, we find no merit.
{¶118} R.C. 2929.11(A) provides that a felony sentence shall be reasonably
calculated to achieve two “overriding purposes” of felony sentencing: (1) “to protect the
public from future crime by the offender and others,” and (2) “to punish the offender
using the minimum sanctions that the court determines accomplish those purposes * * *.”
In order to achieve these purposes, the sentence imposed for a felony must be
“commensurate with and not demeaning to the seriousness of the offender’s conduct and
its impact upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.” R.C. 2929.11(B). A court that imposes a sentence for
a felony has the discretion to determine the most effective way to comply with the
purposes and principles of sentencing outlined in the statute. R.C. 2929.12(A). In
exercising that discretion, however, the trial court must consider the seriousness,
recidivism, and other mitigating factors set forth in R.C. 2929.12. Id.
{¶119} While we note that the trial court must consider the principles and purposes
of sentencing as well as the mitigating factors as outlined above, the court is not required
to use particular language or make specific findings of its consideration of those factors.
State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13, citing State v.
Carman, 8th Dist. Cuyahoga No. 99463, 2013-Ohio-4910, ¶ 14. In fact, R.C. 2929.11
and 2929.12 are not fact-finding statutes, and consideration of the appropriate factors can
be presumed unless the defendant affirmatively shows to the contrary. Id., citing State v.
Stevens, 1st Dist. Hamilton No. C-130278, 2013-Ohio-5218, ¶ 12. Nevertheless, as
previously noted, the record reflects that the court considered Conner’s extensive criminal
record and addressed the seriousness of Conner’s actions. We are therefore not
persuaded by Conner’s argument in this regard.
{¶120} In light of the foregoing findings and the record before us, we cannot
clearly and convincingly find that the trial court’s imposition of consecutive sentences is
contrary to law.
Allied Offenses of Similar Import
{¶121} At sentencing, the trial court merged Counts 1 and 2 (aggravated murder
and murder, respectively), as well as Counts 3 and 4 (two counts of felonious assault of
Damon Woodard). The court, however, declined to merge Count 8 (discharge of a
firearm) and Count 9 (having weapons while under disability), finding they are neither
allied to each other or to any other offense. Conner argues that all of the counts were
committed by the same conduct and with the same animus and should therefore be
merged.
{¶122} Our review of an allied offenses question is de novo. State v. Webb, 8th
Dist. Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶123} The merger statute, R.C. 2941.25, states:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶124} Ohio courts have long used a two-prong test to determine whether multiple
offenses should be considered allied offenses and merged. In State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Supreme Court of Ohio instructed that,
in applying the two-prong test, the particular defendant’s conduct must be considered. In
the most recent allied offenses case from the Supreme Court of Ohio, State v.
Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, the court reiterated
the two-prong test as follows:
* * * The first prong looks to the import of the offenses and requires a
comparison of their elements. If the elements “correspond to such a degree
that the commission of one offense will result in the commission of the
other,” the offenses share a similar import. Only then can the merger
analysis proceed to the second prong. The second prong looks to the
defendant’s conduct and requires a determination whether the offenses were
committed separately or with a separate animus. If the offenses were
committed by the same conduct and with a single animus, the offenses
merge.
(Citations omitted.) Id. at ¶ 13.
{¶125} According to Johnson, if it is found that the offenses can be committed by
the same conduct, the court must then determine whether the offenses were committed by
the same conduct, i.e. “a single act, committed with a single state of mind.” Johnson at ¶
49. Stated differently, multiple offenses are “allied” “if the defendant’s conduct is such
that a single act could lead to the commission of separately defined offenses, but those
separate offenses were committed with a state of mind to commit only one act.” State v.
Thompson, 8th Dist. Cuyahoga No. 99628, 2014-Ohio-202, ¶ 18.
{¶126} This court has previously considered whether the offense of having a
weapon while under disability should merge with the offenses of felonious assault and
discharge of a firearm near a prohibited premises. State v. Cowan, 8th Dist. Cuyahoga
No. 97877, 2012-Ohio-5723. In Cowan, we determined that the animus for possessing a
weapon while under disability is different from the animus for felonious assault and the
discharge of a firearm over a prohibited premises, finding that “the animus of having a
weapon under disability is making a conscious choice to possess a weapon.” Id. at ¶ 39.
Where the defendant “necessarily acquired a weapon sometime prior to committing the
other crimes[, t]he fact that he then used the weapons to commit the other crimes does not
absolve [the defendant] of the criminal liability that arises solely from his decision to
illegally possess the weapons.” Id. Therefore, because these offenses each involved a
separate animus and could not result in the commission of each other under these factual
circumstances, the offenses did not merge. Id. at ¶ 38.
{¶127} Likewise, in this case, Conner, who is under a disability as defined by
statute, made a conscious decision to possess a gun prior to the act of firing the weapon
on the evening of August 20 at the Sirrah House. Conner’s subsequent conduct in firing
the weapon constituted a separate and distinct act apart from his decision to possess the
weapon. The trial court, therefore, properly declined to merge Conner’s conviction of
having a weapon while under disability.
{¶128} Conner further argues that Count 8, the discharge of a firearm on or near
prohibited premises, should also merge. This court has previously held that, under the
first prong of the Johnson inquiry, it is possible to commit felonious assault by means of a
deadly weapon and discharge of a firearm on or near prohibited premises by the same
conduct. Robinson, 8th Dist. Cuyahoga No. 99290, 2013-Ohio-4375, at ¶ 113; State v.
Melton, 8th Dist. Cuyahoga No. 97675, 2013-Ohio-257, ¶ 54.
{¶129} We therefore turn our analysis to the second prong: whether those
separate offenses were committed with a state of mind to commit only one act.
Thompson, 8th Dist. Cuyahoga No. 99628, 2014-Ohio-202, at ¶ 18. We find that they
were not.
{¶130} The evidence shows that when Conner exited the Sirrah House, a large
crowd of approximately one hundred people had gathered in the parking lot and nearby
streets. At some point, Conner retrieved a gun. He was on the edge of the driveway
apron, near the street, when he fired two to three shots in the direction of Officer
Przybylski’s zone car, which was parked on the street. Conner then pivoted, changing
his direction, moving from facing the officer to moving to his right, and he fired another
three to four shots and began to run. The victim was discovered in the parking lot. The
evidence demonstrated that a total of six shots were fired by Conner, three of which
struck the victim. One of Conner’s spent shell casings was discovered on the south
sidewalk of the parking lot near the driveway on Judson Drive, while the other casings
were discovered in the parking lot.
{¶131} Under these facts, we conclude that the act of discharging a firearm on or
near a prohibited premises was committed with a separate animus, or state of mind, from
the felonious assault, aggravated murder, and murder. Conner’s conduct exceeds the
degree required to commit only the one offense such that a separate animus is
demonstrated as to the second offense. See State v. Whipple, 2012-Ohio-2938, 972
N.E.2d 1141 (1st Dist.) (finding defendant’s conduct in discharging a firearm into a
habitation and felonious assault involved a separate animus for each offense); see also
State v. West, 8th Dist. Cuyahoga No. 98274, 2013-Ohio-487 (finding separate animus as
to felonious assault, possession of a firearm in a liquor permit premises, and having a
weapon while under a disability where the defendant possessed a gun, shot the victim in a
bar, fled from the bar, and continued to fire shots from across the street). The trial court
did not therefore err in declining to merge Count 8.
{¶132} Conner’s sixth assignment of error is overruled.
{¶133} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR