State v. Dixon

[Cite as State v. Dixon, 2014-Ohio-4235.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. CT2013-0055
:
LAFONSE DARNEY DIXON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2012-0193
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 18, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX ERIC J. ALLEN
MUSKINGUM CO. PROSECUTOR 713 South Front
RON WELCH Columbus, OH 43206
27 North 5th Street
Zanesville, OH 43701
Muskingum County, Case No. CT2013-0055 2
Delaney, J.
{¶1} Appellant Lafonse Darney Dixon appeals from the November 13, 2013
judgment entry of the Muskingum County Court of Common Pleas convicting him upon
one count each of aggravated murder, kidnapping, and aggravated arson. Appellee is
the state of Ohio.
FACTS AND PROCEDURAL HISTORY
Mark Bretz Stops to Help
{¶2} This case arose around 8:00 a.m. on August 26, 2012, when Mark Bretz
was returning home from an errand at Shirer’s Meat Locker in Muskingum County,
Ohio. Bretz’s route took him back along State Route 208 near the intersection of Steel
Hill Road.
{¶3} Bretz proceeded over a hill and observed something in the middle of the
roadway that was not there when he first passed through. At first, Bretz believed it was
a deer. As he slowed, the figure rose from the roadway and approached his truck. Bretz
realized this was a human being. He would later describe the individual as “scorched”
and badly beaten, completely naked, with skin hanging from her bones. The figure
threw herself on the front of Bretz’s truck, screaming “Help me; they’re trying to kill me.”
{¶4} Bretz immediately called 911 and opened his truck door to assist the
woman. He looked for anyone who might be in pursuit but saw no one. Bretz scooped
the woman up and carried her to the side of the road, laying her in the grass. He gave
her Gatorade to drink and held her hand, telling her help was on the way. The woman
was able to speak indistinctly despite her terrible injuries. Bretz observed a tow strap
Muskingum County, Case No. CT2013-0055 3
around her neck and loosened it. He asked her what her name was, and she said
“Celeste.”
{¶5} Investigators would later determine Celeste Fronsman traveled a third of a
mile from the spot where she was choked, beaten, soaked with gasoline, and set on
fire. Part of her journey took her through dense brush but somehow she made it to the
center of State Route 208 to seek help and encountered Bretz.
{¶6} Bretz asked Celeste where she was from, and she said “Canton.” He
asked who did this to her, and she responded “Katrina Culberson,” “’Fonse’ Dixon,” and
“Washington.” Bretz wrote Culberson’s name on a piece of paper and gave it to law
enforcement when they arrived.
{¶7} Celeste was transported to the Wexner Medical Center at the Ohio State
University and treated in the burn unit. Dr. Larry Jones testified Celeste had third- and
fourth-degree burns covering 70 percent of her body; in 31 years of treating burn
injuries, these were among the worst Jones had seen. He knew upon his initial
examination her injuries would prove fatal. Doctors were able to resuscitate Celeste
until family members could arrive, but further treatment would not be successful.
Celeste was ultimately removed from a ventilator and succumbed to her injuries. The
cause of death was determined to be complications of partial and full-thickness burns to
70 percent of her total body area.
{¶8} In the immediate aftermath of Bretz’s discovery in Muskingum County,
detectives were on their way to Canton, Ohio, to find the people who killed Celeste.
Muskingum County, Case No. CT2013-0055 4
The Investigation Leads to Canton
{¶9} Katrina Culberson, known on the street as “K.C.,” is a prostitute and drug
addict who frequents an area known as the “Newton Zone” in Canton, Ohio. The
Newton Zone is known to police for prostitution, drug use, and drug sales. At the time
of the murder of Celeste Fronsman, Culberson was addicted to heroin and crack
cocaine. Culberson was also known to “control” other prostitutes in the sense that she
set them up with “dates” using a website called Back Page. Culberson sometimes did
“dates” with these prostitutes and took a portion of the money they earned. She was
known to control prostitutes through violence and intimidation. Another prostitute
testified she observed Culberson’s prostitutes with black eyes and evidence of beatings.
{¶10} One of the prostitutes Culberson controlled was Celeste Fronsman.
Culberson was also Celeste’s lover until August 2012. Their relationship was known to
be fraught with violence; Culberson had beaten Celeste and threatened her in the past.
Culberson also encouraged Celeste’s drug habit with crack cocaine provided by
Culberson’s boyfriend: appellant, known as “Fonse.”
{¶11} Appellant sold crack cocaine and other drugs in his community, although
witnesses insisted he did not use crack himself. Appellant had at least one other
girlfriend, the mother of one of his children, with whom he lived, but he otherwise lived
and associated with Culberson. Appellant knew Celeste and was aware of her
relationship with Culberson.
{¶12} Culberson’s days were spent hanging around various Canton “flop
houses” smoking crack and turning tricks. One of the “flop houses” appellant was
known to sell drugs from was located at 502 Gilmore Avenue, Canton. Approximately
Muskingum County, Case No. CT2013-0055 5
two weeks before Celeste’s murder, police raided the Gilmore house. Appellant rode by
on a bicycle, saw the raid in progress, and warned Culberson to stay away.
Culberson and Appellant Decide to Beat and Kill Celeste
{¶13} Appellant and Culberson came to believe Celeste had snitched to police
and was responsible for the Gilmore raid. Culberson testified “Celeste was telling on a
couple people.” Celeste also owed Culberson money, which was often the source of
violence in their relationship.
{¶14} After the Gilmore raid, Culberson and appellant purportedly began to plot
beating Celeste and killing her. Culberson told appellant she knew of a secluded place
near Zanesville where “no one would find her.” Culberson and appellant then embarked
upon several weeks of chasing and terrorizing Celeste.
Culberson and Appellant Stalk Celeste throughout Canton
{¶15} Shortly after the Gilmore raid, Culberson picked up Celeste and took her
to the home of “Old Hooker Alice” where she brought Celeste into the bathroom and
screamed at her, accusing her of snitching. Celeste denied it. Culberson and Celeste
next went to the home of Ralph Horne, where they were joined by appellant. Culberson
briefly left and upon her return appellant told her Celeste “got away,” fleeing to a
neighbor’s house.
{¶16} A neighbor of Ralph Horne testified that on August 12, 2012, a white
female he didn’t know burst into his home screaming that people were after her and she
needed help. The neighbor reluctantly told the woman he would give her a ride and
they got into his van. As they left, the woman said “they’re over there” and a car started
following them. The woman ducked down inside the van; a female in the pursuers’ car
Muskingum County, Case No. CT2013-0055 6
looked inside the van and said “she’s in there.” The neighbor turned onto 15th Street
and the pursuers cut him off, forcing him to stop. A black male and a white female got
out of the pursuers’ car and walked around the front of the neighbor’s van. The woman
inside was screaming; the neighbor put the van in reverse and took off again with the
pursuers behind him, bumping his van. This time, the neighbor drove directly to the
police department. Spotting an officer outside, the neighbor told an officer what
happened; the officer scolded the woman for involving the neighbor in her drama and
told her to get out of the van. The officer told the neighbor to go about his business.
{¶17} The neighbor did not know any of the people involved. He later saw a
newspaper article about the murder of Celeste Fronsman near Zanesville. The
neighbor recognized Celeste as the woman who burst into his home asking for help and
identified appellant as the black male who got out of the pursuers’ vehicle.
{¶18} Jimmy Fronsman is Celeste’s father. He lives in the upstairs apartment of
the residence of Howard Cammon on St. Elmo Street in Canton. Fronsman’s St. Elmo
address was the last known address for Celeste as well. Cammon knew Celeste,
Culberson, and appellant. Sometime during the week before the murder, Culberson,
appellant, and another woman named “Megan” came to Cammon’s house asking if
Celeste was home. Cammon said no and Megan asked to use the bathroom. Cammon
was in the kitchen at the time, but came out to discover Culberson and Megan going
through his house, opening doors and closets, looking for Celeste. Cammon told them
he wasn’t lying about Celeste’s whereabouts and told them to get out. Culberson
threatened Celeste to Cammon, stating she was going to “get” her although he believed
the threats were just “talk.”
Muskingum County, Case No. CT2013-0055 7
August 26, 2012
{¶19} In the early morning hours of August 26, 2012, Culberson went to the
home of Bobby Mann to buy crack cocaine. Monica Washington was asleep on a couch
at Mann’s; Washington is another prostitute and crack cocaine addict known to
appellant, Culberson, and Celeste. Culberson kissed Washington on the forehead,
waking her, and showed her a bag of crack. She asked Washington if she would drive
around with her and smoke the crack. Washington agreed.
{¶20} Culberson drove with Washington in the passenger seat of a tan Chevy
Tahoe owned by Ralph Horne, another of Culberson’s “boyfriends.” At the intersection
of Fulton and Tuscarawas in Canton, Washington spotted Celeste driving her father’s
blue Dodge truck with someone named Kenny Holmes. Washington pointed Celeste
out to Culberson, and the pair chased Celeste to the parking lot of the Canton Wal-Mart.
Culberson pulled up to Celeste’s vehicle and told her she wasn’t going to do anything to
her; she just wanted to tell Celeste about a $900 “date” they could do together.
Culberson got out of the Tahoe and into the Dodge; she told Washington to drive the
Tahoe to the nearby McDonald’s on Dueber Avenue to meet them.
{¶21} Culberson also told Washington to activate the child locks on the rear
doors of the Tahoe. The child locks prevent the rear doors from opening from the
inside of the truck.
{¶22} At McDonald’s, Culberson told Holmes to “get lost.” Celeste parked and
locked her father’s blue truck and got into the Tahoe with Culberson and Washington.
Culberson called appellant on her cell phone and said only that she was “on her way,”
not wanting to alert Celeste that they were about to pick up appellant.
Muskingum County, Case No. CT2013-0055 8
{¶23} As they traveled with Culberson driving, Culberson told Washington
Celeste “f—d [her] man” and Washington began hitting Celeste inside the truck.
Culberson gave Washington pepper spray to use but Washington couldn’t figure it out.
The Tahoe stopped and picked up appellant at the home of Don Fox. When appellant
got into the truck, according to Culberson, they “looked at each other” with the
understanding it was time to put their plan into action.
Appellant and Accomplices Take Celeste to “The Circle Place”
{¶24} Appellant got in the back with Celeste. Culberson was driving and
Washington was in the front passenger seat. Appellant began hitting Celeste in the
face and head, opening a gash on her face.
{¶25} At first, Culberson planned to drive to West Virginia. She stopped at the
home of Tammy Charlton, another prostitute and crack cocaine user, thinking Charlton
would give them directions. Charlton wanted free crack, though, which Culberson and
appellant were unwilling to provide. Charlton looked into the back of the Tahoe and saw
Celeste on the floor, beaten and bloody. She told the group if they wanted to go to
West Virginia they could buy a map and to “get the hell out.”
{¶26} The group drove around Canton with appellant and Washington beating
Celeste inside the Tahoe. Eventually Culberson pulled onto Interstate 77 South and
drove toward Zanesville. In the meantime, appellant and Washington bound Celeste’s
hands with a black belt and a roll of masking tape they found in the truck. Culberson
stopped twice for gas, the second time at a Circle K in Dresden, Ohio, where
Washington was captured on video putting gas in the Tahoe and buying a cookie.
Muskingum County, Case No. CT2013-0055 9
{¶27} Eventually the Tahoe reached “the circle place” in Muskingum County
Culberson knew of. The beating and strangling continued. Appellant said “the circle
place” was not secluded enough so they drove to another spot. Appellant, Culberson,
and Washington beat Celeste and choked her with a piece of a tow strap around her
neck. Finally, appellant told Culberson to get a can of gas from the back of the Tahoe.
Culberson poured gasoline over Celeste and appellant gave her a lighter to set Celeste
alight.
The Aftermath and Arrests
{¶28} Leaving Celeste behind, appellant, Culberson, and Washington snatched
up the gas can and some papers that had fallen out of the Tahoe. They drove back to
Canton and returned the Tahoe to Ralph Horne. Horne was angry upon their arrival
because they made him late for work. Culberson ordered him to go out and clean the
truck. When he did so, he observed blood on the back seat. He asked Culberson what
she did and Culberson responded “I beat her ass.” Horne perfunctorily cleaned up the
truck and went to work, dropping appellant at home on the way.
{¶29} Culberson and Washington went to the home of Gerald Stuckey, another
“boyfriend,” to shower and smoke crack. Culberson collected their bloody clothes and
disposed of them in a dumpster.
{¶30} Appellant picked up Culberson and brought her to the home of Teddy
Johnson, where she smoked crack for three days. While there, she learned police were
looking for her. She was arrested three days after the murder on an outstanding
warrant. Appellant and Washington were brought in for questioning as well. Culberson
Muskingum County, Case No. CT2013-0055 10
and Washington gave a number of false statements denying or minimizing their role in
the murder.
{¶31} Soon, though, Culberson was the first to broker a plea deal less than a
month later, entering pleas of guilty to aggravated murder, kidnapping, and aggravated
arson. Appellee recommended a sentence of life without the possibility of parole in
exchange for her truthful testimony against appellant. Washington in turn pled to
aggravated murder and aggravated arson and was offered life with the possibility of
parole after 25 years in exchange for her truthful testimony.
{¶32} Appellee’s copious evidence at appellant’s trial included the testimony of
accomplices Culberson and Washington, plus that of many witnesses they came into
contact with them throughout their campaign to terrorize, beat, and eventually kill
Celeste Fronsman. Ralph Horne and his neighbor, Tammy Charlton, Don Fox, and
Howard Cammon did not witness the murder itself but reluctantly corroborated details of
the accomplices’ stories of the days leading up to it. Appellee’s case was replete with
physical evidence, including the black belt, masking tape, and clothing used to bind
Celeste. A soil expert testified the ground at the crime scene was positive for gasoline.
Horne turned over the gas can. The Tahoe was examined and found to contain blood
evidence. The tow strap around Celeste’s neck was matched to a piece still inside the
truck. DNA analysis established appellant could not be excluded as a depositor of
DNA on the roll of masking tape used to bind Celeste’s hands. An expert in analysis of
cell phone records corroborated the calls placed amongst the accomplices and
witnesses and tracked appellant’s cell phone calls from Canton, south along Interstate
Muskingum County, Case No. CT2013-0055 11
77, to Cambridge, Ohio and back. Those calls were placed between approximately
2:00 a.m. and 9:30 a.m. on the date of the murder.
{¶33} Finally, Celeste herself provided the strongest evidence against her killers.
She told Mark Bretz the people who did this to her were Katrina Culberson, “Fonse”
Dixon, and “Washington.”
Indictment and Trial
{¶34} Appellant was charged by indictment with one count of aggravated murder
[Count I] pursuant to R.C.2903.01(A), including two capital specifications pursuant to
R.C. 2929.04(A)(7). Appellant was also charged with one count of kidnapping [Count II]
pursuant to R.C. 2905.01(A)(3), a felony of the first degree, and one count of
aggravated arson [Count III] pursuant to R.C. 2909.02(A)(1), a felony of the first
degree.1
{¶35} Appellant entered pleas of not guilty and filed a number of pretrial
motions, most of which are not relevant to this appeal. Appellant filed a Motion to
Suppress Photographs of the victim’s body and appellee responded with a
memorandum contra.
Admission of Photographs of Celeste’s Injuries
{¶36} At the final pretrial, the trial court addressed a number of pending issues,
including the photos appellee intended to introduce at trial. Appellee pared down the
photos from 95 to 14 and reviewed them with defense trial counsel, then the trial court
addressed objections.
1
Appellant was also charged by indictment with one count of conspiracy to commit
kidnapping pursuant to R.C. 2923.01(A)(1) [Count IV] and one count of conspiracy to
commit aggravated murder pursuant to R.C. 2923.01(A)(1) [Count V]. Counts IV and V
were dismissed before trial upon appellee’s motion.
Muskingum County, Case No. CT2013-0055 12
{¶37} Appellee’s photo exhibits 1.1 and 1.2 were taken by a detective of Celeste
at the scene as she was treated by medical personnel. The photos depict the victim as
she was found by Mark Bretz. Appellant did not object to these exhibits.
{¶38} Appellee’s photo exhibits 65 through 71 are autopsy photos intended to be
entered during the coroner’s testimony. The photos show the extent and severity of the
burns over 70 percent of Celeste’s body; specific photos show her torso, her neck and
face, her waist down, and her back. One autopsy photo depicts a subdural subgaleal
hemorrhage on the skull. Another photo shows the victim’s tongue with a bite mark
resulting from trauma. Appellant objected to introduction of all autopsy photos (exhibits
65 through 71). The trial court sustained appellant’s objection to exhibit 67.
{¶39} Appellee’s photo exhibits 72 through 76, the “treatment photos,” were
intended to be introduced during the testimony of Dr. Jones from the O.S.U. burn center
to describe the severity of the individual burns to different regions of the body.
Appellant did not object to exhibits 72, 74, 75, and 76 but did object to exhibit 73
arguing the treatment photos are duplicative of the autopsy photos and unduly
prejudicial. Appellee responded the photos selected were necessary to demonstrate
the severity of the burns to establish the elements of aggravated arson2 pursuant to
R.C. 2909.02, to demonstrate the extent of the victim’s injuries while she was still alive,
2
Aggravated arson pursuant to R.C. 2909.02(A)(1) states, “No person, by means of fire
or explosion, shall knowingly * * * [c]reate a substantial risk of serious physical harm to
any person other than the offender.”
Muskingum County, Case No. CT2013-0055 13
and to show the treatment she required including escharotomies.3 The trial court
admitted exhibit 73 over objection.
Juror 64
{¶40} Juror 64 first came to the parties’ attention during voir dire when he stated
he was familiar with the basic facts of this case from newspaper reports: the victim was
found burnt and later died. He stated nothing he knew led him to any opinion as to
appellant’s guilt or innocence. He later acknowledged his cousin is a judge presiding
over proceedings against one of the accomplices, but he and his cousin met
infrequently and the relationship did not affect his ability to be fair. Finally, Juror 64 was
asked by defense trial counsel whether he agreed a criminal defendant might have
reasons not to testify in his own defense. Juror 64 responded the only reason he could
think of was having something to hide. Upon further questioning, Juror 64 stated he
would not necessarily think appellant had anything to hide and could “probably” put
aside his feelings, although he admitted he was not sure he would be able to adhere to
the presumption of innocence afforded appellant.
{¶41} Defense trial counsel challenged Juror 64 for cause in light of the latter
comment regarding the presumption of innocence. Appellee objected and the trial court
advised it would question him further on these issues. Juror 64 stated he recognized
the presumption of innocence but when asked if he could be fair and impartial if
appellant decided not to testify, responded that it “depends” upon the questions asked.
Juror 64 ultimately concluded, however, he would not hold the decision not to testify
3
An escharotomy is an incision made in the skin during treatment to relieve pressure
due to the inelasticity of burned skin and to maintain circulation easing the buildup of
fluid from severe burns.
Muskingum County, Case No. CT2013-0055 14
against appellant. Both parties were given the opportunity to question Juror 64 further
about these issues and declined to do so.
{¶42} Juror 64 was seated on the jury. During the testimony of the burn
surgeon, at sidebar, the trial court told the parties Juror 64 appeared to be sleeping.
Defense trial counsel stated Juror 64 was asleep during opening statements and the
trial court observed the juror’s head was “bobbing.” Defense trial counsel also asked
the trial court to admonish Juror 64 about speaking to other jurors, alleging during the
jury view of the crime scene, Juror 64 was overheard telling another juror “this is where
she came out.”
{¶43} At this point the trial court excused the jury and questioned Juror 64, who
stated he was not falling asleep, just closing his eyes to aid concentration. He stated he
heard all of the evidence and the trial court further admonished him not to discuss the
case with other jurors. The trial court advised he would keep an eye on Juror 64 and
noted the bailiff saw nothing untoward during the jury view. Defense trial counsel stated
appellant had no objection to the trial court’s handling of Juror 64.
{¶44} Finally, during the testimony of accomplice Katrina Culberson the next
day, the trial court again cleared the courtroom and advised the parties Juror 64 would
be dismissed because the trial court observed him sleeping for eight minutes. The
parties concurred and raised no objections. Juror 64 was brought into the courtroom,
dismissed, and alternate juror number 65 was seated in his place.
Conviction and Sentence
{¶45} Appellant was found guilty as charged and the case proceeded to the
sentencing phase. Appellant presented a number of witnesses in mitigation. The jury
Muskingum County, Case No. CT2013-0055 15
spared appellant’s life and recommended a term of life imprisonment without the
possibility of parole. The trial court found Counts I and III (aggravated murder and
aggravated arson) merged for sentencing purposes and followed the jury’s
recommendation, sentencing appellant to a term of life imprisonment without the
possibility of parole plus 11 years on Count II, kidnapping.
{¶46} Appellant now appeals from the judgment entry of conviction and
sentence.
{¶47} Appellant raises five assignments of error:
ASSIGNMENTS OF ERROR
{¶48} “I. THE TRIAL COURT FAILED TO RECORD THE SEATING OF THE
ENTIRE JURY PANEL IN VIOLATION OF STATE AND FEDERAL STATUTORY AND
CONSTITUTIONAL GUARANTEES. THIS IS IN VIOLATION OF APPELLANT’S FIFTH
AMENDMENT RIGHT TO DUE PROCESS MADE APPLICABLE TO THE STATES BY
THE FOURTEENTH AMENDMENT.”
{¶49} “II. APPELLANT WAS DENIED THREE PEREMPTORY CHALLENGES
AS GUARANTEED BY OHIO RULE 24(G).”
{¶50} “III. APPELLANT WAS PREJUDICED BY JUROR SIXTY FOUR WHO
WAS SPEAKING ABOUT THE CASE WITH FELLOR JURORS DURING THE JURY
VIEW. THIS VIOLATES APPELLANT’S RIGHT TO A FAIR AND IMPARTIAL JURY AS
GUARANTEED BY THE SIXTH AMENDMENT TO THE FEDERAL CONSTITUTION
AND MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.”
{¶51} “IV. THE TRIAL COURT ERRED IN PERMITTING THE JURY TO VIEW
PICTURES OF THE AUTOPSY FOLLOWING OBJECTION BY DEFENSE COUNSEL.
Muskingum County, Case No. CT2013-0055 16
THE USE OF THESE PHOTOS AT TRIAL ALSO VIOLATES THE APPELLANT’S
RIGHT TO DUE PROCESS AS GUARANTEED BY THE FIFTH AMENDMENT MADE
APPLICABLE TO THE STATE’S (sic) BY THE FOURTEENTH AMENDMENT TO THE
FEDERAL CONSTITUTION.”
{¶52} “V. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE FEDERAL
CONSTITUTION MADE APPLICABLE TO THE STATES BY THE FOURTEENTH
AMENDMENT.”
ANALYSIS
I.
{¶53} In his first assignment of error, appellant argues his convictions must be
reversed because the trial court did not record the names of all twelve jurors
empanelled. We disagree.
{¶54} First, we note appellant was provided with juror questionnaires identifying
jurors by name and number, and the empaneled jurors’ individual names are available
on the verdict forms they signed. The jurors’ identities are therefore in the record. It is
not evident, and appellant does not explain, how appellant was prejudiced when
alternate jurors selected were not specifically named as they were seated as alternates.
{¶55} Second, we note defense trial counsel did not object to the trial court’s
method of seating alternate jurors and we therefore review this matter for plain error.
Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” The rule places
several limitations on a reviewing court’s determination to correct an error despite the
Muskingum County, Case No. CT2013-0055 17
absence of timely objection at trial: (1) “there must be an error, i.e., a deviation from a
legal rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious’
defect in the trial proceedings,” and (3) the error must have affected “substantial rights”
such that “the trial court’s error must have affected the outcome of the trial.” State v.
Dunn, 5th Dist. No. 2008-CA-00137, 2009-Ohio-1688, ¶ 89, citing State v. Morales, 10
Dist. Nos. 03-AP-318, 03-AP-319, 2004-Ohio-3391, ¶ 19 (citation omitted). The
decision to correct a plain error is discretionary and should be made “with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” Barnes, supra, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus.
{¶56} Appellant equates this case with State v. Clinkscale, 122 Ohio St.3d 351,
2009-Ohio-2746, 911 N.E.2d 862, ¶ 15, in which the Ohio Supreme Court reversed
convictions because the trial court failed to record the out-of-court dismissal of a
deliberating juror and found recording proceedings related to dismissal and replacement
of a deliberating juror is of critical importance to protecting a defendant's constitutional
rights, especially in capital cases. But, the Court compared those circumstances to the
failure to record “relatively unimportant portions of a trial,” particularly when the
defendant failed to demonstrate that (1) a request was made at trial that the
proceedings be recorded or objections were made to the failures to record, (2) an effort
was made on appeal to comply with App.R. 9 and to reconstruct what occurred or to
establish its importance, and (3) material prejudice resulted from the failure to record
the proceedings at issue. Id. at ¶ 13-15, citing State v. Palmer, 80 Ohio St.3d 543, 554,
687 N.E.2d 68 (1997).
Muskingum County, Case No. CT2013-0055 18
{¶57} We find the instant case has more in common with State v. Palmer, supra,
than with Clinkscale, as observed by the Court, because recording the alternate jurors’
names was not requested, no effort has been made to establish the importance of this
omission, and appellant has not demonstrated material prejudice resulting therefrom.
Id. Furthermore, when the name of an alternate juror became significant, i.e. when
Juror 64 was replaced by Juror 65, the replacement juror’s name was known to the
parties as she was seated in the jury box and is in the record. Finally, as appellee
points out with reference to State v. Hill, seating an anonymous jury does not
necessarily implicate a fundamental right such that the outcome of the trial must be
questioned as a result. 92 Ohio St.3d 191, 200, 2001-Ohio-141, 749 N.E.2d 274.
{¶58} We find any omission in the record of the trial court’s seating of alternate
jurors does not rise to the level of plain error. Appellant’s first assignment of error is
overruled.
II.
{¶59} In his second assignment of error, appellant argues the trial court erred in
failing to permit him to exercise three peremptory challenges as to alternate jurors. We
disagree.
{¶60} Pursuant to Crim.R. 24(G)(2), each party is entitled to three peremptory
challenges when five or six alternative jurors are to be impaneled. In the instant case,
six alternate jurors were impaneled but the trial court permitted only two peremptory
challenges. Neither party objected.
{¶61} Again, we review this matter for plain error as described supra. Pursuant
to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed
Muskingum County, Case No. CT2013-0055 19
although they were not brought to the attention of the court.” Absent the three
requirements for plain error, we will affirm the judgment of the trial court: (1) “there must
be an error, i.e., a deviation from a legal rule,” (2) “the error must be plain,” that is, an
error that constitutes “an ‘obvious’ defect in the trial proceedings,” and (3) the error must
have affected “substantial rights” such that “the trial court’s error must have affected the
outcome of the trial.” State v. Dunn, supra, 2009-Ohio-1688 at ¶ 89.
{¶62} The record indicates the trial court stated each party could exercise two
peremptory challenges to the six alternate jurors who were impaneled. This statement
is clearly a deviation from the Rule; each party was entitled to three peremptory
challenges of the six prospective alternates. We find, though, this matter does not
constitute plain error because this deviation from the Rule did not affect appellant’s
substantial rights such that it affected the outcome of the trial. Appellant points to no
evidence in the record that, given the option of exercising one additional peremptory
challenge to the alternates, the outcome of this trial would have been different.
{¶63} While the trial court was in error in not permitting the required number of
peremptory challenges, we do not find this error affected appellant’s substantial rights.
Appellant has thus failed to demonstrate plain error and his second assignment of error
is overruled.
III.
{¶64} In his third assignment of error, appellant argues his right to a fair and
impartial jury was violated by the presence of Juror 64 on the panel before that juror
was removed. We disagree.
Muskingum County, Case No. CT2013-0055 20
{¶65} Crim.R. 24(B)(9) permits the court to refuse to disqualify a juror due to a
preconceived opinion as to guilt or innocence if, after examination, the court believes
the juror will render an impartial verdict. State v. Iden, 5th Dist. Licking No. 96-CA-88,
unreported, 1996 WL 753206 (Dec. 12, 1996) at *3, citing State v. Grubb, 44 Ohio
App.3d 94, 95, 541 N.E.2d 476 (1988). We review the trial court’s decision for an abuse
of discretion. Id. We have followed the holding of the Twelfth District Court of Appeals
in City of London v. Scurry, wherein the Court stated:
A party challenging a jury panel has the burden of showing that the
jurors were either unlawfully empanelled or that the jurors cannot
be fair and impartial. [ ]. Mere speculation as to bias among the
pool of prospective jurors will not justify quashing the entire venire. [
]. This court will not reverse a trial court's decision not to dismiss an
entire jury panel absent an abuse of discretion. [ ]. (internal citations
omitted).
State v. Feagin, 5th Dist. Richland No. 05 CA 1, 2006-Ohio-676, at
¶ 23, appeal not allowed, 111 Ohio St.3d 1417, 2006-Ohio-
5083, 854 N.E.2d 1094, citing City of London v. Scurry, 12th Dist.
Madison No. CA95-10-033, unreported, 1996 WL 406263 (July 22,
1996).
{¶66} Appellant argues Juror 64 poisoned the jury panel prior to his removal for
three reasons: he demonstrated an inability to be fair and impartial, he is the cousin of
the judge presiding over an accomplice’s trial, and he allegedly spoke to other jurors
during the jury view. We disagree with appellant’s characterizations of Juror 64’s
Muskingum County, Case No. CT2013-0055 21
responses to questions by the trial court. While he first indicated an inability to honor
the presumption of innocence, upon further inquiry he stated he stated he could be fair
and impartial and would not penalize appellant if he didn’t testify. He further stated he
rarely sees his cousin and has not discussed the case with him, and there is no
evidence Juror 64 actually spoke to another juror during the jury view. Juror 64 was
eventually removed for other reasons (sleeping) and the record contains no evidence he
tainted the jury.
{¶67} Under these circumstances, we are unable to say the trial court’s decision
not to disqualify Juror 64 was unreasonable, arbitrary, or unconscionable. Appellant’s
third assignment of error is overruled.
IV.
{¶68} In his fourth assignment of error, appellant argues the trial court should
not have permitted the jury to view the autopsy photos. We disagree.
{¶69} The admission or exclusion of evidence is a matter left to the sound
discretion of the trial court. Absent an abuse of discretion resulting in material prejudice
to the defendant, a reviewing court should be reluctant to interfere with a trial court’s
decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
In State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984), paragraph seven of the
syllabus, the Supreme Court of Ohio held:
Properly authenticated photographs, even if gruesome, are
admissible in a capital prosecution if relevant and of probative value
in assisting the trier of fact to determine the issues or are illustrative
of testimony and other evidence, as long as the danger of material
Muskingum County, Case No. CT2013-0055 22
prejudice to a defendant is outweighed by their probative value and
the photographs are not repetitive or cumulative in number.
{¶70} Evid.R. 104 places the trial court in the position of determining
admissibility of evidence. Evid.R. 401 defines “relevant evidence” as “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Evid.R. 402 states:
All relevant evidence is admissible, except as otherwise provided
by the Constitution of the United States, by the Constitution of the
State of Ohio, by statute enacted by the General Assembly not in
conflict with a rule of the Supreme Court of Ohio, by these rules, or
by other rules prescribed by the Supreme Court of Ohio. Evidence
which is not relevant is not admissible.
{¶71} Further consideration is required under Evid.R. 403(A): “Although relevant,
evidence is not admissible if its probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”
{¶72} Appellant contends the trial court abused its discretion in permitting the
autopsy photos to be shown over objection because the photos are duplicative of the
treatment photos and serve no legitimate purpose beyond shocking the jury.
{¶73} The photos at issue in this case are unquestionably grisly. Nevertheless,
“provided the probative value of each photograph in the case at bar outweighs its
prejudicial impact and the photograph is neither repetitive nor cumulative in nature, its
admission as evidence will not be disturbed as an abuse of discretion by the trial court.”
Muskingum County, Case No. CT2013-0055 23
State v. Morales, 32 Ohio St.3d 252, 258, 513 N.E.2d 267 (1987). The trial court
reviewed each photograph carefully and admitted only those found not to be
unnecessarily duplicative. We have reviewed each of the admitted photos and agree
they are not repetitive or cumulative in nature. The probative nature of these
photographs substantially outweighs their prejudicial value because the photos capture
the victim and the injuries she suffered at three different points: upon her discovery by
Bretz, during her resuscitation and treatment while still living, and postmortem. The
autopsy photos, we regret to note, best illustrate the extent and severity of the victim’s
injuries. The trial court did not abuse its discretion in admitting the limited number of
photos.
{¶74} We find the admission of the photographs in this case was relevant and
not unduly prejudicial. See, State v. Woods, 5th Dist. Stark No. 2013CA00176, 2014-
Ohio-2375; State v. Patterson, 5th Dist. Stark No. 2012CA00098, 2013-Ohio-1647.
{¶75} Appellant’s fourth assignment of error is overruled.
V.
{¶76} In his fifth assignment of error, appellant argues he received ineffective
assistance of counsel. We disagree.
{¶77} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such
claims, “a court must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might
Muskingum County, Case No. CT2013-0055 24
be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,
101, 76 S.Ct. 158 (1955).
{¶78} “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in
the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted
“outside the wide range of professionally competent assistance.” Id. at 690.
{¶79} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
{¶80} Appellant cites a number of instances of alleged ineffective assistance of
defense trial counsel and we will examine each in turn.
{¶81} First, appellant argues counsel was ineffective in failing to strike Juror 64.
When a defendant bases an ineffective-assistance claim on an assertion that his
counsel allowed the impanelment of a biased juror, the defendant “must show that the
juror was actually biased against him.” (Emphasis in original.) State v. Mundt,115 Ohio
St.3d 22, 31, 2007-Ohio-4836, 873 N.E.2d 828 (2007) citing Miller v. Francis, 269 F.3d
609, 616 (C.A.6, 2001). (internal citations omitted).
{¶82} As we discussed supra in our discussion of appellant’s third assignment of
error, the record does not establish Juror 64 was biased. Upon further inquiry by the
trial court, he indicated his ability to be impartial. Appellant has not demonstrated actual
bias. Further, counsel’s decision to challenge or exclude a juror is usually ascribed to
Muskingum County, Case No. CT2013-0055 25
trial strategy. Mundt, supra, 2007-Ohio-4836 at ¶ 64. Decisions which constitute trial
strategy do not generally rise to the level of ineffective assistance of counsel. A
reviewing court must adopt a deferential attitude to the strategic and tactical choices
counsel made as part of a trial strategy. State v. Griffie, 74 Ohio St.3d 332, 333, 658
N.E.2d 764 (1996). “Few decisions at trial are as subjective or prone to individual
attorney strategy as juror voir dire, where decisions are often made on the basis of
intangible factors.” Miller v. Francis, supra, 269 F.3d at 620.
{¶83} In this case, we conclude the seating of Juror 64 does not rise to the level
of ineffective assistance of counsel.
{¶84} Appellant further argues trial counsel was ineffective in “failing to make
proper objections” throughout the trial. We note appellant cites no specific instance
where counsel should have objected and failed to do so, instead arguing generally
counsel made very few objections throughout the trial. Mere failure to object is not
enough to sustain a claim of ineffective assistance of counsel. State v. Crawford, 5th
Dist. No. 07 CA 116, 2008–Ohio–6260, ¶ 72, appeal not allowed, 123 Ohio St.3d 1474,
2009–Ohio–5704, 915 N.E .2d 1255, citing State v. Fears, 86 Ohio St.3d 329, 347, 715
N.E.2d 136 (1999). We respect the fact this was a capital case and counsel had reason
to be cognizant of the impression made upon the jury by frequent objections, above and
beyond the general considerations attributed to trial strategy.
{¶85} Appellant next argues counsel was ineffective in opening the door to
certain testimony by appellee’s expert which increased the statistical probability DNA
evidence found in the case belonged to him. Defense trial counsel asked the DNA
expert about statistical probabilities within the smaller pool of the African-American
Muskingum County, Case No. CT2013-0055 26
population, resulting in a higher statistical probability the DNA belonged to appellant.
The resulting effect on statistical probabilities was then exhaustively explained by both
parties. In the context of the entire trial, we find defense trial counsel was not deficient
in this line of questioning despite any unintended result. See, State v. Boyd, 5th Dist.
Richland No. 12CA23, 2013-Ohio-1333. Trial strategy and even debatable trial tactics
do not establish ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d 412,
2006–Ohio–2815, ¶ 101.
{¶86} Finally, appellant argues counsel was ineffective in making only a
“general” Crim.R. 29 motion. Appellant faults counsel for failing to set forth “specific
grounds” for his acquittal and then fails to reveal what those specific grounds should
have been. Our review of the substantial record in this case reveals defense trial
counsel acted thoughtfully and deliberately in reserving the right to make a Crim.R. 29
argument and then doing so. The purpose of a motion for acquittal pursuant to Crim.R.
29(A) is to test the sufficiency of appellee’s evidence and if the evidence is insufficient,
to take the case from the jury. Appellant fails to point out any argument that could have
been raised as to the sufficiency of the evidence, much less how such argument would
have resulted in his acquittal, and we therefore decline to find trial counsel ineffective for
not being more specific.
{¶87} Appellant’s fifth assignment of error is overruled.
Muskingum County, Case No. CT2013-0055 27
CONCLUSION
{¶88} Appellant’s five assignments of error are overruled and the judgment of
the Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Baldwin, J., concur.