State v. Portis

[Cite as State v. Portis, 2021-Ohio-608.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28677
:
v. : Trial Court Case No. 2019-CR-3170
:
JARYLD PORTIS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 5th day of March, 2021.
...........
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Defendant-appellant Jaryld Portis appeals from his convictions for felonious
assault and aggravated robbery. Portis claims the State did not present evidence
sufficient to support his convictions and that the convictions were against the manifest
weight of the evidence. He also claims the trial court abused its discretion when
instructing the jury on complicity. Finally, Portis asserts that prosecutorial misconduct
and cumulative error resulted in an unfair trial.
{¶ 2} This court has reviewed the record and concludes that Portis’s assertions
lack merit. Accordingly, the judgment of the trial court is affirmed.
I. Facts and Procedural Background
{¶ 3} On September 24, 2019, Willie Smith and his cousin Errick Coleman were
assaulted, and Smith was robbed. Following an investigation, Portis was identified as
the assailant. On October 2, 2019, Portis was indicted on two counts of felonious assault
(deadly weapon) in violation of R.C. 2903.11(A)(2), two counts of felonious assault
(serious harm) in violation of R.C. 2903.11(A)(1), and two counts of aggravated robbery
in violation of R.C. 2911.01(A)(3).
{¶ 4} The matter proceeded to a jury trial. In the State’s case, Smith testified that
he managed a rental property located at 78 and 80 Pointview Avenue in Dayton. The
property, a duplex, housed two families. Smith testified that Portis and Melinda Sturgill
moved into 80 Pointview Avenue a few months prior to the September attack.
{¶ 5} Smith was 80 years old, and therefore his cousin, Coleman, helped him with
maintenance of the properties. Smith testified that he picked up Coleman around noon
on September 24, 2019, and the two went to the Pointview duplex to collect rent. Smith
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testified that the 78 Pointview tenants and Sturgill met him outside and each paid him
$550 in cash for their rent. He also testified that he and Coleman were ready to leave
the duplex when Portis arrived in a vehicle; Portis informed Smith that he believed there
was a problem with the fuse box, because the kitchen lights in his unit were not working
properly.
{¶ 6} Smith testified that he and Coleman descended into the basement and were
looking at the fuse box when the lights by the stairs went out. Smith then observed Portis
turn off another light which was near the fuse box. Smith testified that Portis “started
chopping me in the head” with something that felt like a machete. Smith admitted he
never saw the weapon used against him and did not observe who was hitting him. Smith
put his hands up to protect his head and then his finger was cut, resulting in the finger
being severed. Smith did not know how many times he was hit with the weapon. He
testified that he fell to the floor and was still being hit when his assailant went through his
pockets and removed the rent money and other items; the assailant then left, and
Coleman helped Smith up the stairs and out of the unit. Once outside, they asked
neighbors to call 911. Smith sustained lacerations to his head which required
approximately 37 staples to close. He also sustained a skull fracture and the loss of his
finger. He remained in an intensive care unit for several days.
{¶ 7} The State also presented the testimony of Coleman. Coleman confirmed that
he accompanied Smith to the duplex on September 24, 2019. He further testified that
Sturgill brought her rent money to the car and stated that she was $20 short. Smith and
Sturgill agreed she could pay the additional money the following day. Coleman testified
that Portis then pulled up to the duplex in a tan Lincoln vehicle. Portis informed Smith
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the kitchen lights were out and stated his belief there was an issue with the fuse box and
he did not know how to fix a fuse.
{¶ 8} According to Coleman, he, Smith, and Portis went into the basement; the
only entrance to the basement was through the unit, and the other duplex’s tenants could
not access Portis’s basement. Coleman testified there was a light switch at the top of
the basement stairs, which controlled a light near the stairs, and another light further into
the basement near the fuse box, which was controlled by a pull string. According to
Coleman, the light in the basement was dim, but he was able to see. However, he had
to use the flashlight on his cellphone in order to read the numbers on the fuse box,
because the numbers were small. Coleman testified that Portis stated he was going to
retrieve a flashlight. A few moments later, as Coleman was looking at the fuse box, the
light near the stairs went out, and then the light near the fuse box went out. Coleman
then felt something strike his head several times. He testified he observed the weapon,
which appeared to be a machete or some type of knife. Coleman testified that, as he
turned toward his attacker, the light on his phone shone on Portis’s face. Portis then hit
Coleman in the face. Coleman testified that Portis also hit Smith and took the rent money
from Smith’s pocket. Portis then ran up the basement stairs. Coleman testified he and
Smith left the house and asked neighbors to call 911, because his (Coleman’s) cell phone
had been damaged during the assault. Coleman testified that he was hit approximately
13 to 15 times. During the attack, both his skull and jaw were fractured, he suffered
multiple lacerations to his head, and he suffered a bleed in his brain. He remained in
intensive care for several days.
{¶ 9} Dayton Police Department Officer Justin Hayes testified that he was on
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routine patrol when he received a dispatch regarding a stabbing at 80 Pointview Avenue.
When he arrived at the scene, he observed two older men seated in a Jeep and being
attended to by emergency medical technicians. Hayes observed that Smith was missing
a finger and had “numerous severe injuries to his head[.]” Tr. p. 92. Hayes described
the wounds to Smith’s head as “divots in the back of his scalp and skull.” Id. According
to Hayes, Coleman had similar injuries to his head, and the “left side of his face was
starting to puff out grotesquely as though he had a fracture in his jaw or possibly [his] orbit
area.” Tr. p. 93. Hayes testified that he asked Smith what had happened, and Smith
indicated Portis had assaulted him and stolen his money.
{¶ 10} Hayes called for backup because he did not know whether the suspect was
still in the home. Hayes testified that, upon the arrival of the backup officers, they called
out for anyone in the unit to exit and Sturgill came out. Sturgill informed Hayes that Portis
was driving a Lincoln Town Car with license plates which belonged to a different vehicle.
Hayes put out a broadcast with the description of the car.
{¶ 11} Hayes testified that he then reported to Miami Valley Hospital, where he
took a statement from Coleman. Hayes testified he was able to see Coleman’s skull
through the injuries to the scalp. Hayes also took a statement from Smith. Hayes
testified that both men were lucid when he spoke to them, and both men identified Portis
as the attacker.
{¶ 12} Dayton Police Lieutenant Randy Beane testified that the next morning
(September 25, 2019), he was on routine patrol at 1:30 a.m. Beane was traveling north
on Riverside Drive; when he passed through the intersection with Helena Street, he
spotted a car stopped at a red light on Helena Street that matched the vehicle description
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given by Hayes. Beane testified the car’s lights turned off as it turned onto Riverside
Drive. Beane called for assistance, turned around, and began to follow the car. Another
officer who was located further down Riverside Drive placed stop sticks across the road.1
As the Lincoln approached the stop sticks, Beane activated his cruiser lights and the car
began to flee. The car crossed the stop sticks but continued on, reaching a speed of 70
m.p.h. The car also ran a red light and crossed over into the oncoming lane. Beane
decided to use the front of his cruiser to hit the rear of the Lincoln, causing it to spin out
and finally come to a stop. Beane testified that by the time he was able to exit his cruiser,
the driver of the car had fled into the woods. A female passenger, later identified as Cora
Pendal, was found in the vehicle. Beane testified other officers began to chase the
driver.
{¶ 13} Dayton Officer Chelsea Weitz testified that she responded to the area where
the car chase ended and began searching the area. After being informed the suspect
had jumped into the river, she observed wet footprints on the adjacent bike path. Weitz
and another officer followed the footprints and ultimately found Portis lying in a bushy
area. Portis was arrested and transported to the Safety Building.
{¶ 14} Dayton Police Detective Rod Roberts testified he interviewed both Portis
and Pendal. During Pendal’s interview, it was determined that Portis had just picked her
up at a local hotel and was taking her home when the chase began. She informed
Roberts that she asked Portis to slow down during the chase, but Portis merely told her
to shut up.
{¶ 15} Roberts also interviewed Portis, who denied knowing how Smith and
1
Stop sticks consist of spikes which cause a vehicle’s tires to deflate in about one minute.
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Coleman sustained their injuries. Portis admitted that he knew Smith and that Smith had
recently asked him to prevent his dog from defecating in the neighbor’s yard. Portis
stated he was aware Sturgill had already paid the rent when he asked Smith to check the
fuse box. According to Portis’s statement to Roberts, Portis accompanied Smith and
Coleman into the basement, then left the men in the basement and left the premises in
the Lincoln automobile. Portis also stated that Smith and Coleman were still at the
duplex when he returned. Portis told Roberts he left again because he had a woman in
his vehicle and had to take her somewhere; he indicated that he did not return home after
that and stayed at a local hotel that night. Roberts testified that he later went to that hotel
and learned that, during the late evening on the day of the attack, Portis had secured a
room for three days.
{¶ 16} In his defense, Portis presented the testimony of Sturgill, who stated that
Portis was her fiancé. Sturgill testified that she and Portis moved into 80 Pointview in
the last week of July 2019. According to Sturgill, she had worked the night shift and
arrived home at 9:00 a.m. on September 24, 2019; Smith came for the rent money at
approximately 10:30 a.m., and she was only able to pay him $530. Sturgill stated that
Smith agreed to let her pay the remaining $20 the following day. After paying Smith,
Sturgill went upstairs and went to bed. Sturgill testified that she was asleep when Portis
called her on her cellphone and stated that the landlord had “asked him to make sure the
dog was in the house because they were about to cut the grass.” Tr. p. 273. According
to Sturgill, she brought the dog into the house through the back door, locked the door,
and went back to bed. Sturgill further testified she was again awakened by Portis, who
asked if she knew where to find a flashlight. She indicated she did not know and then
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tried to go back to sleep. When she heard voices, she walked downstairs and observed
Portis, who informed her that “the landlord and the other person were there looking at the
fuse box.” Tr. p. 276. She testified that Portis then walked up to the second floor, and
she followed him; Portis then informed her that he was leaving, and he walked back
downstairs and out the front door. Sturgill testified she heard a car start and drive away,
at which point she went back to her bedroom, locked the door, and once again went to
sleep. Sturgill was awakened again when the dog, which was in its cage on the first
floor, began barking. She testified she heard a door slam, and she again went
downstairs. According to Sturgill, both the front and back doors were open. She went
to lock the back door and observed Smith and Coleman; she described both men as
bloody. Sturgill asked the pair what had happened and whether they were okay. She
testified that Coleman stated that they were okay, and the two men walked out of the unit.
{¶ 17} Sturgill testified that she observed neighbors outside and then went upstairs
to get dressed. She then heard a voice over a loudspeaker asking anyone inside 80
Pointview “to come outside with their hands up.” Tr. p. 280. Sturgill went outside and
was handcuffed. She testified she did not know where Portis had gone, but she told the
police he was driving her Lincoln Town Car. She told the police the license plates on the
car had been on her prior car. She also attempted to call Portis, but her call went straight
to voicemail. She then texted Portis stating “that something had happened to the
landlord, and that the police were asking about him, and [she] was scared.” Tr. p. 282.
{¶ 18} Portis also testified at trial. He stated he made breakfast when Sturgill
arrived home, then walked outside to go to the gas station; he saw Coleman and Smith,
who asked him to put his dog away. Portis testified that he called Sturgill from outside
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the house and told her to put the dog inside. He then went to a gas station on
Siebenthaler Avenue. On his way home, Portis stopped at a store on Pointview Avenue
because he was flagged down by a woman he knew as Ginger. According to Portis,
Ginger told him she needed a place to stay. When Portis informed Ginger she could not
stay at his home, she asked him to take her to a hotel. She also stated that she did not
have any identification with which to secure a hotel room. Portis testified that he drove
back to his home in order to get his identification.
{¶ 19} According to Portis, when he pulled up to his residence and exited the car,
Smith called him over to his car. Portis stated Smith asked him to stop letting his dog
defecate in the neighbor’s yard. Portis then informed Smith that one-half of the kitchen
did not have electricity and that he thought a fuse had blown; Smith told him Coleman
would look at the fuse box. Portis indicated that he went inside and placed his dog in a
cage, then he unlocked the basement door and accompanied Smith and Coleman into
the basement.
{¶ 20} Portis testified that the basement was dark, so he and Coleman used the
flashlights on their respective cellphones to light the area. Portis testified that he asked
the men if they wanted a flashlight, and one of them responded affirmatively. Portis went
upstairs to find a flashlight, but he was unsuccessful. He then went to the second floor
and asked Sturgill where he could find a flashlight. When Sturgill stated she did not know
where to locate a flashlight, Portis informed her that he was leaving the house. Portis
testified that he wanted to leave quickly because he did not want Sturgill to see the woman
who was still in his car. Portis testified that when he left, he went to his mother’s home
for a few minutes and then to the Dayton Motor Hotel on Keowee Street; Portis secured
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a room with his identification, and Ginger paid for the room. At some point thereafter,
Portis received a text from Sturgill indicating that the police were searching for him.
Portis testified he also received a call from a neighbor, who told him the police were at
his (Portis’s) home.
{¶ 21} According to Portis, he parked his car and started walking and praying; he
wanted to find out what was going on at home, but his phone had no power. Portis stated
that he went back to the Dayton Motor Hotel, but because Ginger was a drug addict, he
did not want to stay there. Portis eventually left the hotel in his automobile and
encountered Cora Pendal as he was driving on Lance Street; Pendal asked for a ride to
a gas station. As Portis was driving her to the gas station, he observed Beane’s cruiser.
Portis testified he did not pull over for the traffic stop because he knew he had an active
warrant against him and he did not want to go to jail.
{¶ 22} Portis also testified that he was left-handed and his left arm had been
previously wounded when he was the victim of a shooting. Portis stated the injury to his
arm limited his strength and mobility in that arm. He stated he could not shoot a
basketball because he could not lift his arm up without feeling pain.
{¶ 23} On cross-examination, Portis testified that he rented the hotel room for
Ginger at 12:40 p.m. When asked why he turned off his vehicle’s lights when he was
being pursued, Portis stated that he did not realize he had turned the lights off and must
have panicked. Finally, he admitted he had a prior conviction for robbery.
{¶ 24} Portis was found guilty on all four counts of felonious assault and one count
of aggravated robbery. The jury found Portis not guilty on the count of aggravated
robbery relating to Coleman.
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{¶ 25} At sentencing, the counts of felonious assault (serious harm) were merged
with the counts of felonious assault (deadly weapon), and the State elected to proceed to
sentencing on the two counts of felonious assault (deadly weapon). The trial court
imposed an eight-year prison sentence on each count of felonious assault and an 11-year
sentence for the aggravated robbery. All of the sentences were ordered to run
consecutively, for an aggregate minimum prison term of 27 years and an aggregate
maximum term of 32.5 years.
{¶ 26} Portis appeals.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 27} The first assignment of error asserted by Portis states as follows:
THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT AND
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN
PORTIS’S CONVICTIONS.
{¶ 28} Portis contends that the State did not present evidence sufficient to support
his convictions and the convictions were also against the manifest weight of the evidence.
{¶ 29} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678
N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), which states:
An appellate court's function when reviewing the sufficiency of the evidence
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to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. 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.
(Citation omitted). Id. at paragraph two of the syllabus.
{¶ 30} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation, a
“ ‘court [while] 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).
{¶ 31} Further, “[a]lthough sufficiency and manifest weight are different legal
concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a
finding that a conviction is supported by the manifest weight of the evidence necessarily
includes a finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin
No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85
N.E.3d 501, ¶ 58 (2d Dist.). As a result, “a determination that a conviction is supported
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by the weight of the evidence will also be dispositive of the issue of sufficiency.” (Citations
omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
{¶ 32} Also important is the axiom that “[b]ecause the factfinder * * * has the
opportunity to see and hear the witnesses, the cautious exercise of the discretionary
power of a court of appeals to find that a judgment is against the manifest weight of the
evidence requires that substantial deference be extended to the factfinder's
determinations of credibility. The decision whether, and to what extent, to credit the
testimony of particular witnesses is within the peculiar competence of the factfinder, who
has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288,
1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 33} “Contrastingly, the decision as to which of several competing inferences,
suggested by the evidence in the record, should be preferred, is a matter in which an
appellate judge is at least equally qualified, by reason and experience, to venture an
opinion.” Id. “Consequently, we defer more to decisions on what testimony should be
credited, than we do to decisions on the logical force to be assigned to inferences
suggested by evidence, no matter how persuasive the evidence may be.” State v.
Brooks, 2d Dist. Montgomery No. 21531, 2007-Ohio-1029, ¶ 28, citing Lawson at *4.
{¶ 34} Portis first contends that the State failed to present evidence sufficient to
establish identification. In support, he claims the basement was dark, which prevented
the two men from being able to see their attacker. He also notes that he and Coleman
had not met prior to the day of the attack, that he and Smith had seen each other only on
a few occasions, and thus that the victims were not “entirely familiar with [him] to be able
to recognize him under the circumstances.” He also claims the men did not identify him
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as the perpetrator when they were questioned at the scene.
{¶ 35} During trial, Smith testified that the light near the basement stairs went out,
and he then observed Portis turn off the string light, after which he was immediately hit.
He testified he was hit multiple times and that the rent money and other items were
removed from his pocket while he was being hit. Smith testified he never saw Portis hit
him because the basement was dark after the lights were turned off. However, Coleman
testified he was hit in the head and that, as he turned, he observed Portis, who then hit
him in the face and fractured his jaw. Coleman also testified that Portis hit Smith and
took the money from Smith. Coleman testified he had a good opportunity to observe
Portis when Portis first approached the men outside the unit just minutes before the attack
occurred.
{¶ 36} Officer Hayes testified that Smith and Coleman were still at the scene when
they provided information identifying Portis as the perpetrator. He testified they also
identified Portis when he interviewed them later at the hospital. Hayes testified Smith
informed him that Portis was the assailant and that Portis took the rent money from him.
{¶ 37} Based upon this evidence, we cannot say the jury lost its way in concluding
Portis was the principal actor in the attack on Coleman. Further, Coleman’s testimony
supported a finding that Portis also attacked Smith.
{¶ 38} Next, Portis contends the State did not present sufficient evidence to
establish that a deadly weapon was used in the commission of the assaults. In support,
he argues that no weapon was recovered and that there was no expert testimony
regarding what caused the injuries to each man.
{¶ 39} R.C. 2923.11(A) defines “deadly weapon” as “any instrument, device, or
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thing capable of inflicting death, and designed or specially adapted for use as a weapon,
or possessed, carried, or used as a weapon.” “Committee comment on this generic
definition points out that a deadly weapon is anything capable of causing death and is
carried, possessed or used as a weapon such as a rock or cane when used for offensive
or defensive purposes.” State v. Clark, 2d Dist. Clark No. 1298, 1979 WL 208322, *1
(May 23, 1979). “Illustrations of things, innocent in themselves, that may be capable to
causing death include a baseball bat, a Coke bottle, a toy pistol and an unloaded gun.
The statute is not limited to instruments that are dangerous or deadly per se, but includes
anything that may be possessed that has an actual or potential danger of serious or
deadly harm under the circumstances encountered in a theft offense such as robbery.”
Id. In other words, “[t]he definition of deadly weapon in R.C. 2923.11(A) imposes two
requirements of proof. First, the article must be capable of inflicting death. Second, the
article must either (1) have been designed or specially adapted for use as a weapon or
(2) possessed, carried, or used as a weapon. When use is a factor, the manner of its
use and the nature of the instrument itself determines its capacity to inflict death.” State
v. Schooler, 2d Dist. Montgomery No. 19627, 2003-Ohio-6248, ¶ 21, citing State v.
Deboe, 62 Ohio App.2d 192, 406 N.E.2d 536 (6th Dist.1977); State v. Taylor, 2d Dist.
Greene No. 2018-CA-9, 2019-Ohio-142, ¶ 90.
{¶ 40} We first note that “expert testimony is only offered to assist the trier of fact,
and such testimony may be believed or disbelieved by such trier.” State v. Coney, 10th
Dist. Franklin No. 94APA05-670, 1995 WL 65013, *4 (Feb. 16, 1995), citing Vetter v.
Hampton, 54 Ohio St.2d 227, 230, 375 N.E.2d 804 (1978). Thus, contrary to Portis’s
suggestion, expert testimony is not required to establish that an instrumentality is capable
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of causing death. Coney at *4. “Common sense and [the] experience of those upon [a]
jury observing the instrument that was in the hands of [a defendant], under the
circumstances as presented within [a] case, dictate the appropriate finding.” Id.{¶ 41} Next, although no weapon was recovered and Smith did not see what the
assailant used in the assault, there was evidence that Coleman observed a weapon he
described as a machete or knife. Smith also testified he was hit with something he
described as feeling sharp, like a machete. Further, the evidence demonstrated that the
assailant hit both men with something that was capable of denting their scalps, caused
serious cuts to their heads, and severed Smith’s finger. Both men sustained severe
injuries which caused them to be hospitalized in the intensive care unit for several days.
{¶ 42} When viewed in a light most favorable to the prosecution, the record
contains sufficient evidence that some instrumentality was utilized by the assailant as a
deadly weapon.
{¶ 43} Moreover, the evidence in this record demonstrated that Portis used a
deadly weapon to attack Coleman and Smith and that he removed money from Smith’s
pocket. Based upon the evidence, we cannot say the jury clearly lost its way in
convicting Portis. The first assignment of error is overruled.
III. Complicity Instruction
{¶ 44} Portis’s second assignment of error is as follows:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT INSTRUCTED
THE JURY AS TO AIDING AND ABETTING ABSENT A COMPLICITY
CHARGE AND ABSENT SUFFICIENT EVIDENCE TO WARRANT THE
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INSTRUCTION.
{¶ 45} Portis argues the trial court should not have instructed the jury on complicity
to commit felonious assault and aggravated robbery because the indictment failed to
explicitly indict on complicity and because the record did not support the instruction.
{¶ 46} Jury instructions “must be given when they are correct, pertinent, and timely
presented.” State v. Joy, 74 Ohio St.3d 178, 181, 657 N.E.2d 503 (1995). A trial court
must fully and completely give jury instructions which are relevant and necessary for the
jury to weigh the evidence and discharge its duty as the fact-finder. State v. Comen, 50
Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus.
{¶ 47} We review a trial court's jury instructions for an abuse of discretion. State
v. Jones, 2015-Ohio-5029, 52 N.E.3d 263, ¶ 13 (12th Dist.). An appellate court may not
reverse a conviction in a criminal case based upon jury instructions unless “it is clear that
the jury instructions constituted prejudicial error.” Id. An appellate court's duty is to
review the instructions as a whole, and, if taken in their entirety, the instructions fairly and
correctly state the law applicable to the evidence presented at trial, reversible error will
not be found premised upon the possibility that the jury may have been misled. Id.{¶ 48} Turning first to Portis’s contention that a jury may not be instructed on
complicity if the charging instrument does not contain such a charge, we note that this
argument was rejected in State v. Young, 2d Dist. Greene No. 2019-CA-18, 2020-Ohio-
1044, wherein we stated:
The complicity statute, codified at R.C. 2923.03(F), provides:
“[w]hoever violates this section is guilty of complicity in the commission of
an offense, and shall be prosecuted and punished as if he were a principal
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offender.” In State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840
N.E.2d 151, the Ohio Supreme Court held that R.C. 2923.03(F) allows the
State to charge complicity in terms of the complicity statute or in terms of
the principal offense. Id. at ¶ 181. The court further held that R.C.
2923.03(F) “adequately notifies defendants that the jury may be instructed
on complicity, even when the charge is drawn in terms of the principal
offense.” Id. at ¶ 178-184, citing State v. Keenan, 81 Ohio St.3d 133, 151,
689 N.E.2d 929 (1998), citing Hill v. Perini, 788 F.2d 406, 407-408 (6th
Cir.1986). “Thus, a defendant charged with an offense may be convicted
of that offense upon proof that he was complicit in its commission, even
though the indictment is ‘stated * * * in terms of the principal offense’ and
does not mention complicity.” State v. Herring, 94 Ohio St.3d 246, 251,
752 N.E.2d 940 (2002).
Id. at ¶ 8.
{¶ 49} We next address Portis’s assertion that the State failed to present evidence
to support its request for a complicity instruction. Portis argues “the State did not provide
any evidence of what, if any, part that Portis had in the commission of the offenses, nor
how he assisted or facilitated, or promoted its accomplishment. The State could not
prove that there was another person involved to prove that Portis assisted that person.
Without a principal offender, there is no complicity.”
{¶ 50} During Smith’s testimony on direct examination, the following colloquy took
place:
Q: Was it you or [Coleman] was [sic] struck first?
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A: I don’t know, I – we both was [sic] struck. It was – it was – it was as if
it was two of them instead of one, instead of just one.
Q: So you think there were two people doing it?
A: I’m – I’m thinking it was, but I didn’t see but one; and that was [Portis].
The other person; I didn’t see the other person. By that time, it was so dark
in there.
Tr. p. 181.
{¶ 51} During his cross-examination of Smith, defense counsel elicited the
following:
Q: Now, once you’re down in the basement, you said you only saw the
Defendant, right: You didn’t see anyone else; is that right?
A: No, I didn’t see no one else.
Q: Okay. But you said you felt like there could’ve been a second person?
A: Yeah. It could’ve been somebody else with him.
Q: Okay. And why do you think that?
A: Because I was being, you know, chopped in the head so much. * * *
Q: So you were being hit a lot of times?
A: Yeah, a lot of times.
Q: And you thought there could’ve been more than one person doing it?
A: Yeah, I thought it could’ve been more than one.
Q: Okay. But you did see the Defendant down in the basement, right?
[Portis]?
A: Oh, yes.
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Tr. p. 184-185.
{¶ 52} The testimony elicited from Smith indicated the following: (1) he observed
Portis turn off the string light in the basement just seconds before the attack commenced;
(2) he was not able to confirm that Portis was the person who was hitting him; (3) he was
being hit so many times he thought there might be a second person involved in the attack;
but (4) he did not observe a second person.
{¶ 53} In our view, Smith’s testimony allowed for the possibility that a second
person was involved in the attack. Thus, we cannot say the trial court abused its
discretion in instructing the jury on complicity.
{¶ 54} The second assignment of error is overruled.
IV. Prosecutorial Misconduct
{¶ 55} The third assignment of error states as follows:
THE RECORD DEMONSTRATES PROSECUTORIAL MISCONDUCT
OCCURRED DURING THE TRIAL.
{¶ 56} Portis asserts the prosecutor acted improperly during trial. Specifically, he
claims the prosecutor improperly changed the theory of the case and requested a jury
instruction on complicity. He further claims the prosecutor asked leading questions in
order to establish the identity of the assailant. Finally, Portis faults the prosecutor for
“having Portis acknowledge the existence of a warrant [to] justify [sic] an illegal stop,
arguing that [Portis’s] absence and flight from the police meant he was guilty[.]”
{¶ 57} At the outset, we note Portis did not object to any of the alleged misconduct
except for the State’s request for the complicity jury instruction. Therefore, he must
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demonstrate plain error regarding the remaining alleged errors. State v. Pickens, 141
Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 109. To constitute plain error, an
error must be an obvious defect that would clearly, but for the error, have resulted in a
different outcome at trial. State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12
N.E.3d 1112, ¶ 177, quoting State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
{¶ 58} Given our resolution of Portis’s assignment of error regarding the requested
complicity instruction, we conclude that he has failed to demonstrate prosecutorial
misconduct on this basis.
{¶ 59} We next note that Portis has failed to direct our attention to the portions of
the record which demonstrate his claim that the State asked leading questions in order to
establish his identity as the assailant. See App.R. 16(A)(3). Regardless, we have
reviewed the entire trial transcript and cannot discern any improper or leading questions
asked by the State concerning Portis’s identification as the assailant.
{¶ 60} Next, Portis posits the prosecutor improperly caused him to acknowledge
the existence of a prior warrant for his arrest. We find this assertion lacks merit, as this
information was elicited during Portis’s direct examination by defense counsel in order to
suggest that he was fleeing the police because of the warrant, as opposed to the attacks
upon Smith and Coleman.
{¶ 61} Finally, Portis contends the prosecutor improperly argued that the jury could
infer guilt from the fact that Portis left the scene of the attack and later fled from the police.
{¶ 62} “[I]t has been ‘universally conceded that the fact of [an] accused's flight,
escape from custody, resistance to arrest, concealment, assumption of a false name, and
related conduct are admissible as evidence of consciousness of guilt, and thus of guilt
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itself.’ ” State v. Wood, 2d Dist. Clark No. 2010-CA-42, 2011-Ohio-2314, ¶ 30 quoting
State v. Stevens, 2d Dist. Montgomery No. 16509, 1998 WL 151107, *7 (Apr. 3, 1998).
{¶ 63} Here, the evidence demonstrated that Portis left the residence immediately
after the commission of the offenses, and approximately 12 hours later, he attempted to
elude the police. Although Portis claimed he fled because he had an outstanding warrant
and knew he would go to jail on that warrant if he were caught, the jury was free to
disregard this testimony and, instead, conclude he fled because of the attack on Smith
and Coleman.
{¶ 64} From our review of the record, we conclude that Portis has failed to
demonstrate prosecutorial misconduct. Therefore, the third assignment of error is
overruled.
V. Cumulative Error
{¶ 65} Portis’s fourth assignment of error states:
PORTIS WAS DENIED HIS RIGHT TO A FAIR TRIAL DUE TO
CUMULATIVE ERROR.
{¶ 66} Portis claims he was deprived of a fair trial due to cumulative error.
{¶ 67} The Supreme Court of Ohio has recognized that multiple errors, when
aggregated, may violate a defendant's right to a fair trial, even when those errors are
determined to be harmless when separately considered. State v. DeMarco, 31 Ohio
St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. “To find cumulative
error, we first must find multiple errors committed at trial, and secondly, we must conclude
that a reasonable probability exists that the outcome of the trial would have been different
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but for the combination of the harmless errors.” State v. Hartman, 2016-Ohio-2883, 64
N.E.3d 519, ¶ 61 (2d Dist.), citing State v. Madrigal, 87 Ohio St.3d 378, 398, 721 N.E.2d
52 (2000).
{¶ 68} Because we have found no error, we obviously cannot make a finding of
cumulative error.
{¶ 69} Portis’s fourth assignment of error is overruled.
VI. Conclusion
{¶ 70} All of Portis’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
.............
HALL, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Johnna M. Shia
Hon. Susan D. Solle