State v. Sims

[Cite as State v. Sims, 2021-Ohio-1296.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109335
v. :
JERRY SIMS, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 15, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-623047-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Maxwell Martin and Brian Kraft, Assistant
Prosecuting Attorneys, for appellee.
Patituce & Associates, L.L.C., Kimberly Kendall Corral,
and Megan M. Patituce, for appellant.
MICHELLE J. SHEEHAN, P.J.:
Around midnight on October 21, 2017, East Cleveland police and
firefighters responded to a call for a van engulfed in flames. They arrived at the
scene to find the remains of a burned body inside the vehicle. Through its
investigation, the police identified defendant-appellant Jerry Sims, Jr. (“appellant”)
as the suspect in the killing of Jamarr Forkland (“victim”). At the jury trial,
appellant’s girlfriend, Erica Campbell, testified that appellant shot the victim and
later, with a friend’s help, set the victim’s vehicle on fire. Her testimony was
corroborated by the cellphone data and a surveillance video. Appellant maintained
his innocence; an inmate from the prison testified for the defense, taking
responsibility for the murder.
The jury found appellant guilty of aggravated murder and several
related offenses, and the trial court sentenced him to life in prison with parole
eligibility after 40 years. On appeal, appellant claims the guilty verdict should be
reversed because of prosecutorial misconduct, ineffective assistance of trial counsel,
improper admission of character evidence, the trial judge’s failure to recuse himself,
insufficient evidence, his conviction being against the manifest weight of the
evidence, and the cumulative effect of trial errors. After a careful review of the
record and applicable law, we affirm the trial court’s judgment.
Testimony by the State’s Witnesses
At trial, the state presented the testimony of 16 witnesses, including
appellant’s girlfriend, who was with appellant in the evening of the murder, several
individuals present at the used car lot prior to the murder incident, the police
officers investigating the case, a forensic scientist, the deputy medical examiner, a
firearms examiner, and a cell phone tower data analyst. They testified to the events
in the evening of the murder and the police investigation leading to appellant’s arrest
for the murder.
a. Michael Smith, Booker Edwards, and Shawndell Lilly
Michael Smith, Booker Edwards, and Shawndell Lilly, who were
acquaintances of the victim, testified to the events the evening of October 21, 2017,
preceding the murder of the victim. They were among a group of men congregating
and drinking at the used car lot before appellant showed up at the car lot and started
a fight with the victim.
Michael Smith, a close friend of the victim, testified that the victim
operated the used car lot. A group of friends gathered there that evening to celebrate
Shawndell Lilly’s birthday. Later in the evening, appellant pulled into the car lot in
a car driven by a woman. After getting out of the vehicle, appellant walked toward
where Smith and the victim were standing. Without any greeting words, he said to
the victim in an aggressive tone, “you know I owe you, right?” The victim did not
respond. Appellant repeated it a second time, then grabbed a bottle of wine and
broke the bottle over the victim’s head. Smith caught a glimpse of a black gun on
appellant’s hip. Appellant and the victim began to wrestle with each other. Smith
quickly left. The next day, he found out the victim had been killed. He went to the
police and provided them with information about what he saw at the car lot.
Booker Edwards, who was the victim’s partner in operating the used
car lot, was at the car lot for a while but left early in the evening before appellant
arrived. When he returned to the car lot the next morning, unaware of the victim’s
death, he saw glass on the ground.
It was Shawndell Lilly’s birthday the group of men gathered to
celebrate. Lilly testified appellant and his girlfriend Erica Campbell came to the
gathering in a vehicle. Soon after, he heard a bottle break and appellant and the
victim were fighting. Lilly and others tried to break up the fight, asking appellant
why he was angry at the victim. Appellant said that he would tell them later.
Lilly’s testimony alluded to a possible motivation for the murder. He
testified that he knew appellant as a family friend because Lilly’s cousin Jwan Boyd
— whom appellant treated as an uncle, as others testified — has children with
appellant’s aunt; Boyd was present at the lot that night but did not testify. When
asked about the relationship between appellant and Boyd, Lilly testified that the two
were falling out “because Jamarr [the victim] didn’t want him [referring to Sims] at
the shop no more.” Lilly thought that was why appellant “got so mad” because the
victim “didn’t want him up there no more.” Regarding appellant and the victim’s
relationship, he stated that “[t]hey [were] cool some days, but, like I said, towards
the last week or two, they had been getting into it.”
During the scuffle, Lilly saw appellant pull his gun out, but Boyd told
him to put down the gun. Lilly left when appellant and the victim were still fighting.
When Lilly left, the only people remaining at the car lot were Boyd, the victim,
appellant, and appellant’s girlfriend Erica Campbell.
Under cross-examination, Lilly stated that appellant was not acting
“fishy” when he saw him the next day. Lilly also acknowledged that he had told the
detectives that many of the victim’s customers were upset with the victim because
he sold them cars that were “lemons.”
b. Erica Campbell
Erica Campbell, a social worker, started dating appellant in May
2017. At the time both were involved in another relationship, so they would spend
time at the car lot to avoid being seen together by others. They were at the lot almost
daily. On the day of the incident, she met appellant after work at the house of
Brandon Montgomery, a friend of appellant. After several hours at the house
drinking and socializing, she and appellant got into an argument and they left. She
was taking appellant home in her vehicle when appellant received a phone call from
“Unc” — referring to Boyd — and “Unc” told appellant he needed him to come to the
lot. Appellant asked her to drive him there.
After they arrived, appellant exited the vehicle. He first urinated on
the building on the lot and then walked over to the crowd of people congregating at
the lot. She was about to leave when she heard some commotion and saw in her
rearview mirror appellant and the victim fighting. Appellant placed the victim in a
headlock and was punching him. Boyd tried to break up the fight. She exited her
vehicle and yelled at appellant to stop. She then drove her vehicle toward where the
fighting was taking place. The fight was eventually broken up, and others started to
leave the car lot.
Eventually, the only people remaining were appellant, Campbell, the
victim, and Boyd. Boyd came to Campbell’s car and asked if she and appellant had
been drinking. Appellant saw the two talking and yelled at Boyd “don’t talk to that
bitch.” Campbell wanted to leave, but Boyd asked her not to leave without appellant.
Campbell drove her vehicle off the car lot and waited in a street in front of the lot.
After she left the lot, Boyd left too. The victim was also leaving in his vehicle, a blue
van. However, appellant, still inside the lot, closed the gate. Campbell thought they
were going to start fighting again. She saw appellant walking toward the van and
soon heard gunshots. Based on what she saw, she concluded “Jerry shot Jamarr.”
Appellant then ran toward her vehicle and got in. He was holding a gun in his hand,
which she had seen him carrying in the past.
Appellant appeared shocked, saying “me and Unc [are] going to fall
out about this.” He was shaking his head and screaming “f***, f***, f***,” as if he
could not believe what he had done. She started to drive away from the car lot, but
appellant had her return to it. Appellant got out of her vehicle to switch off the lights
of the victim’s van and closed the gate of the lot. Once he returned to her vehicle, he
called Brandon Montgomery, saying to him repeatedly “I need you.” Appellant then
directed Campbell to drive to Montgomery’s residence, located in the west side of
Cleveland. When they arrived, Montgomery was standing in his driveway waiting
for them. Appellant exited Campbell’s vehicle to talk to him, and then both of them
entered her vehicle. They told her to pull into a gas station nearby. Once there,
appellant told her to go inside the store to purchase a gas can and two pairs of gloves,
and to fill the gas can with gasoline.
Campbell then drove them back to the car lot. She was told to park
her vehicle next to “Rally’s” across from the car lot. Appellant exited the vehicle and
told Montgomery to stay with her. Appellant went inside the lot while Montgomery
switched to the driver’s seat in Campbell’s vehicle. Montgomery then received a
phone call from appellant. After the call, Montgomery drove the vehicle inside the
lot and then handed the gas can to appellant. They both walked toward the victim’s
van. Minutes later, Montgomery returned to Campbell’s vehicle and appellant was
driving the victim’s van. Montgomery directed Campbell to follow the van.
They drove through some side streets before arriving at Wadena
Street. Both appellant and Montgomery exited their vehicles. While she sat at her
vehicle, she saw appellant pouring gas on the van. She then heard a loud boom and
saw the van on fire. Both appellant and Montgomery ran toward her vehicle and got
inside. They instructed her to return to the car lot. Appellant and Montgomery
entered the car lot and later emerged carrying some plastic bags. Campbell testified
that she did not attempt to contact anyone for help during the entire evening because
she did not want to do anything to cause appellant to harm her.
Campbell then drove her vehicle to Montgomery’s residence to drop
him off. Appellant insisted that she stay with him that night, so Campbell stopped
at her own house to pick up some items she needed. They then drove to appellant’s
mother’s house and stayed there for the night. She said to him, “I never thought
you’d put me in a situation like this,” to which appellant responded “if I go down, we
all going down.”
The next morning, Campbell left appellant when she woke up. Later
in the day, she checked Instagram and saw people posting about the victim’s death.
Initially, she did not want to go to the police because she was afraid to put her family
in danger.
When she learned the police were looking for her for information
relating to the incident, appellant, his sister, and Montgomery tried to coach her on
what to tell the police. They told her to tell the police that appellant and the victim
got into a fight, but she and appellant left and stayed at appellant’s mother’s house
for the night. In the presence of these individuals, Campbell called the police
department to arrange for an interview. In that interview, she told the police that
appellant and the victim got into a fight, but she and appellant left to go to a liquor
store, and then went to appellant’s mother’s house and stayed there for the night.
During the interview, however, she had an inkling that the police knew more about
the murder than she had expected. After the interview, she was arrested and put in
jail.
While in jail, Campbell met with an attorney provided by her parents,
as well as her parents. The attorney told her she was being charged with obstruction
of justice. She then did a second interview with the police and provided a statement
implicating appellant in the victim’s death. Subsequently, after learning appellant
was incarcerated, she did a third, final interview with the police, where she told the
detectives about Montgomery’s involvement. The prosecutor’s office later helped
her move her family to a different location.
c. The Investigating Officers
Officer Travis Kesecker of East Cleveland police department was one
of the officers responding to the call of a car engulfed in flames on Wadena Street.
After the fire was extinguished, he inspected the area around the burnt vehicle. He
noticed the vehicle to be missing the gas cap and found the gas cap on the ground
on the vehicle’s rear passenger side.
Daniel Mabel, a forensic scientist at the Cuyahoga County Medical
Examiner’s Office, was unable to perform firearm or gunshot analysis on the body
due to the body’s condition. He did discover a charred 9 mm Luger cartridge casing
in the engine compartment of the vehicle.
Dr. Erica Armstrong, a deputy medical examiner of the Cuyahoga
County Medical Examiner’s Office, performed the autopsy. The autopsy showed ten
gunshots wounds throughout the body and eight bullets were collected. There was
alcohol, PCP, and marijuana in the victim’s system. A surgical plate with
identification numbers in the body enabled her to discover the identity of the
charred body.
James Kooser, a firearms and tool marks examiner from the
Cuyahoga County Regional Forensic Science Laboratory, was able to identify six of
the eight autopsy bullets as having been fired from the same 9 mm caliber pistol.
The other two bullets were too damaged to be analyzed. The weapon that had fired
the bullets was never found.
Kooser compared the spent cartridge casing found in the engine
compartment of the burnt vehicle to nine spent cartridge casings the police had
recovered from a different crime scene in Cleveland, and he was able to determine
that they were all fired from the same 9 mm caliber pistol.
Sergeant Reginald Holcomb of East Cleveland police department was
one of the police officers who apprehended appellant and Montgomery at
appellant’s sister’s apartment. During the patdown of appellant, some gun
magazines were found in his pockets.
Detective Kenneth Lundy was also involved in the investigation of the
homicide. He interviewed Jwan Boyd, Shawndell Lilly, Michael Smith, and
Campbell. He also interviewed appellant, together with Sergeant Holcomb and
Detective Harvey. Appellant stated a fight broke out between him and the victim at
the car lot, and he struck the victim with a wine bottle. He left in Campbell’s vehicle,
however, and they went to a liquor store before going to his mother’s house to stay
the night there. Later in the interview, appellant admitted he returned to the car lot
because he lost his keys. He denied being involved in the victim’s death.
Jacob Kunkle, a special agent with the Federal Bureau of
Investigation and a cell phone records analyst, mapped three cell phone numbers
involved in this case — two phone numbers associated with appellant and one with
Montgomery. Based on his analysis of the cell phone records, he testified regarding
the location data of these phones. The data showing the phones’ locations and
movements were consistent with Campbell’s account of how the events unfolded on
the night of the murder.
The police were able to obtain a surveillance video on Wadena Street
near where the victim’s burned van was discovered. When Special Agent Robert
Surgenor of the Ohio Bureau of Criminal Investigation examined the footage, he
found the time displayed in the video was off — it was 10 hours and 40 minutes
ahead of the actual time. When the time was properly adjusted, the video showed
certain events beginning at 11:41 p.m. culminating in an explosion of a vehicle. The
video footage showed a vehicle, which had its headlights off, pull up, followed by
another vehicle, which had the headlights on. There was then a movement of what
appears to be a person towards the front vehicle — the vehicle without the
headlights. Soon thereafter, that vehicle exploded, and 43 seconds after the
explosion, the other vehicle left the scene. The video was played for the jury.
Several months before the trial in this case, Detective Lundy heard
an individual by the name of Antonio Roberson, an inmate in the county jail,
allegedly confessed to the victim’s murder. Detective Lundy went to interview
Roberson, but he refused to talk. Detective Lundy later learned that Roberson and
appellant had been housed on the same pod in the county jail.
Detective Joseph Marche testified that Roberson had made a similar
claim about another murder involving a suspect by the name of Brico Allen.
However, Marche’s investigation showed that Roberson was in the county jail at the
time of that homicide. Furthermore, Roberson shared a pod with Allen at the time
he confessed to the murder involving Allen. During the cross-examination of
Detective Marche, the defense counsel alluded to Campbell’s testimony that showed
that she told the truth after being placed in the jail overnight, and asked Detective
Marche if the jail was a “truth-telling jail.” Marche agreed.
Witness for the Defense
Roberson testified for the defense. He was serving a four-year prison
term for aggravated robbery at the time of the trial. He testified that he did not know
appellant before they were inmates on the same pod in the county jail. Before he
met appellant on the pod, he heard of other inmates talking about the murder case.
He first confessed to the murder to one of the inmates before he told appellant about
his involvement in it. Appellant suggested that he contact appellant’s attorney. On
May 23, 2019, Roberson wrote to appellant’s counsel and confessed to the murder
in a letter.
Roberson testified that he met the victim once or twice before the day
of the murder. He did not remember the date of the murder, except that it was
sometime in November 2017. On that day he ran into the victim at the Rally’s near
the Windermere Rapid Station in East Cleveland around 11 p.m. The victim asked
him about getting PCP and marijuana. They drove in the victim’s vehicle to a
building known as the Butternut. After Roberson got the drugs, they drove around
while using drugs. They ended up on a side street, the name of which he could not
recall. While high and delusional from the drugs, he got out of the vehicle and shot
the victim, who was still in the driver’s seat, multiple times with a 9 mm gun he had
with him. He did not remember how many times he shot him, or other details about
the shooting, because he was high from the drugs.
Roberson then poured gasoline over the victim’s body, using the gas
from a gas can in the victim’s van. After setting the vehicle on fire, he ran from the
scene, carrying the gas can with him, for fear that his fingerprints would be detected.
He refused to disclose where he disposed of the gas can or the gun used to kill the
victim.
When asked about his confession to the murder involving Brico
Allen, he denied killing the victim in that case and only admitted selling the murder
weapon to Allen. When asked about his incarceration at the time of that murder,
Roberson testified that he was at a CBCF facility and he escaped the facility.
Conviction and Appeal
Appellant was indicted for 11 counts, including aggravated murder,
aggravated arson, felonious assault, and several weapons offenses. After the trial,
the jury found him guilty of all counts except for one of the two felonious assault
counts. On appeal, appellant assigns the following eight errors for our review:
I. The state engaged in prosecutorial misconduct throughout the
course of the trial that deprived defendant of his right to a fair trial.
II. The individual and cumulative effect of defense counsel’s errors
rendered counsel’s performance deficient to the point of being
ineffective, denying appellant his constitutional right to effective
assistance of counsel.
III. The trial court erred in permitting the introduction of improper
character evidence in violation of Evidence Rule 404(A)(1), denying
appellant his constitutional right to a fair trial.
IV. The trial court erred in admitting surveillance video, withheld
from defense until the start of trial in violation of Criminal Rule 16.
V. The trial court erred [in] failing to recuse himself or in the
alternative secure a valid and knowing agreement[,] violating
appellant’s right to a fair trial.
VI. Appellant’s conviction was against the manifest weight of the
evidence.
VII. The state failed to present sufficient evidence to prove each and
every element of the offense beyond a reasonable doubt.
VIII. The cumulative effect of the multitude of errors in this case
deprived defendant of his constitutionally guaranteed right to a fair
trial.
We address these assigned errors out of order and review first the
sufficiency-of-evidence and manifest-weight claims first.
Sufficiency and Manifest Weight of the Evidence
Under the seventh and sixth assignment assignments of error,
appellant claims the state fails to present sufficient evidence for his guilt, and his
conviction is against the manifest weight of the evidence. We address these two
claims jointly.
When reviewing a challenge to the sufficiency of the evidence, we
review the evidence admitted at trial and determine 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 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).
While the test for sufficiency requires a determination of whether the
state has met its burden of production at trial, a manifest weight challenge questions
whether the state has met its burden of persuasion. Id. Unlike a claim that the
evidence is insufficient to support a conviction, which raises a question of law,
manifest-weight challenges raise factual issues. When a defendant argues his or her
conviction is against the manifest weight of the evidence, 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 at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
Here, although the murder weapon was not recovered and there was
no physical evidence linking appellant to the victim’s murder, the state’s key witness
Erica Campbell, who was with appellant during the evening of the murder, testified
at great length as to the events that transpired leading to appellant’s shooting of the
victim and then burning his body and vehicle. Although appellant raises separate
assignments of error, they both contest Campbell’s credibility. As such, we review
his claims under a manifest-weight standard of review.
Appellant claims, without specificity, that Campbell’s testimony was
contradicted by other witnesses. The claim is not borne out by our review of the
transcript. Campbell testified that she met appellant at Montgomery’s house that
evening. After receiving a phone call from Boyd, he asked her to take him to the
victim’s car lot, where several people, including the victim, had congregated. After
she dropped appellant off, she was about to leave when she heard some commotion
and saw in her rearview mirror appellant placing the victim in a headlock and
punching him.
Campbell testified that, because of the fighting, others started to
leave the car lot. Eventually only appellant and the victim remained at the lot. When
the victim was about to leave, appellant closed the gate to the lot. Campbell saw
appellant walking toward the victim and then heard gunshots. Appellant ran to her
vehicle and got in. She saw him holding a gun, which she had seen him carrying
before. Appellant appeared shocked, saying “me and Unc [referring to Boyd] going
to fall out about this.” Appellant returned to the car lot, turned off the lights of the
victim’s van, and then called Montgomery for help. After picking up Montgomery
from his house, they stopped at a gas station and appellant had Campbell purchase
two pairs of gloves and a gas can and then fill the can with gasoline. They returned
to the car lot, and appellant drove the victim’s van eventually to Wadena Street,
while Campbell and Montgomery followed behind in her vehicle. Once there,
appellant got out of the victim’s vehicle and poured gas over the vehicle. Campbell
then heard a loud boom.
Our review indicates that Campbell provided a lengthy, coherent,
and consistent account of the events on the night of the murder. Her testimony is
consistent with other witnesses who testified that a fight broke out between
appellant and the victim after appellant arrived at the car lot. Notably, the
particulars of her account are corroborated by the testimony of the cellphone
records analyst, who testified in great detail regarding his analysis of appellant’s and
Montgomery’s cell phone records. The cell phone location analysis based on phone
calls and text messages between appellant and Montgomery revealed appellant’s
and Montgomery’s locations and movement throughout the evening, and they
matched Campbell’s account of how the events unfolded.
In addition, Campbell’s description of how the victim’s vehicle was
burned is corroborated by the surveillance video from Wadena Street. The video
footage shows a car without its headlights pulled up and it was followed by another
car. There was a movement of what appears to be a person toward the first car. Soon
afterward, that car exploded, and moments later, the other car left the scene.
Without any specifics, appellant claims Campbell is untruthful.
While we review witness credibility as part of a manifest-weight analysis, we are
mindful that determinations regarding the credibility of witnesses and the weight of
the testimony are primarily for the trier of fact to assess. State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967). Here, our own review of the trial transcript does
not reveal any inconsistency in Campbell’s testimony, which is amply corroborated
by other evidence presented by the state. After weighing the evidence and all
reasonable inferences and considering the credibility of witnesses, we cannot say
that the jury, in finding appellant guilty, clearly lost its way in resolving conflicts in
the evidence and created such a manifest miscarriage of justice. The sixth and
seventh assignments of error are without merit.
Prosecutorial Misconduct
Under the first assignment of error, appellant alleges several
instances of prosecutorial misconduct and argues the cumulative effect of
prosecutorial misconduct deprived him of a fair trial. The alleged prosecutorial
misconduct relates to (1) the prosecutor’s allusion to another shooting incident
involving appellant in the opening statement and the introduction of ballistic
evidence showing the shell casing found in the instant shooting matched those
found in the other incident, and (2) the prosecutor’s elicitation of alleged improper
victim-impact testimony. We address these two claims in turn.
a. Prosecutor’s Allusion to Another Criminal Incident
The record reflects that appellant was charged in an unrelated
criminal case for a shooting that occurred on August 28, 2017. The state’s evidence
shows that the 9 mm shell casing found in the victim’s burned vehicle matched the
shell casings found at the scene in the August 28, 2017 shooting. Before the trial in
this case, the state filed a motion for a joint trial, arguing that a joinder of trial was
proper because (1) the defendant engaged in similar conduct in both cases in
shooting the victim with a firearm, and (2) there was a match between the shell
casings found at the crime scenes in these two cases.
Appellant opposed the joinder, arguing that a joinder was not
warranted pursuant to Crim.R. 8(A) because the two incidents did not constitute
“parts of a common scheme or plan,” were not “part of a course of criminal conduct,”
and were not based on “the same act or transaction.” Appellant also argued a joinder
would be highly prejudicial.
The trial court denied the state’s motion to consolidate the two cases
for trial. At a hearing before the trial, the defense requested the exclusion of any
reference to the other case in the state’s opening argument. In response,
the trial court instructed that the state’s statements at the opening argument should
be “consistent with the court’s ruling” denying the joinder, but it seemingly
allowed the state to present the ballistic evidence regarding the other case.1 The
court, however, indicated it would provide a limiting instruction regarding the
evidence if requested.
Appellant claims on appeal that the prosecutor engaged in
misconduct by informing the jury in the state’s opening statement that appellant
was linked to another shooting, in violation of the court’s ruling denying the state’s
motion for a joinder. Appellant refers us to the following remark by the prosecutor
in the state’s opening statement:
I mentioned earlier that there was a nine-millimeter casing recovered
in the engine block of the vehicle. That will be an important piece of
information for you.
The reason it will be important is you will hear that casing was
submitted through a system called NIBIN, which kind of matches up
that casing with any other known casing that has been recovered. And
after, there’s a match; and that case matches to another incident, and
it’s associated with another incident with Jerry Sims.
Appellant claims the prosecutor engaged in further misconduct when
the prosecution, despite the court’s denial of a joinder, introduced the testimony of
Kooser, a firearms examiner, who testified that he was able to determine that the
spent casing found in the engine compartment of the burned vehicle matched nine
spent casings recovered from a different crime scene in Cleveland; they had been
1 The record reflects that, in response to the request from the defense to exclude the
ballistic evidence from the other case, the prosecutor stated the state would “sanitize” as
much as possible any mentioning of the other case at the opening argument but it
intended to introduce the ballistic evidence from the other case. The trial court, despite
its ruling denying the joinder, stated: “Yeah. I think that is as consistent with my ruling
as possible. The Court is not in a position to prohibit the state from putting on their case.”
fired from the same 9 mm caliber pistol. Appellant claims the ballistic evidence
regarding the other case constituted improper other-acts evidence pursuant to
Evid.R. 404(B), which provides that “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show that he acted in
conformity therewith.”
We note that on appeal appellant does not claim that the trial court
erroneously admitted allegedly improper other-acts evidence. Rather, appellant
frames his claim in terms of prosecutorial misconduct. Therefore, we apply the
standard of review for prosecutorial misconduct to his claim.
The standard of review for prosecutorial misconduct is whether the
actions by the prosecution were improper and, if so, whether they prejudiced a
defendant’s substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d
749 (2001). “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).
The state introduced testimony regarding ballistic comparison
evidence to show that whoever was involved in the instant case was also involved in
another shooting incident — the testimony itself did not directly link appellant to
the shell casings found in either shootings but only showed the shell casings were
fired from the same firearm. At the opening statement, however, the prosecutor
stated to the jury that the other incident was associated with appellant — despite
that appellant had not been convicted in that case.
While the ballistic comparison evidence may arguably be improper
other-acts evidence given the prosecutor’s remark at the opening statement, the
question is whether the prosecutor’s conduct prejudiced appellant’s substantial
rights. When assessing whether the prosecutor’s comment results in prejudice
affecting a defendant’s substantial rights, we consider factors such as (1) the nature
of the remark, (2) whether an objection was made by counsel, (3) whether the court
gave curative instructions, and (4) the general strength of the evidence against the
defendant. State v. Harris, 2017-Ohio-2751, 90 N.E.3d 342 (8th Dist.1995).
Here, although the trial court advised the defense that it would
provide a curative instruction to the jury if requested by the defense, the defense did
not object or ask for such instruction when the prosecutor alluded to the other case
at the opening statement. More importantly, were the ballistic evidence the only
evidence implicating appellant in the victim’s murder, the prosecutor’s remark that
appellant was associated with the other shooting may have been highly prejudicial.
As we have discussed above, however, the state presented overwhelming, well-
corroborated testimonial evidence to prove appellant’s guilt at trial. Considering the
prosecutor’s conduct in the context of the entire trial and balancing the nature of the
prosecutor’s remark, the lack of objection or request for a curative instruction, and
the strength of the evidence against appellant, we do not find the prosecutor’s
conduct prejudicially affected appellant’s substantial rights or denied him a fair trial.
b. Victim-Impact Testimony
Appellant also claims the prosecutor engaged in misconduct in
eliciting improper victim-impact testimony. “Victim-impact evidence that relates
only ‘to the personal characteristics of the victim and the emotional impact of the
crimes on the victim’s family’” is generally inadmissible. State v. Clinton, 153 Ohio
St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 126, quoting Payne v. Tennessee, 501
U.S. 808, 817, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
The pertinent portion of the transcript reflects that the prosecutor
asked Michael Smith, a friend of the victim and one of the men who gathered in the
car lot on the night of the murder, about his relationship with the victim. Smith
testified the victim was like a little brother to him and he had watched him growing
up. The prosecutor also asked about the victim’s family situation and Smith stated
“I know his mom. He had a close family, a church family. Jamarr had just joined
the church also.” Smith in addition testified that the victim had a son, and that
Smith attended the victim’s memorial. The defense counsel did not object to the line
of questioning.
Appellant argues on appeal that Smith’s testimony about the victim’s
family situation and his recently joining the church is improper victim-impact
testimony and the prosecutor engaged in misconduct in eliciting the testimony. We
disagree. Smith’s testimony does not appear to relate to the victim’s personal
characteristics or the emotional impact his murder had on his family. Clinton at
¶ 126. The prosecution did not engage in misconduct eliciting improper victim-
impact statement.
Appellant argues the cumulative effect of prosecutorial misconduct
deprived him of a fair trial. Given the foregoing discussion, we cannot conclude the
effect of the claimed misconduct by the prosecutor, cumulative or otherwise,
deprived appellant his constitutional right to a fair trial. The first assignment of
error is without merit.
Ineffective Assistance of Counsel
Under the second assignment of error, appellant argues the
individual and cumulative effect of his trial counsel’s errors rendered counsel’s
performance deficient and denied him his constitutional right to effective assistance
of counsel.
In order to establish a claim of ineffective assistance of counsel,
appellant must prove (1) his counsel was deficient in some aspect of his
representation, and (2) there is a reasonable probability that, were it not for
counsel’s errors, the result of the trial would have been different. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel’s
performance will not be deemed ineffective unless and until the performance is
proven to have fallen below an objective standard of reasonable representation and,
in addition, prejudice arises from counsel’s performance. State v. Iacona, 93 Ohio
St.3d 83, 105, 2001-Ohio-1292, 752 N.E.2d 937.
a. Alleged Failure to Object to Ballistic Evidence
Appellant argues his trial counsel was ineffective in failing to object
to the state’s admission of the ballistic comparison evidence at trial. He raises the
claim even though his trial counsel had filed a brief opposing the joinder on the
ground of impermissible Evid.R. 404(B) evidence and obtained a favorable ruling
from the trial court.
The record reflects that, after the trial court’s ruling denying the
state’s motion for a joinder, the ballistic evidence was discussed at a side bar in
advance of the opening argument and presentation of the state’s evidence. The
defense counsel continued to object to the ballistic evidence, and the trial court
cautioned the state that its opening statement should be consistent with its ruling
denying joinder. State v. Sands, 11th Dist. Lake No. 2007-L-003, 2008-Ohio-6981,
¶ 126 (appellant’s claim that his counsel failed to make contemporaneous objections
lacked merit because the testimony objected to was discussed at a side bar ahead of
the presentation of testimony; rulings and limitations were made on the record
thereby counsel properly preserved the issue for appeal). Appellant’s trial counsel
did not provide ineffective assistance of counsel in this regard.
b. Alleged Failure to Object to Other-Weapons Evidence
Appellant also argues that his trial counsel should have objected to
testimony of several witnesses who mentioned that they have seen appellant
carrying weapons in light of the fact that all of the weapons the police found on
appellant’s person when he was arrested had been ruled out as the murder weapon.
Michael Smith testified that when appellant hit the victim with a wine
bottle, he saw appellant with a black gun on his hip. Detective Lundy testified there
were several guns found with appellant at the time he was arrested. During his
testimony, the seized guns were introduced as evidence. Erica Campbell testified
that she had seen appellant carrying guns. She also testified that the detectives had
shown her a gun retrieved from appellant when he was arrested and she recognized
the gun to be appellant’s gun, which he purchased ten days after the murder and she
was with him when he purchased the gun. The defense counsel did not object on
these occasions.
Appellant cites State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011,
92 N.E.3d 821, in support of his claim. In Thomas, the trial court admitted evidence
that the defendant possessed a collection of five knives, none of which were related
to the knife that was used to stab the victim. The actual knives were introduced as
evidence, along with photographs of the knives. The prosecutor described the
defendant as an owner of “full Rambo combat knives.” Id. at ¶ 35. In addition,
during closing arguments, the state referred to the collection of knives and held one
up to the jury as the prosecutor alluded that the knife was similar to the murder
weapon. The plurality opinion in Thomas held that that other-weapons evidence,
i.e., irrelevant evidence of weapons unrelated to the charges, is inadmissible as it
falls within the scope of Evid.R. 404(B), which precludes evidence of other acts “to
prove the character of a person in order to show action in conformity therewith.” Id.
at ¶ 35-36. The plurality opinion reversed the defendant’s conviction of aggravated
murder under a plain error analysis, concluding that the unrelated weapons
evidence was highly prejudicial and there was a reasonable probability that the
inadmissible evidence affected the outcome of the trial.
Pursuant to Thomas, the testimony of Campbell and Lundy as well
as the introduction of the firearms recovered by the police when appellant was
arrested was arguably other-weapons evidence. However, as Thomas noted, that
“[e]rror in admitting other weapons evidence falls generally into one of two
categories: harmless error or prejudicial error requiring reversal.” Id. at ¶ 38.
“Cases in which courts have deemed error in the admission of other weapons
evidence to be harmless generally involved overwhelming independent evidence of
guilt.” Id. at ¶ 39. In other words, whether the alleged error was prejudicial depends
on the strength and amount of independent evidence against the defendant. The
plurality opinion in Thomas found the error to be prejudicial because it found the
case against the defendant not to be a case of overwhelming independent evidence
of guilt. Id. at ¶ 41.2
Here, appellant does not claim the trial court erred in admitting the
other-weapons evidence but, rather, his trial counsel provided ineffective assistance
in failing to object to the evidence. We note that while Thomas reviewed the other-
weapons evidence under a plain error analysis, i.e., the accused must demonstrate a
2 The three dissenting justices found that the alleged error in admitting the other-weapons
evidence not prejudicial because they found substantial and compelling evidence
presented at trial supported the defendant’s guilt.
reasonable probability that the error resulted in prejudice, this is the same
deferential standard for reviewing ineffective assistance of counsel claims, as the
court observed in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 22.
Thus, even if assuming that the other-weapons evidence presented
through the testimony of Campbell and Lundy and the admission of firearms seized
at the time of appellant’s arrest were inadmissible pursuant to Thomas, appellant
must demonstrate that there is a reasonable probability that the result of the trial
would have been different if counsel were to object to the other-weapons evidence.
Given the substantial independent evidence supporting appellant’s guilt produced
by the state, we are unable to reach that conclusion regarding Campbell’s and
Lundy’s testimony and the evidence regarding the seized firearms. See also State v.
Gordon, 2018-Ohio-2292, 114 N.E.3d 345, ¶ 79-80 (8th Dist.) (where there was
substantial evidence independent of the defendant’s guilt, the other-weapons
testimony was harmless).
Smith’s testimony, however, is of a different nature. Among the cases
cited by the plurality opinion in Thomas to support its holding was State v. Crosby,
186 Ohio App.3d 453, 2010-Ohio-1584, 928 N.E.2d 795, ¶ 16 (8th Dist.). Although
Crosby held that other weapons evidence unrelated to the weapon involved in the
offense was not admissible, Crosby noted that the court has allowed testimony that
the defendant was seen with a gun if the defendant’s possession of the gun had a
“temporal and spacial proximity” to the crime in question even though the gun seen
was not necessarily the gun involved in the offense. Id. at 458, citing State v. Davis,
8th Dist. Cuyahoga No. 35421, 1977 Ohio App. LEXIS 7152 (Jan. 6, 1977). See also
State v. Hamilton, 8th Dist. Cuyahoga No. 97145, 2012-Ohio-1542, ¶ 31.
Smith testified that he saw appellant with a gun on his hip when he
hit the victim with a wine bottle at the car lot, an event that occurred shortly before
the victim was shot, according to Campbell’s account of the events. Because the
testimony shows appellant possessing a gun in close proximity to the murder, both
in time and place, this testimony would not be inadmissible other-weapons
evidence, pursuant to Crosby, Hamilton, and Davis.
The second assignment of error is without merit.
Character Evidence
Under the third assignment of error, appellant claims the trial court
erred in permitting improper character evidence in violation of Evid.R. 404(A).
Under the rule, “[e]vidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular
occasion[.]” Such evidence is impermissible because, “[a]lthough character is not
irrelevant, the danger of prejudice outweighs the probative value of such evidence.”
State v. Lytle, 48 Ohio St.2d 391, 401-402, 358 N.E.2d 623 (1976).
There is an exception to the rule: “[e]vidence of a pertinent trait of
character offered by an accused, or by the prosecution to rebut the same is
admissible[.]” Evid.R. 404(A)(1). “Generally, the state is forbidden from initially
introducing evidence of the accused’s bad character until the accused presents
evidence of his good character for the purpose of proving conformity with that good
character.” State v. English, 1st Dist. Hamilton No. C-180697, 2020-Ohio-4682,
¶ 42. See also, e.g., State v. Mitchell, 1st Dist. Hamilton Nos. C-050416 and
C-050417, 2006-Ohio-5073 (the state may not offer evidence of an accused’s bad
character until the accused offers evidence of his good character or reputation); and
State v. Davis, 195 Ohio App.3d 123, 2011-Ohio-2387, 958 N.E.2d 1260, ¶ 26 (8th
Dist.) (pursuant to Evid.R. 404(A)(1), error will not be found when the defense
“opens the door” to otherwise inadmissible evidence). When evidence of character
is admissible, “proof may be made by testimony as to reputation or by testimony in
the form of an opinion.” Evid.R. 405(A).
For his claim of inadmissible character evidence, appellant refers us
to the following portion of Michael Smith’s testimony:
Q. Okay. Have you ever seen these two [referring to appellant and the
victim] fight before?
A. No.
Q. No. There’s been suggestion that these two were like brothers.
They fought like brothers constantly. Had you ever seen that?
A. No. No. No. No. No brothers.
Q. They were like brothers?
A. Not at all.
Q. Why do you say that?
A. Because I believe Hush [referring to the victim] was more in fear
of him due to his reputation.
Defense Counsel: Objection.
The Court: Overruled.
Here, the state elicited testimony in its case in chief that the victim
was in fear of appellant due to appellant’s reputation. This would appear to be
character evidence, and pursuant to Evid.R. 404(A), it would be inadmissible
because appellant did not “open the door” by offering evidence of his character.
However, assuming without deciding that the testimony was
inadmissible, we note that an error in admission pursuant to Evid.R. 404 is subject
to the harmless error analysis. State v. Chambers, 8th Dist. Cuyahoga No. 99864,
2014-Ohio-390, ¶ 39-40. “[E]rror in the admission of evidence is harmless if there
is no reasonable possibility that exclusion of the evidence would have affected the
result of the trial.” Id. at ¶ 44. “[I]t is appropriate to find error harmless where there
is ‘either overwhelming evidence of guilt or some other indicia that the error did not
contribute to the conviction.’” State v. Drew, 10th Dist. Franklin No. 07AP-467,
2008-Ohio-2797, ¶ 31, quoting State v. Ferguson, 5 Ohio St.3d 160, 166, 450 N.E.2d
265 (1983), fn. 5. Given the overwhelming evidence the state presented in this case
establishing appellant’s guilt, even assuming Smith’s testimony constituted
improper character evidence, we find the admission harmless beyond a reasonable
doubt. The third assignment of error lacks merit.
Crim.R. 16
Under the fourth assignment of error, appellant argues the trial court
erred in admitting the Wadena Street surveillance video. He claims the state
withheld the evidence from the defense until days before trial in violation of
Crim.R. 16 and, therefore, the trial court should have excluded the evidence.
The record reflects the police had possession of the surveillance video
soon after the murder incident. However, the state did not disclose the existence of
the video to the defense until November 1, 2019, three days before the scheduled
trial date on November 4. The defense immediately filed a motion in limine. On the
scheduled trial date, the state asked for a two-day continuance for both the
prosecutor and the defense to view the content of the video. The prosecutor
explained that although the state had known about the existence of the video and
the law enforcement had viewed the video, the prosecutor’s office had not been able
to review it because of computer file formatting issues. The prosecutor represented
to the court that the BCI, located in Richfield, was currently in possession of the
video, the video was now available for viewing, and the prosecutor was about to go
to that location to obtain and view the video.
Although the defense had not viewed the video at that time, it asked
the court to exclude the evidence due to the delayed disclosure of its existence. The
court granted the state’s request for continuance to allow both the prosecutor and
the defense to view the content of the video. The court, however, did not rule on the
motion in limine. At trial, Special Agent Surgenor testified regarding how the police
uncovered the surveillance video, and the video was played for the jury.
We first note that the evidence at issue is not exculpatory — what the
video depicts corroborates the account of the state’s witness Campbell. Indeed,
appellant does not claim a Brady violation. Rather, he claims the state violates
Crim.R. 16 and the trial court should have excluded the evidence due to the violation.
Crim.R. 16 requires the prosecution and defense to disclose evidence
to each other. The rule allows the court to impose sanctions for a failure to do so.
The sanctions include an order granting a continuance or prohibiting the party from
introducing the material that has not been disclosed. Crim.R. 16(L)(1). Appellant
argues the delayed disclosure of the surveillance video was a violation of Crim.R. 16
and the trial court should have excluded the video as a sanction for the discovery
violation.
When a discovery violation occurs, it is within the trial court’s
discretion to make any order that the court deems just under the circumstances.
State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 33.
Crim.R. 16(L)((1). See also State v. Rucker, 2018-Ohio-1832, 113 N.E.3d 81, ¶ 20
(8th Dist.) (we review a trial court’s sanction for a discovery violation for an abuse
of discretion).
“[P]rosecutorial violations of Crim.R. 16 result in reversible error
only when there is a showing that (1) the prosecution’s failure to disclose was willful,
(2) disclosure of the information prior to trial would have aided the accused’s
defense, and (3) the accused suffered prejudice.” State v. Jackson, 107 Ohio St.3d
53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 131. See also State v. Lindsey, 8th Dist.
Cuyahoga No. 106111, 2019-Ohio-782, ¶ 48.
Here, the trial court heard the state’s explanations regarding the
delay of the disclosure but did not make a finding on whether the state’s conduct
was willful. Willfulness is “‘intentional deviation from a clear duty or from a definite
rule of conduct, a deliberate purpose not to discharge some duty necessary to safety,
or purposely doing some wrongful acts with knowledge or appreciation of the
likelihood of resulting injury.’” State v. Bowshier, 2d Dist. Clark No. 06-CA-41,
2007-Ohio-5364, ¶ 31, quoting Whitfield v. Dayton, 167 Ohio App.3d 172, 181,
2006-Ohio- 2917, 854 N.E.2d 532, ¶ 30 (2d Dist.). While the prosecutor’s alleged
failure to resolve the technical difficulties regarding the video until days before the
trial is concerning, our review of the record does not indicate the state acted willfully.
Regarding the second and third factors, even if we were to agree that
the knowledge of the existence of the video and its content, which corroborated the
state’s witness and could undermine appellant’s defense (another person committed
the murder), might have potentially aided the defense in preparing for trial,
appellant has not demonstrated that his defense was prejudiced by not having the
ability to meaningfully review or contest the video disclosed three days before the
trial. The trial transcript reflects the defense counsel examined Special Agent Robert
Surgenor at great length regarding the surveillance video. Thus, our review shows
the evidence was disclosed “in time for its effective use at trial” and the timing of the
disclosure did not impair “the fairness of the trial.” State v. White, 10th Dist.
Franklin No. 10AP-34, 2011-Ohio-2364, ¶ 41. The trial court did not abuse its
discretion in admitting the surveillance video after ensuring the defense had an
opportunity to view it before trial. The fourth assignment of error lacks merit.
Recusal
Under the fifth assignment of error, appellant claims the trial judge
presiding over this case should have recused himself from the case because the judge
had represented him in four prior cases.
Canon 3(E)(1)(b) of the Code of Judicial Conduct requires a judge to
be disqualified if he or she has “served as a lawyer in the matter in controversy.”
State v. Smith (In re Berens), 117 Ohio St.3d 1235, 2005-Ohio-7155, 884 N.E.2d
1088, ¶ 4. Moreover, “[p]rior representation of a party by a judge * * * on matters
wholly unrelated to matters presently pending before the judge does not mandate
judicial disqualification, absent a specific showing of actual bias on the part of the
judge.” In re Disqualification of Rothgery, 110 Ohio St.3d 1216, 1216, 2005-Ohio-
7152, 885 N.E.2d 245. “[T]he prevalent American rule of disqualification is limited
to instances in which the judge participated as a lawyer in an earlier stage of the
same case. Under this majority rule, unless there is a specific showing of bias, a
judge is not disqualified merely because he or she worked as a lawyer for or against
a party in a previous, unrelated matter.” Smith at ¶ 5, quoting Mustafoski v. State,
867 P.2d 824, 832 (Alaska App.1994). “A judge in a criminal case is not required to
disqualify himself simply because he may have previously represented the defendant
in some unrelated matter.” Id., quoting Kilgore v. Maass, 89 Ore. App. 489, 492,
749 P.2d 1201 (1988). However, a judge should “uphold and promote the
independence, integrity, and impartiality of the judiciary” and avoid “the
appearance of impropriety.” Canon 1 of the Code of Judicial Conduct.
Here, the trial judge presiding over the trial had represented
appellant as counsel or co-counsel in four prior criminal cases in 2006 and 2007.
Aware of the potential appearance of conflict, the judge addressed this issue in open
court prior to the trial and made a record of the discussion on this issue. The trial
judge stated that his representation of appellant occurred 12 years ago and he did
not remember much about the cases and he did not believe there was a conflict.
Appellant stated he did not remember being represented by the trial judge in the
prior cases.3 An attorney who was co-counsel with the trial judge in one of the prior
cases was present at this hearing and he represented to the trial judge that he had
talked to appellant and appellant “has no problems with [the trial judge] going
forward handling this case.” Appellant’s counsel in this case also indicated on the
record that counsel did not perceive a conflict and had no objections.
In Smith, the court found no grounds for disqualification, noting that
the trial judge did not represent the defendant in the matter now in controversy
before the judge and the judge professed to have no recollection of the defendant in
the earlier case. Similarly here, the prior cases were unrelated to the instant matter
and there was a long lapse of time between the trial court’s representation of
appellant and the instant trial such that neither remember the prior representations
well. As such, our reading of the pertinent portion of the transcript does not reflect
any bias or prejudice on the part of the trial court against appellant.
In any event, we note that even if a disqualification of the trial court
is warranted due to bias or prejudice, an appellate court is without authority to pass
on issues of disqualification or to void a judgment on the ground that a judge should
3 Appellant stated, “I had Greg Robey [as my attorney]. I don't [sic] never seen you or
anything. I don't remember ever seeing you period. I had Greg Robey.”
be disqualified. State v. Donald, 7th Dist. Mahoning No. 09 MA 172, 2011-Ohio-
3400, citing Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775 (1978).
When claiming bias or prejudice on the part of the trial court, a defendant’s remedy
is to file an affidavit of disqualification for prejudice with the clerk of the Supreme
Court pursuant to R.C. 2701.03. State v. Hussein, 10th Dist. Franklin No. 15AP-
1093, 2017-Ohio-5519, ¶ 9. The fifth assignment of error lacks merit.
Cumulative Effect of Errors
Under the eighth assignment of error, appellant claims the
cumulative effect of the trial errors deprived him of his right to a fair trial. Under
the doctrine of cumulative errors, a conviction will be reversed when the cumulative
effect of trial errors deprives a defendant of the constitutional right to a fair trial
even though each of the errors does not individually constitute cause for reversal.
State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). Multiple errors that
are separately harmless may, when considered together, violate a person’s right to a
fair trial. State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph
two of the syllabus. When considering a claim that the cumulative errors deprives
the defendant a fair trial, we are reminded that “‘“[t]here can be no such thing as an
error-free, perfect trial, and * * * the Constitution does not guarantee such a trial.”’”
State v. Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, 967 N.E.2d 1223, ¶ 82 (8th
Dist.), quoting State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996), quoting
United States v. Hasting, 461 U.S. 499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96(1983). As we have discussed above, while we found several potential errors, none
of them are prejudicial. Even considering the potential prejudicial effect of these
potential errors cumulatively, our review of the entire trial indicates appellant
received a fair trial and the cumulative-error principle does not apply to justify a
reversal of appellant’s conviction. The eighth assignment of error lacks merit.
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.
__________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR