State v. Gervin

[Cite as State v. Gervin, 2016-Ohio-8399.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-15-52
v.
ROBERT GERVIN AKA OPINION
GREGORY GERVIN,
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 15-CR-252
Judgment Affirmed
Date of Decision: December 27, 2016
APPEARANCES:
Robert C. Nemo for Appellant
Kevin P. Collins for Appellee
Case No. 9-15-52
ROGERS, J.
{¶1} Defendant-Appellant, Robert Gervin, appeals the judgment of the Court
of Common Pleas of Marion County convicting him of one count of improperly
discharging a firearm at or into a habitation with a specification, two counts of
aggravated arson, and one count of felonious assault with a specification and
sentencing him to a total of 18 years in prison. On appeal, Gervin argues that the
trial court erred by depriving him of his constitutional right to a fair trial and an
appropriate sentence and entering convictions that were against the manifest weight
of the evidence. Gervin also argues that he was denied effective assistance of
counsel. For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On June 19, 2015, the Marion County Grand Jury returned a nine-count
indictment against Gervin, charging him with six counts of felonious assault with a
firearm specification in violation of R.C. 2903.11(A)(2), 2929.14(D), and 2941.145,
all felonies of the second degree; one count of improperly discharging a firearm at
or into a habitation with a firearm specification in violation of R.C. 2923.161(A),
2929.14(D), and 2941.145, a felony of the second degree; and two counts of
aggravated arson in violation of R.C. 2909.02(A)(1), both felonies of the first
degree. Gervin entered pleas of not guilty to all charges.
{¶3} On July 16, 2015, the Marion County Grand Jury returned a
“Superceding Joint Indictment” against Gervin and Cordarius Jones, charging each
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co-defendant with two counts of improperly discharging a firearm at or into a
habitation with a firearm specification in violation of R.C. 2923.161(A),
2929.14(D), and 2941.145, both felonies of the second degree; two counts of
aggravated arson in violation of R.C. 2909.02(A)(1), felonies of the first degree;
two counts of aggravated arson in violation of R.C. 2909.02(A)(2), felonies of the
second degree; and three counts of felonious assault with a firearm specification in
violation of R.C. 2903.11(A)(2), 2929.14(D), and 2941.145, all felonies of the
second degree. Gervin entered pleas of not guilty to all charges.
{¶4} On October 21, 2015, Gervin filed a motion to sever his case from
Jones’s case.1
{¶5} The matter proceeded to jury trial, which took place from November 3
through November 6, 2015. Prior to voir dire, and outside the presence of the
potential jury, both parties and the trial court discussed a newspaper article
regarding Jones’s case. The article included that Jones pleaded guilty to certain
charges. The court acknowledged the potential problem that this could cause with
the jury and stated, “it’s gonna be appropriate to inquire of the jury whose [sic] read
the paper this morning, which I assume counsel would do. If it’s necessary to
question any jurors outside the presence of the other jurors, you know, on those
issues, that’s fine, we can do that.” Trial Tr., p. 12.
1
Although no formal decision was ever filed by the trial court, we note that the trial consisted of only charges
filed against Gervin.
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{¶6} During voir dire, the trial court told the potential jury that charges
against Jones would be addressed in a separate hearing and that this trial was solely
for the purpose of determining Gervin’s charges. Later, one of the potential jurors
said “I do have a problem with the Defendant’s supposed accomplice plead guilty -
-[.]” Id. at p. 42. The trial court immediately informed the potential jury to disregard
the comment. The juror continued, “I read the paper, Your Honor.” Id. at p. 43.
The court then proceeded to explain to the potential jury why they should disregard
anything they read in the newspaper about this case. A couple of other potential
jurors indicated that they had seen the article in the newspaper as well. The
outspoken juror indicated that he was on the fence of whether he could remain
impartial, but was later dismissed from serving due to a medical condition.
{¶7} Virginia Dawson was the first witness to testify on behalf of the State.
Dawson testified that she and her husband, William Dawson (“William”), lived at
412 East Farming Street in Marion, Ohio. She stated that during the early morning
hours of May 31, 2015, she was awoken by the sound of glass breaking in her
bedroom. She explained that she saw something repeatedly hit the glass window
until it broke. She continued that after the glass broke, she noticed a fire on the
window sill. She added that the fire was contained to the outside portion of the
window because the storm window was in the up position, which blocked the blaze
from igniting the curtain and other parts of the inside.
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{¶8} Dawson testified that she screamed and pulled William out of bed. She
admitted that she did not hear any gunshots. She stated that William pushed her off
the bed and she remained on the floor until she was able to call for help while
William put out the fire. At this time, the State played the 9-1-1 call placed by
Dawson for the jury, which was later admitted into evidence. Dawson identified
several photographs of her home, which showed the damage caused by the fire.
During this time, the prosecutor began to project the photographs on a screen so the
jury could view the photos, which prompted the court to interrupt and state “First of
all, is there any objection to those - - is there any objection to him displaying the
photographs at this point?” Id. at p. 95. Counsel for Gervin did not object.
{¶9} Dawson also identified a photograph of her house that showed bullet
holes, which she stated were not there prior to May 31, 2015. She stated that one of
the bullets was found lodged in her refrigerator, which was later removed by the fire
department. Dawson testified that two bullet holes were found in her bed. She
explained that after investigators had left her house she found a bullet in her
comforter. She added that she contacted the police and someone came out to pick
up the bullet.
{¶10} On cross-examination, Dawson admitted that she was Anna Harris’s
(“Anna”) grandmother. She testified that Anna was in town that weekend, but was
not at the house when this occurred. Dawson stated that the fire was caused by
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something that was thrown through the window by someone wearing a white
hoodie, which she believed was called a Molly cocktail. She explained that she
could not tell if the individual was a man or a woman or if the individual was white
or black.
{¶11} William was the next witness to testify on behalf of the State.2
William testified that he was awakened around 6:00 am on May 31, 2015 by his
wife who was screaming about a fire in the room. He stated that he looked and saw
the fire, then he heard a couple of gunshots. He added that he eventually got up and
grabbed a fire extinguisher and proceeded to put out the fire. William estimated
that the damage caused by the fire exceeded $1,000.
{¶12} On cross-examination, William clarified that he awoke to the sound of
his wife screaming, saw the fire, and then heard three gunshots. He also admitted
that he did not see the person who threw the Molotov cocktail. He testified that he
did not know Gervin and had not seen him before the day of trial.
{¶13} After cross-examination, the court asked a series of questions, which
William answered. The court also asked a series of questions that were suggested
by the jury. In response to this line of questioning, William testified that the
gunshots occurred within approximately 10 seconds of one another.
2
William was asked by the prosecutor to identify and testify as to several of the same photographs that his
wife had testified to, and therefore we have chosen to omit those portions of his testimony.
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{¶14} Officer Steven Luoma of the Marion City Police Department was the
next witness to testify. Officer Luoma testified that he was a patrol officer with the
department and was working third shift on May 31, 2015. He stated that he was
dispatched to 412 East Farming Street in Marion at 6:13 a.m. in response to a shots
fired call. At the scene, Officer Luoma testified that he spoke with Anna and she
told him that the suspect was a black male wearing a white hoodie. At this time, the
court interrupted, and the following exchange occurred between the trial court and
defense counsel:
Court: Let’s - - is there any concern about - -
Counsel: I was gonna see where that was going.
Court: I don’t know where it’s going. I’m just - - if there’s no
objection he can proceed.
Counsel: Well, I’ll just go ahead and let him continue and then - -
Court: Okay.
Prosecutor: I’ll withdraw that portion of the question for now,
Judge.
Id. at p. 133-134.
{¶15} Officer Luoma testified that he entered the home, which was still
covered in smoke, and found the Molotov cocktail in the bedroom window. He
described it as “an oil can with white rag that was hanging out of it.” Id. at p. 135.
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He stated that he and another officer went outside and located three bullet casings
near to each other.
{¶16} One by one, Officer Luoma authenticated and identified several
photographs of the scene that he took the day of the fire. Each photograph was
published for the jury as Officer Luoma described their contents. In one of the
photographs, Officer Luoma explained that the oil container was wrapped in red
tape.
{¶17} Officer Luoma identified the Molotov cocktail, which he retrieved
from the window. It was later admitted into evidence. He added that the container
appeared to be a Formula motor oil container, which was black with a green label.
He concluded by stating that the wick was attached to the container by red tape.
{¶18} On cross-examination, Officer Luoma testified that the contents of the
container had spilled out and appeared to contain gasoline. Officer Luoma
explained that after he collected any evidence in this case he cataloged it and placed
it in a secure evidence locker at the police department.
{¶19} After cross-examination, the court asked Officer Luoma a series of
questions that were suggested by the jury.
{¶20} Lieutenant James Fitsko of the Marion Police Department was the next
witness to testify. Lieutenant Fitsko testified that he was working third shift on May
31, 2015 and was dispatched to 412 East Farming Street early that next morning.
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He stated that he and Officer Luoma located and collected the three shell casings in
the yard. He added that he collected a bullet from the refrigerator and a bullet that
was located in the bedroom. He explained that he did not locate the bullet in the
bedroom, but came back to collect it after Dawson found it. He testified about the
chain of custody of the shell casings and other pieces of evidence. Lieutenant Fitsko
stated that the Molotov cocktail was still smoldering when he arrived at the property.
{¶21} After a brief cross-examination and re-direct-examination, the court
asked a series of questions to Lieutenant Fitsko that were suggested by the jury.
{¶22} Joel Thompson was the next witness to testify on behalf of the State.
Thompson testified that he lived at 289 Maple Street and was living there on May
31, 2015. On that morning, Thompson stated that he was alerted by his nephews
that there was a fire in the house. He added that he and his girlfriend were able to
put the fire out, but there was still a lot of smoke in the house. Thompson described
what he thought was a bomb that was the source of the fire. Thompson identified
several photographs of his house, which were later admitted into evidence. The
photographs showed the damage caused by the fire, including a broken window
through which the bomb was thrown. He admitted that he did not know Gervin.
{¶23} On cross-examination, Thompson stated that there was damage to the
kitchen, which required the refrigerator to be replaced along with the floor, and the
walls needed to be repainted.
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{¶24} Jasmine Floyd was the next witness to testify. Floyd testified that she
lived at 291 Maple Street in Marion, which is half of a duplex (the other half, 289
Maple, was occupied by Thompson), and lived there on May 31, 2015. Floyd stated
that she was awakened that morning by Thompson’s girlfriend, Geneva Lee. She
explained that she was unaware of the fire in the other half of the duplex until Lee
came over to her half of the duplex. She added that there were bullet holes in her
wall. Floyd identified several photographs of her home depicting the damage,
which were later admitted into evidence. Floyd testified that she did not know either
Gervin or Jones.
{¶25} Officer Richard Wheeler of the Marion City Police Department was
the next witness to testify on behalf of the State. Officer Wheeler testified that he
was working third shift on May 31, 2015 and was dispatched to 412 East Farming
Street in Marion at approximately 6:00 a.m. After being on the scene for a few
minutes, Officer Wheeler stated that he was dispatched to a possible shooting at 289
Maple Street.
{¶26} When he arrived at 289 Maple Street, Officer Wheeler found that there
was smoke inside the home and located what appeared to be a homemade Molotov
cocktail in the kitchen. He also located a brick or cinder block on the floor as well.
Officer Wheeler explained that he located the entry point of the Molotov cocktail,
which was a broken window. After walking the scene, Officer Wheeler testified
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that he took down several witness statements and accompanied Lieutenant Fitsko
who took photographs of the scene. He identified each photograph, which were
later admitted into evidence.
{¶27} As the prosecutor was having Officer Wheeler identify each
photograph one at a time, the court interjected,
The testimony would be a lot easier for the jury if you just give ‘em
all the photographs, ask him if all the ones you’re gonna use, as [sic]
him if they’re a fair and accurate representation of what the scene
appeared on that day, then you’ve laid your foundation, we can
display the photograph as he’s explaining the photograph instead of
having the prior photograph displayed while he’s explaining the next
photograph. It would move quicker and I think it would be more
understandable for the jury.
Id. at p. 228. The prosecutor did as he was told and every photograph was
collectively identified by Officer Wheeler.
{¶28} One of the photographs depicted the Molotov cocktail, which Officer
Wheeler described as “the suspected Molotov cocktail, you got the red tape around
it, the oil jug, and then the rag.” Id. at p. 233. Officer Wheeler also identified a
shell casing, which he collected at the scene. He then explained how the chain of
custody was conducted on the casing.
{¶29} On cross-examination, Officer Wheeler admitted that when he was
initially dispatched that the suspect was one black male wearing a white shirt.
{¶30} After cross-examination, the trial court questioned Officer Wheeler
and also asked a series of questions that were suggested by the jury.
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{¶31} Victor Wilson was the next witness to testify. Wilson testified that he
lived with Floyd at 291 Maple Street on May 31, 2015. He stated that his two
children as well as two of hers lived with the couple. He added that the children
were home during the shooting.
{¶32} Phillip Pickett was the next witness to testify on behalf of the State.
Pickett testified that he lived at 327 Silver Street in Marion and did so on May 31,
2015. Pickett stated that he returned from work early in the morning, sat down in
the living room, and heard two to three gunshots. He explained that he ran upstairs
and looked out a window and saw two black males running across his neighbor’s
yard. Pickett added that he went outside and saw a white Neon take off from the
scene.
{¶33} Pickett explained that his house was around the corner from Maple
Street and that he could see 289/291 Maple Street from his house. He concluded by
telling the jury that he told his fiancée to call 9-1-1 and ran over to the fire and told
everyone to get out of the house.
{¶34} On cross-examination, Pickett explained that he lost sight of the males
when he ran out of the house, but then saw the white Neon take off down the street.
He clarified that he was able to determine the skin color of the individuals because
they had their white shirts over their heads, which exposed their bare skin.
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{¶35} After cross-examination concluded, the trial court asked Pickett a
series of questions. The court also asked Pickett a series of questions suggested by
the jury. Pickett added that he could not see any of the occupants of the white Neon.
{¶36} Lieutenant Darren Neuenschwander of the Marion City Fire
Department was the next witness to testify. Lieutenant Neuenschwander testified
that he was working on May 31, 2015 and received a call to go to 412 East Farming
Street. When he arrived, he stated that police were at the scene conducting their
investigation. After checking out the scene and observing the Molotov cocktail,
Lieutenant Neuenschwander testified that he was dispatched to another fire call on
Maple Street.
{¶37} Once at Maple, he stated that Captain Fetter and he walked to the rear
of the building and found an oil container with red duct tape and white cloth, which
appeared similar to the Molotov cocktail found at 412 East Farming Street.
{¶38} Lieutenant Neuenschwander testified that he was primarily
responsible for the control and investigation of 412 East Farming Street while
Captain Fetter handled the Maple Street fire. He explained that he took several
photographs of the scene at 412 East Farming Street, which he later identified. They
were ultimately admitted into evidence. He also identified several photographs he
took at the Certified Gas Station on East Center Street in Marion (“Certified”). As
he began to testify, the court interrupted, “I think we’re gonna tread into hearsay on
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that question. I don’t think it’s material why. I think he can testify what he did
there.” Id. at p. 277. Lieutenant Neuenschwander began to answer one of the
prosecutor’s questions, when the court interrupted again, “The question was what
did you do there. Not what information you obtained.” Id.
{¶39} Lieutenant Neuenschwander stated that they obtained a control sample
of gasoline from the gas station so that they could compare it to the sample found at
the crime scene. He also indicated that he took photographs of the display stand
where oil containers identical to those found at the crime scenes were sold. These
photographs were admitted into evidence. He explained that it was important that
there were two oil containers used in the crimes and that the photograph showed
two oil containers missing. He testified that he got samples from the oil container
found at the East Farming Street. He explained that he placed the different samples
in evidence containers and mailed them to the State Fire Marshal’s Office for
testing. He went on to explain the process by which they transport the evidence to
the Fire Marshal’s Office.
{¶40} He identified exhibits, which were the samples taken from the gas
station and the oil container found at 412 East Farming Street. Both samples
contained the proper chain of evidence markings from each department that handled
the evidence.
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{¶41} The court proceeded to ask a brief series of questions at the conclusion
of Lieutenant Neuenschwander’s testimony.
{¶42} Captain Adam Fetter of the Marion Fire Department was the next
witness to testify on behalf of the State. Captain Fetter testified that he was working
on May 31, 2015 when he was dispatched to Maple Street for a possible fire. He
was also informed of a possible shooting in the area and was advised to be cautious.
He explained that he examined the scene of the fire and found what appeared to be
a homemade Molotov cocktail in the kitchen. He identified several photographs he
took while at the Maple Street address, which were later admitted into evidence.
{¶43} Captain Fetter explained that he collected several pieces of evidence
from the crime scene, including the Molotov cocktail, the wick from the Molotov
cocktail, a liquid substance removed from the oil container, and a liquid substance
that was located on the kitchen floor. While explaining his office’s procedure on
shipping evidence to the Fire Marshal’s Office, Captain Fetter stated that after the
evidence is properly secured they ship the evidence via a company, the Door Guys.
{¶44} Captain Fetter identified the actual Molotov cocktail obtained from the
Maple Street address and the chain of custody markings. He did the same thing with
the wicking fabric and the liquid substances from the oil container found at Maple
Street and the kitchen floor. The exhibits were later admitted into evidence. While
discussing these exhibits, the court interjected, “Did [Captain Fetter] cover State’s
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Exhibit 23 also? * * * So it’s not different than what it’s labeled on the list.” Id. at
p. 302.
{¶45} Captain Fetter was asked specifically about whether he broke the seal
of the evidence bags containing the liquid samples taken from both 412 East
Farming Street and Certified prior to trial, and Captain Fetter answered in the
affirmative because he wanted to verify the bag’s contents.
{¶46} On cross-examination, Captain Fetter estimated that the damage at 289
Maple Street was a couple thousand dollars. He clarified that he was asked to verify
the contents of the evidence bag, containing the East Farming and gas station
samples, prior to trial at the prosecutor’s office.
{¶47} Christa Rajendram was the next witness to testify on behalf of the
State. Rajendram testified that she worked for the State Fire Marshal’s Office in the
forensic laboratory and about her education and experience in her field.
Specifically, Rajendram stated that she extracts and analyzes fire debris for any
flammable liquid and can determine the contents of that liquid by performing a
chemical analysis.
{¶48} In regard to this case, Rajendram received two cases: one that
contained two liquids in two separate bottles from 412 East Farming and Certified;
and one that contained an oil container, a piece of fabric, and some liquid samples
from 289 Maple and Certified. Rajendram explained the procedure for marking the
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chain of custody and testified that it appeared in order. When Rajendram began to
testify about what tests she performed, the court interrupted and said
Can we - - we don’t have any testimony, first of all, you know - - you
have an expert opinion, you don’t have any testimony as to what it is
she was examining that relates to this case, just two items, six items.
Can we tie this to exhibits? Also get her qualified, make sure we’re
in agreement on that?
Id. at p. 313. Rajendram testified that she served as an expert witness in Ohio
regarding ignitable fluids and liquids. She was then accepted as an expert witness
in the field of analyzing ignitable fluids. The defense did not object.
{¶49} In the middle of direct-examination, the court interrupted again,
stating “Okay. Let’s - - you’ve identified items 1, 2, 3, 4, 5, and 6. Can you identify
them by exhibit number so that the record’s clear? * * * Let’s have the witness
testify about this.” Id. at p. 316. The court also had Rajendram clarify which State’s
exhibits corresponded to her submission forms.
{¶50} Rajendram testified that she performed a chemical analysis on each
exhibit. After explaining the scientific procedure behind the testing, Rajendram
explained that the results of the tests revealed that the liquid sample taken from 412
East Farming consisted of a petroleum based oil. Further, the sample taken from
the gas station consisted of gasoline. Regarding the samples taken from 289 Maple
Street, the liquid samples, oil container, and wicking fabric contained gasoline and
petroleum based oil. She added that the tests performed on the liquid samples taken
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from Certified revealed the substance was gasoline. Rajendram was further able to
determine that the gasoline found in the oil container taken from 289 Maple Street
and the gasoline taken from Certified contained similar products. She explained
that the composition of gasoline varies depending on the refinery or how the
gasoline was blended. Rajendram confirmed that all of her conclusions were based
on a reasonable degree of scientific certainty.
{¶51} On cross-examination, Rajendram explained the scientific process by
which she compares gasoline samples to determine if they are likely from the same
source in greater detail. She added that she was unable to compare the sample taken
from the kitchen floor at 289 Maple Street because the volatile portion had
evaporated.
{¶52} At the conclusion of cross-examination, the court asked Rajendram a
series of questions. Specifically, the court asked Rajendram about her submission
sheets, whether they were kept in the ordinary course of business at the State Fire
Marshal’s Office, whether they were relied upon in the operation of that business,
whether she relied upon those documents, whether they were prepared by someone
at or near the time of the events reflected upon in the document, and whether the
sheets were routine. She answered yes to each question. The court also asked
Rajendram if the conclusions in her reports were reached to a reasonable degree of
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scientific certainty, which she stated they were. Then, the court continued its
lengthy examination of Rajendram.
{¶53} Misty Cabanas was the next witness to testify on behalf of the State.
Cabanas testified that she worked at Certified and served as an assistant manager.
Cabanas stated that there are several security cameras that cover the store and that
the feeds are recorded onto their system. Cabanas identified security footage from
the early morning hours of May 31, 2015. The footage was played for the jury and,
ultimately, admitted into evidence. Cabanas described what was occurring in the
video while it played. At approximately 5:26 a.m., a white vehicle pulled into
Certified. A black male exited the car and entered the store a few moments later.
While the man was in the store, he walked around to the back where the automotive
section was located, including motor oil. The man eventually purchased some oil,
then exited the store and got back into the white car. Soon after, the vehicle pulled
out, went to a pump, and the same man re-entered the store to purchase gasoline.
He proceeded to leave the store again and returned to his car only to re-enter the
store a third time and purchase a bottle of water. As he exited, the video showed
that he was pouring the water out of the bottle as he was walking.
{¶54} On cross-examination, Cabanas stated that she had never seen Gervin
before and was not working when the video was taken.
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{¶55} Lori Hummel was the next witness to testify. Hummel testified that
she worked at Certified as a cashier and was working on May 31, 2015. She recalled
that on that morning a black man walked into the store on three separate occasions.
First, the man purchased two quarts of oil. Second, the man purchased $10 of
gasoline. Third, the man purchased a bottle of water. Hummel identified copies of
receipts that showed the man’s purchases, which were later admitted into evidence
after the foundation for business records was laid.
{¶56} On cross-examination, Hummel believed she could possibly recognize
the black man if she saw him again, but stated that the man was not Gervin. She
added that she had never seen Gervin before.
{¶57} Billie Hawkins was the next witness to testify. Hawkins testified that
she lived with Pickett at 237 Silver Street and that she was there on May 31, 2015.
She explained that on that morning Pickett had just come home from work and the
two heard two to three gunshots. Hawkins stated that she looked out the door and
saw two black males running from the scene. She described the men as one being
taller and the other shorter. One of the men was wearing a white t-shirt up over his
head, which allowed Hawkins to see his skin color. She testified that she eventually
called 9-1-1. She identified the audio recording of the call, which was played for
the jury and later admitted into evidence.
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{¶58} On cross-examination, Hawkins stated that she saw a four-door, white
Neon with a spoiler on the back take off from the scene. She explained that she
could not see who was driving the car, but did see the two men enter the car.
{¶59} Anna was the next witness to testify on behalf of the State. Anna
stated that she lived in Columbus, but has stayed at 412 East Farming Street, which
is her grandparents’ house, in the past. Anna testified that she remembered her
grandparents’ house had a fire, but could not remember the exact date. She stated
that she was in Marion that weekend.
{¶60} Anna testified that the night before the fire she had gotten into an
argument with Sabreena Brown, who she had known for some time. She stated that
she went to Bottom’s Up in Marion on May 30, 2015. She claimed that she never
saw Brown at Bottom’s Up and that no altercation occurred between the two of them
in the bar’s parking lot. She also denied spitting in Brown’s face.
{¶61} After leaving Bottom’s Up, Anna testified that she and some friends
went to a party located at a house on Pearl Street in Marion. She stated that she saw
Brown at the party and the two of them got into a physical altercation. She explained
that other people got involved in the fight and that a man had hit her during the fight.
She identified Gervin as the man that hit her, but she did not know of his name at
the time of the fight. She testified that she learned that Gervin was trying to help
Brown because Anna was winning the fight.
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{¶62} Anna stated that Brown had a white Neon car with a Georgia license
plate. She added that she saw the car that night at the Bottom’s Up. After leaving
the party, Anna said she and her friends went to one of their houses. She explained
that she remained there until her mother called her about the fire. Anna testified
that she arrived at her grandparents’ house and told a police officer to look for
Brown’s car as she felt Brown had something to do with the crime.
{¶63} Anna admitted that she was convicted of robbery and was currently on
probation from that conviction.
{¶64} At the conclusion of Anna’s testimony, the court asked a series of
questions that were suggested by the jury. In answering one of the questions, Anna
stated that the fight occurred because Brown was running her mouth about Anna
and that Brown had dumped her drink on Anna.
{¶65} Officer Jamie Ralston of the Marion Police Department was the next
witness to testify on behalf of the State. Officer Ralston testified that he was
working on the night of May 30 and the morning of May 31, 2015. He stated that
he was positioned outside of the Bottom’s Up at approximately 2:30 a.m. He
explained that he was positioned there to help decrease the likelihood of any
problems with the patrons leaving the bar.
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{¶66} During his time outside of the bar, there was a small altercation so
Officer Ralston took down some license plates of the cars nearby as a precaution.
One of the cars was a small white car with a Georgia license plate.
{¶67} On cross-examination, Officer Ralston clarified that he was unaware
if the white car with the Georgia plate was one of the vehicles involved in the
altercation.
{¶68} Zoie Clark was the next witness to testify. Clark testified that she
knew several individuals involved in this case. Specifically, she knew Anna,
Brown, Gervin, Jones, and B.M., a minor. She stated that Jones was also known as
“Coco” and Gervin was also known as “Buddha.” She testified that she lived on
Pearl Street on May 30 and May 31, 2015. She added that Jones stayed with her at
that address some times.
{¶69} Clark then began to describe the series of events that occurred on May
30 and May 31, 2015. According to Clark, she had driven back to the Pearl Street
address and several people were on the porch, including Brown, Gervin, and Jones.
B.M. arrived later. Clark testified that Brown was upset with Anna. When Anna
showed up at the address that morning, Clark stated that Anna was accompanied by
Carly Alexander, Andrew White, and Destiny Thomas. Clark explained that shortly
after Anna arrived Anna and Brown got into a fight. She added that during the fight
Thomas and Alexander both got hit and that Jones and Gervin were the ones who
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hit them, but she could not remember who hit which person. Clark stated that after
the fight ended Anna and her friends left. Later on, Clark testified that Brown, B.M.,
Gervin, and Jones left in Brown’s white Dodge Neon.
{¶70} Clark stated that she saw Gervin with a gun that night. She described
it as “a black gun with a beam on it.”3 Id. at p. 403.
{¶71} On cross-examination, Clark testified that she had known Brown for
nine years. She described their relationship as friendly, but added that they were
not on the best of terms on May 30 and May 31, 2015. Clark explained that Mikayla
Smith owned the house on Pearl Street, but said that she and several others stayed
there, including Quinton Anderson and Jones, occasionally. She stated that she and
Jones were in a sexual relationship at the time of the fires. She added that she had
only known him for about a month and a half before May 2015. Clark testified that
she has known B.M. for about four or five years and that they are very close friends.
She stated that she only really knew of Anna and Gervin from the streets, although
she admitted that Gervin was around as much as Jones once she and Jones began
their relationship.
{¶72} Clark testified that she was mad with Brown because she believed
Brown was having a sexual relationship with Jones, when in fact Clark learned that
Brown was with Gervin. When she got back to the house after going to the Bottom’s
3
She later clarified that “beam” meant a laser sight.
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Up, Clark explained that Brown was irate because Brown said Anna spit on her over
a pair of shoes. During this time, she overheard Brown say “I got spit on and I want
to shoot this bitch[.]” Id. at p. 410. She also testified that she heard Jones say
something similar to “I’ll take care of it,” but could not remember his exact words.
{¶73} Clark stated that she never saw Gervin hit Anna during the fight at the
house. She reiterated that Gervin was the person in possession of the gun. She
indicated that Gervin kept it tucked into his waist. She added that she had never
seen Jones with a gun.
{¶74} On re-direct-examination, Clark stated that no one involved in this
case considers her a friend anymore because she testified. After this answer, the
court asked Clark a series of questions that were suggested by the jury.
{¶75} On re-cross-examination, Clark clarified that Brown said “I want to
shoot that bitch” before Anna came over to the house.
{¶76} Sabreena Brown was the next witness to testify on behalf of the State.
Brown testified that she knew Gervin and that his nickname was Buddha. She also
stated that she knew Jones and his nickname, Coco. She testified that after meeting
Gervin the two engaged in a sexual relationship. Brown stated that she and Anna
used to be friends back when the two were in school.
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{¶77} Brown said that Anna grew mad with her when she threw a pair of
shoes that were in her car into the trash. Brown believed that the shoes belonged to
Clark, when they, in fact, belonged to Anna.
{¶78} Brown said that she was with Gervin at approximately 3:00 p.m. on
May 30, 2015. She explained that she picked Gervin and B.M. up and then went to
Buffalo Wild Wings for food. The trio eventually went over to the house on Pearl
Street and stayed there until it was time to go to the bar. She stated that she, Jones,
and Gervin went to the bar at approximately 12:30 a.m. Brown testified that they
took her car, a white 2002 Dodge Neon with Georgia plates, to the bar. She
explained that the car belonged to her son’s father who bought her the car when she
lived in Georgia.
{¶79} Brown testified that she stayed at the bar until it closed and then
returned to her car and waited for Jones and Gervin. While she was sitting in her
car, she stated Anna walked past and spit in her face.4 She explained that she got
out of her car started yelling at Anna until the police came and asked if there was a
problem. Brown told the officer that there was no problem and then went back to
her car. Once Jones and Gervin returned, she stated that they went back to Pearl
Street.
4
She initially did not know who spit in her face, but then realized it was Anna.
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{¶80} Brown explained that she saw Anna posted on Facebook where Anna
was talking trash, bragging about spitting in Brown’s face, and tagged Brown in the
post. Brown stated that this made her angry and, when Anna showed up, Brown
said let her in so that she could fight Anna.
{¶81} Brown testified that they all remained at the house for about 30
minutes after Anna and her friends had left. Then, she explained that she, B.M.,
Jones, and Gervin got into her car and left. She stated that later on Jones and Gervin
asked her if she was with “the cause.” Brown testified that Jones was driving while
she was behind him in back seat next to Gervin who sat behind B.M. who was in
the front passenger seat.
{¶82} Brown stated that they first stopped at Certified, where Jones
purchased gas, oil, and a bottle of water.5 While in the car, Brown testified that
Gervin asked her if there was any tape in the car and she handed him some red tape
that she had purchased to cover her broken brake light. Brown identified State’s
Exhibit 30, which was the red duct tape she gave to Gervin, and it was eventually
admitted into evidence. Brown explained that she watched Gervin tape the oil
container and the water bottle together and indicated how he did it. She did not
recall if she witnessed Gervin use a shirt that was in her car. She added that Gervin
5
She also testified that the group stopped at a Duke gas station, but there was never any testimony as to when
they stopped at this station.
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Case No. 9-15-52
had a gun on his lap and said that Jones did not have a gun that night. She also
remembered that Jones was wearing a white shirt that evening.
{¶83} Brown testified that after they left Certified they drove by 412 East
Farming Street, where Anna’s grandparents lived. She explained that Jones parked
the car near Farming Street, but not on Farming Street. At that time, she stated that
Jones and Gervin got out of the car. Although she did not remember seeing Gervin
get out with his gun on him, she did not recall a gun in the car once Gervin left the
vehicle. She also remembered that the oil container was no longer in the car.
{¶84} Brown explained that while she and B.M. waited in the car they heard
gunshots, approximately four to six, nearby. She believed that they shot up Anna’s
grandparents’ house. She testified that Jones and Gervin returned to the car in a fast
walk, but not quite a run. Jones got back behind the wheel, and Gervin got in the
back seat next to Brown, and then they left.
{¶85} She testified that the foursome traveled to Fahey Street. Brown stated
that once they arrived, Jones parked the car and he and Gervin exited the car. She
added that after the men got out of the car she moved to the driver’s seat. Brown
testified that she drove around the block a few times until she heard approximately
three gunshots. Soon after the gunshots, Brown explained that Jones and Gervin
got into the back seat of the car and they left. Once Jones got back into the car,
Brown remembered that he said “that’s Vic’s house.” Id. at p. 445.
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{¶86} Brown testified that Gervin and Jones instructed her to drive to Blaine
where she parked the car at Mike McCall’s house. She identified several
photographs depicting her car parked on Blaine, which were later admitted into
evidence. One of the photographs depicted red duct tape that was similar to that
used in the Molotov cocktail.
{¶87} After deserting the car at McCall’s house, Brown explained that the
foursome was picked up by one of Gervin’s friends, Johnny.6 She testified that
Johnny drove a red truck/SUV. After Johnny picked them up, Brown stated that
they went back to Certified where someone purchased more oil. She added that the
group went back to her car on Blaine, but left the scene when they realized the police
were there. Brown testified that Johnny then took them to the Travelodge. The
foursome stayed at the hotel for approximately six hours and then returned to
Brown’s house. At one point while everyone was at the house, Jones and Johnny
left and were eventually pulled over and arrested.
{¶88} Brown stated that at approximately midnight on June 1, 2015 the
police busted down her door, found Gervin, and arrested him. She added that she
was also taken to the police station and admitted that she lied to the police officers.
She explained that she eventually told one of the detectives the truth once she was
subpoenaed to testify before the grand jury. She testified that she lied at first
6
She could not remember Johnny’s last name.
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because she was afraid of Gervin and the fact that they were in a relationship at the
time. She also admitted that she had a misdemeanor conviction for theft out of
Delaware County. She added that several people had called her a snitch because
she testified in this case.
{¶89} On cross-examination, Brown admitted that she was heavily
intoxicated, high on marijuana, and sleep deprived on May 31, 2015. But she
indicated that this fact did not impair her ability to recollect the night’s events. She
recanted her previous testimony and stated that she did not recall Jones saying “I’ll
take care of it.” She also stated that she was the one that told the group where
Anna’s grandparents lived, but claimed she did not tell Jones or Gervin to go to that
house.
{¶90} Brown testified that B.M. at one point asked what was going on and
B.M. was yelled at by Gervin to “shut up.”
{¶91} On re-direct-examination, Brown stated that while everyone was at the
Travelodge both Gervin and Jones stated that they “fucked up.”
{¶92} At the conclusion of Brown’s testimony, the trial was recessed for the
day. At this time, the State moved to dismiss Count 9 (felonious assault). After no
objection by the defense, the court dismissed Count 9.
{¶93} B.M. was the next witness to testify on behalf of the State. B.M.
testified that Brown and Gervin picked her up at her house at approximately 7:00
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p.m. on May 30, 2015. She stated that the trio went to Brown’s house, the
Travelodge, Buffalo Wild Wings, Gervin’s family’s house, and then the house on
Pearl Street. She explained that when the rest of the group went to the bar she went
back to the Travelodge.
{¶94} B.M. testified that around 2:00 a.m. on May 31, 2015 she and
Anderson returned to the house on Pearl Street. Once she got there, she stated that
the others had returned from the bar. She witnessed the fight break out between
Anna and Brown and saw a man hit Anna, but could not remember who it was. She
recalled that whoever hit Anna hit her pretty hard.
{¶95} After the fight ended, she stated that she, Brown, Jones, and Gervin
left the house in Brown’s white Neon. She explained that she sat in the front
passenger seat while Jones drove. Gervin sat behind her and Brown was behind
Jones. As they were in the car, B.M. remembered that one of the men asked her if
she was with “the cause,” but could not remember who asked her. She testified that
the group went to Certified. She added that the inside of the car smelled of gasoline
after going to Certified.
{¶96} Although she did not see what was going on in the back seat, B.M.
stated that she saw red duct tape in the passenger door and handed it to Brown. B.M.
added that she never saw Gervin with a gun. She testified that they drove around
until they came to East Farming Street where the others said Anna lived. She
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continued and said that Jones parked the car and he and Gervin exited the vehicle.
She explained that the two men ran out of the car. B.M. recalled that both men were
wearing white shirts. She did not remember if they were carrying anything with
them when they got out of the car.
{¶97} While she and Brown were in the car waiting for Gervin and Jones to
return, B.M. testified that she heard two or three gunshots. Soon after the gunshots,
B.M. explained that Gervin and Jones came running back to the car and sat in the
same seats as they were in before. She stated that they drove around until they
approached Fahey Street and Jones parked the car and the two men got out of the
car again. This time, B.M. explained that Brown moved to the driver seat.
{¶98} During this time, B.M. stated that she heard two gunshots. After the
gunshots, B.M. explained that Gervin and Jones ran back to the car and got into the
backseat. Once they got back into the car, B.M. added that she asked the group what
was going on and someone told her to shut up. She testified that they dropped the
car off at McCall’s house and were picked up by Johnny in a red Ford. She stated
that the group then went to one of Gervin’s family member’s house and then to the
Travelodge where she slept for a little while.
{¶99} B.M. testified that they eventually left the Travelodge and went to a
BP gas station on route 95 where Johnny got gas. She could not remember if the
gas was pumped into a container or the car. She recalled that they proceeded to
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drive back to Brown’s car, but left once they saw police on the scene. She explained
that the group had returned to Brown’s car so that they could blow it up. She added
that a discussion was had between a man and a woman about blowing up the car.
She testified that the group decided to go back to Brown’s house where everyone
went to bed. She added that she left before everyone else awoke.
{¶100} On cross-examination, B.M. admitted that she was intoxicated and
high on marijuana during the course of May 30 and May 31, 2015. She remembered
that Jones was the man who got out of the car at Certified and purchased the gas.
She added that Jones and Gervin asked Brown where Anna lived after stopping at
Certified. B.M. clarified that the group drove to Fahey Street because it was near
Maple Street. She also recalled that the discussion about blowing up the car
involved the men asking Brown if it was okay if they blew up her car.
{¶101} Detective Matt Baldridge of the Marion Police Department was the
next witness to testify on behalf of the State. Detective Baldridge testified that he
was working on May 31, 2015 and was dispatched to 289 Maple Street. As part of
his investigation, he stated that he drove around town to several gas stations to find
a similar oil container as that found at the scene of the crime. One of the gas stations
Detective Baldridge visited was Certified. He explained that he returned a few days
later and obtained security footage of the person buying the oil. He added that he
did the same thing at a BP gas station on Mount Vernon Avenue.
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Case No. 9-15-52
{¶102} Detective Troutman of the Marion Police Department was the next
witness to testify. Detective Troutman testified that he was working on May 31,
2015 and that he responded to a call at 289/291 Maple Street. He described his
duties, in regard to the investigation, as assisting in the collection of evidence. He
stated that he collected a bullet out of the kitchen and another one out of a wall. He
identified the bullet, which was marked as an exhibit and later admitted into
evidence, and testified to it and the chain of custody. He added that he was present
when Jones was arrested and stated that Jones was wearing a white t-shirt and blue
shorts.
{¶103} Johnny Witten was the next witness to testify on behalf of the State.
Witten testified that he got a call from someone he knew as “740” to pick 740 up at
approximately 6:30 a.m. on May 31, 2015. He explained that he came to know 740
by giving 740 rides home from the bars in exchange for cash. Witten stated that he
ultimately picked up a group of four people, two black males and two females, at
the location 740 specified. Witten testified that he took the group to the Travelodge
and then went back to his girlfriend’s house.
{¶104} Witten explained that he received another call from 740 to pick 740
up from the Travelodge. He testified that he picked up 740 and the other black male
and took them to an alley near Blaine. Before driving to Blaine, the other men told
Witten that they needed gas and oil for their car, which was on Blaine so Witten
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Case No. 9-15-52
stopped at a gas station. Witten explained that once they got close to Blaine they
saw police were there so they left. He added that he dropped the men back off at
the Travelodge.
{¶105} Witten testified that he received a call from the other man later that
day. He explained that while he and the other man were in his car they were pulled
over by police. Witten added that the other man was arrested.
{¶106} Witten described 740 as being somewhere between 6’3” or 6’4” tall
and weighed approximately 235 pounds. Witten could not tell for sure if 740 was
present in the courtroom. Witten identified video footage of him at a BP gas station,
which was played for the jury and later admitted into evidence. Witten added that
he drove a red 2003 Ford Explorer. Witten testified that he purchased oil at the
request of 740.
{¶107} On cross-examination, Witten testified that none of the four people
he picked up on Blaine smelled of gasoline.
{¶108} Keven Kramer was the next witness to testify on behalf of the State.
Kramer testified that he was employed by the Ohio Bureau of Criminal Investigation
(“BCI”) as a forensic scientist. Next, Kramer went into great detail about his prior
education and experience in his area of expertise. Kramer stated that his duties were
in BCI’s firearms section and that he tested firearms for operability and could
determine if a fired bullet and/or spent cartridge cases were fired from a particular
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Case No. 9-15-52
firearm. Kramer was then accepted as an expert in the area of firearms without any
objection by the defense.
{¶109} Kramer explained the basics of how a revolver and semi-automatic
pistol works, how a bullet is fired, and what happens to cause the bullet to move.
He testified that one can determine whether two spent cartridges were fired from the
same firearm. To do this, he explained that he looks at each cartridge under a
microscope and by noticing tiny imperfections in the cartridge and lining them up
with the other cartridge can determine if they were fired from the same firearm.
{¶110} Kramer identified copies of two laboratory submission sheets, which
were later admitted as business records once the proper foundation was laid, relating
to this case. The first sheet referred to a fired cartridge case and a fired bullet. The
second sheet referred to three shell casings and two bullets. Kramer identified each
item referenced in the sheets and testified as to their chain of custody within BCI.
{¶111} Kramer testified that he tested the different cartridge cases by
comparing them to each other under a microscope. He determined that the four fired
cartridge cases were all fired from the same firearm. He explained that he performed
a similar test with the fired bullets and determined that the three bullets were all
fired from the same firearm.
{¶112} Kramer stated that he was unable to determine scientifically if the
bullets and cartridge cases were fired from the same firearm. However, he noted
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Case No. 9-15-52
that the bullets were the same caliber as the stamp on the cartridge cases. He averred
that his conclusions were reached to a degree of scientific certainty after defense
counsel had objected to Kramer’s conclusions based on a lack of foundation that
was sustained by the trial court. Kramer’s lab reports were also admitted into
evidence as business records once the foundation was laid.
{¶113} Detective Andrew Isom of the Marion Police Department was the
next witness to testify. Detective Isom testified that he was working on May 31,
2015 and was involved in the investigation of a pair of suspected shootings/arsons
located at 412 East Farming Street and 289/291 Maple Street. He explained that he
was initially called in to locate the suspects’ vehicle, a white Dodge Neon with
Georgia license plates. He stated that he eventually located the vehicle and that the
vehicle was subsequently taken to the police department to execute a search. He
explained that he took photographs of the search. He identified each photograph,
which were later admitted into evidence. Of note, Detective Isom testified that they
found a roll of red duct tape and a partially torn white V-neck t-shirt that appeared
to be soaked in something.
{¶114} Detective Isom testified that a few days after the car search he was
involved in a traffic stop that resulted in the arrest of Jones. He stated that Jones
was wearing a white t-shirt and blue shorts. He collected Jones’s clothing, which
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he identified at trial and it was later admitted into evidence. He also testified
regarding the chain of custody for the clothes.
{¶115} After a brief cross-examination, the trial court asked a series of
questions to Detective Isom, primarily regarding Jones’s arrest.
{¶116} The State proceeded to recall Detective Troutman to testify.
Detective Troutman testified that he collected the partially torn shirt found during
the search of the white Dodge Neon. Detective Troutman identified the t-shirt and
testified as to its chain of custody.
{¶117} On cross-examination, Detective Troutman testified that the torn t-
shirt resembled the same fabric used as wick in the Molotov cocktails.
{¶118} After cross-examination, the trial court briefly questioned Detective
Troutman about the chain of custody of the t-shirt.
{¶119} Lieutenant Chris Adkins of the Marion Police Department was the
final witness to testify on behalf of the State. Lieutenant Adkins testified that he
was working on May 31, 2015 and was involved in an investigation involving a
crime that occurred at 289/291 Maple Street. He added that he was not involved
with the investigation at 412 East Farming Street that day.
{¶120} Lieutenant Adkins testified that he returned to 289/291 Maple Street
and went to 412 East Farming Street two or so days before trial to take some
measurements. Specifically, he stated that he took measurements of the height of
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Case No. 9-15-52
the bullet holes and the window at 412 East Farming Street. He identified a series
of photographs that he took of that location, which were later admitted into
evidence.
{¶121} At this moment, a sidebar concerning whether the photographs were
disclosed to the defense in an adequate time. Ultimately, the court allowed
Lieutenant Adkins to testify regarding the measurements.
{¶122} Lieutenant Adkins also identified and testified about photographs he
took of 289/291 Maple Street, which were later admitted into evidence. At this
address, he explained that he took measurements pertaining to each bullet hole’s
height as well as the window near where the gunshots entered.
{¶123} Lieutenant Adkins testified that he was present when Gervin was
arrested. He testified that Gervin was wearing a white t-shirt at the time. He then
identified a photograph of Gervin the day of Gervin’s arrest, which was later
admitted into evidence. In the photograph, Gervin is seen wearing a white t-shirt.
He added that Gervin measured in at 6’5” and weighed 170 pounds at the time of
booking.
{¶124} On cross-examination, Lieutenant Adkins testified as to why no
DNA testing or fingerprinting was done on any of the evidence in this case.
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Case No. 9-15-52
{¶125} At the conclusion of the prosecutor and defense’s examination of
Lieutenant Adkins, the trial court asked Lieutenant Adkins a series of questions that
was suggested by the jury.
{¶126} At the conclusion of Lieutenant Adkins’s testimony, the State moved
to admit all of its exhibits. All of the State’s exhibits were admitted into evidence
except for three photographs which were never discussed by the State’s witnesses.
Defense counsel objected to the admission of State’s Exhibit 39, which consisted of
gas samples from 412 East Farming and Certified, because it was opened prior to
being brought into the courtroom. The court noted the objection, but admitted it
into evidence.
{¶127} After the admission of its exhibits, the State rested.
{¶128} At this time, the defense moved for an acquittal on all of the charges
pursuant to Crim.R. 29. After both sides were given an opportunity to argue as to
each count, the court ultimately granted the motion as to Count 7 (felonious assault),
but denied the motion as to the remaining counts.
{¶129} The defense chose not to present any evidence and rested. Defense
counsel renewed his Crim.R. 29 motion regarding the remaining counts, which was
denied by the trial court. The court proceeded to instruct the jury and provided the
following instruction,
If, during the course of the trial, I said or did anything that you
consider an indication of my view of the acts, you are instructed to
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disregard it. Likewise, if it appears to you that I have emphasized any
portion of this instruction to favor either the State of Ohio or the
Defendant, no such emphasis was intended and you are instructed to
disregard it.
Id. at p. 695.
{¶130} After deliberating, the jury found Gervin guilty of all remaining
charges, including each firearm specification.
{¶131} A sentencing hearing was held on November 25, 2015. At the
hearing, the court found that some of the crimes Gervin was convicted of were allied
offenses of similar import and merged. Specifically, the court found that Count 1
(improperly discharging a firearm at or into a habitation) and Count 8 (felonious
assault) merged. The State elected to proceed to sentencing on Count 8. The court
also found that Count 3 (aggravated arson) and Count 5 (aggravated arson) merged.
The State elected to proceed on Count 3. Finally, the court found that Count 4
(aggravated arson) and Count 6 (aggravated arson) merged. The State elected to
proceed to sentencing on Count 4. The court then proceeded to enter a judgment of
conviction as to Counts 2, 3, 4, and 8, along with the firearm specifications as to
Counts 2 and 8.
{¶132} Next, the court addressed Gervin’s sentence. As to Count 2
(improperly discharging a firearm at or into a habitation), the court imposed a six-
year prison sentence. The court also imposed a mandatory three-year prison
sentence as a result of the firearm specification that was attached to Count 2. As to
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Count 3 (aggravated arson), the court sentenced Gervin to six years in prison. As
to Count 4 (aggravated arson), the court imposed a six-year prison sentence. As to
Count 8 (felonious assault), the court sentenced Gervin to six years in prison. The
court also sentenced Gervin to a mandatory period of three years in prison due to
the firearm specification attached to Count 8.
{¶133} The court ordered that the prison terms resulting from Counts 3 and
8 would be served concurrently for a total of six years. The court did the same thing
with Counts 2 and 4 for a total of six years. After determining that consecutive
sentences were necessary, the court ordered that the two six-year prison terms would
be served consecutively for a total of twelve years. The court found that it was
statutorily bound to require the two three-year prison terms for the firearm
specifications to be served consecutively to each other as well as consecutively to
the terms imposed by the other Counts for an aggregate total of 18 years in prison.
Finally, the court ordered that this sentence would be served concurrently to the
sentence imposed in Marion County Common Pleas Case No. 15-CR-0225.
{¶134} The court informed Gervin that he would be subject to a mandatory
period of five years of postrelease control upon release from prison. Gervin was
given credit for 160 days served while in jail awaiting trial and sentencing. The
court memorialized its decision, by way of entry, on December 1, 2015.
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{¶135} Gervin filed this timely appeal, presenting the following assignments
of error for our review.
Assignment of Error No. I
THE TRIAL COURT COMMITTED NUMEROUS ERRORS
WHICH DEPRIVED APPELLANT HIS CONSTITUTIONAL
RIGHT TO A FAIR TRIAL AND AN APPROPRIATE
SENTENCE.
Assignment of Error No. II
APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL.
Assignment of Error No. III
APPELLANT’S CONVICTIONS WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶136} Due to the nature of Gervin’s assignments of error, we elect to
address them out of order.
Assignment of Error No. III
{¶137} In his third assignment of error, Gervin argues that the trial court
erred by entering convictions that were against the manifest weight of the evidence.
We disagree.
{¶138} When an appellate court analyzes a conviction under the manifest
weight standard, it “sits as the thirteenth juror.” State v. Thompkins, 78 Ohio St. 3d
380, 387 (1997), superseded by constitutional amendment on other grounds as
stated in State v. Smith, 80 Ohio St. 3d 89 (1997). Accordingly, it must review the
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entire record, weigh all of the evidence and its reasonable inferences, consider the
credibility of the witnesses, and determine whether the fact finder “clearly lost its
way” in resolving evidentiary conflicts and “created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.” State v.
Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). When applying the manifest
weight standard, a reviewing court should only reverse a trial court’s judgment “in
exceptional case[s]” when the evidence “weighs heavily against the conviction.” Id.
at paragraph three of the syllabus.
{¶139} The trial court ultimately entered convictions on four counts: one
count of improperly discharging a firearm at or into a habitation with a firearm
specification; two counts of aggravated arson; and one count of felonious assault
with a firearm specification.7
Improperly Discharging a Firearm at or into a Habitation
{¶140} A person is guilty of improperly discharging a firearm at or into a
habitation when he knowingly discharges a firearm at or into an occupied structure
that is either the permanent or temporary habitation of any individual. R.C.
2923.161(A)(1). “A person acts knowingly, regardless of purpose, when the person
7
Because a “conviction” “consists of a guilty verdict and the imposition of a sentence or penalty[,]” our
review is limited to the counts of which Gervin was sentenced. (Emphasis sic.) State v. Whitfield, 124 Ohio
St.3d 319, 2010-Ohio-2, ¶ 12, citing State v. Gapen, 104 Ohio St. 3d 358, 2004-Ohio-6548, ¶ 135; State v.
Franks, 8th Dist. Cuyahoga No. 103682, 2016-Ohio-5241, ¶ 18, citing State v. Williams, 4th Dist. Scioto No.
11CA3408, 2012–Ohio–4693, ¶ 54 and State v. McKinney, 10th Dist. Franklin No. 08AP–23, 2008–Ohio–
6522, ¶ 39. In any event, we find that there was ample evidence to support the jury’s guilty verdicts as to
Gervin’s other charges. Therefore, they were not against the manifest weight of the evidence.
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is aware that the person's conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when the
person is aware that such circumstances probably exist.” R.C. 2901.22(B).
“Occupied structure” is defined as, among other things, a house that is maintained
as a permanent dwelling or when at any time a person is present or likely to be
present in it. R.C. 2909.01(C).
{¶141} Gervin argues his conviction was against the manifest weight of the
evidence because there was no physical evidence linking Gervin to the scene, no
evidence was presented concerning the gun or gun residue, and the State’s two key
witnesses, Brown and B.M., were not credible.
{¶142} In regard to Gervin’s arguments about the credibility of Brown and
B.M., we note that when assessing the manifest weight of the evidence, “[i]t is well
established that the * * * credibility of the witnesses [is] primarily a matter for the
trier of fact.” State v. Clark, 101 Ohio App. 3d 389, 409 (8th Dist. 1995).
Additionally, a reversal on manifest weight grounds is not required when
inconsistencies exist in the testimony of different witnesses. State v. Wareham, 3d
Dist. Crawford No. 3-12-11, 2013-Ohio-3191, ¶ 24, citing State v. Humberto, 196
Ohio App. 3d 230, 2011-Ohio-3080, ¶ 11 (10th Dist.) (“The jury may take note of
any inconsistencies and resolve them accordingly, believing all, part, or none of a
witness’s testimony.”). Finally, the jurors were free to believe the testimony offered
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by the State’s witnesses. See State v. Bates, 12th Dist. Butler No. CA2009-06-174,
2010-Ohio-1723, ¶ 11, quoting State v. Bromagen, 12th Dist. Clermont No.
CA2005-09-087, 2006-Ohio-4429, ¶ 38 (“It is well-established that ‘[w]hen
conflicting evidence is presented at trial, a conviction is not against the manifest
weight of the evidence simply because the jury believed the prosecution testimony.’
”). Although Gervin did not present any conflicting evidence, the same principle
applies where the State was the only party to offer witness testimony. See State v.
Pfeiffer, 3d Dist. Seneca No. 13-15-22, 2015-Ohio-4312, ¶ 58; State v. Saltz, 3d
Dist. Hancock No. 5-14-33, 2015-Ohio-3097, ¶ 46. In reviewing Brown and B.M.’s
testimony, although there are some inconsistencies between their testimony and
other witnesses, e.g., how many shots were fired, they are not so overwhelming that
rational jurors could not find them credible.
{¶143} Next, we observe that no one testified that he or she saw Gervin shoot
into the Dawson household (412 East Farming). However, “the elements of an
offense may be proven by direct evidence, circumstantial evidence, or both.” State
v. Rhodes, 10th Dist. Franklin No. 04AP-50, 2005-Ohio-2293, ¶ 12, citing State v.
Flowers, 10th Dist. Franklin No. 01AP-722, 2002 WL 287648 (Feb. 28, 2002),
citing State v. Durr, 58 Ohio St. 3d 86 (1991). “Circumstantial evidence and direct
evidence inherently possess the same probative value.” State v. Jenks, 61 St.3d 259,
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272 (1991), superseded by constitutional amendment as stated in Smith, 80 Ohio
St.3d 89.
{¶144} In Rhodes, the Tenth District Court of Appeals found that a
conviction was not against the manifest weight of the evidence when there was
testimony placing the defendant at the scene and near the victim’s door prior to the
shooting. 2005-Ohio-2293 at ¶ 12. In another case, the Eighth District Court of
Appeals affirmed a conviction for improperly discharging a firearm at or into a
habitation although no firearm was ever found and no one saw the shooter. State v.
Ivey, 8th Dist. Cuyahoga No. 80812, 2003 WL 1835513, 2003-Ohio-1825, ¶ 24.
The court found the conviction did not require reversal because the victim testified
about the defendant threatening to shoot up the victim’s house, hearing gunshots,
witnessing bullets flying through a house window, and because the actual bullets
were recovered. Id.
{¶145} Similarly, in this case, there is strong circumstantial evidence to
support the jury’s decision. Brown and B.M. testified that Brown told the group
where Anna’s family lived. Both testified that Jones parked the car near 412 East
Farming Street and that he and Gervin got out of the car. Brown testified that Gervin
had a gun on him all night and had it with him in the car. Clark also stated that
Gervin had a gun in his possession that night. Both Brown and B.M. stated that they
heard gunshots nearby. After hearing the gunshots, Brown and B.M. explained that
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they saw Jones and Gervin return to the car and then they left. B.M. described Jones
and Gervin’s movements as running. Thus, the testimony of Brown and B.M.
placed Gervin in the area where the crime was committed, established that Gervin
possessed a gun during this time and that someone fired a gun.
{¶146} Additionally, Dawson and William testified that they heard gunshots
after someone broke their bedroom window. Dawson stated that the person trying
to break the window was wearing a white shirt. When arrested within
approximately 24 hours after the crime was committed, both Jones and Gervin were
wearing white shirts.
{¶147} The physical evidence recovered at 412 East Farming also supports
the jury’s decision. The police officers testified that they located three spent shell
casings outside of the Dawson’s window and two bullets lodged in various areas of
their home. Later that day, Dawson recovered a third bullet from her comforter,
which she handed over to police. Kramer explained to the jury that he was able to
confirm that all three bullets were fired from the same gun and that the spent casings
were all fired from the same gun. He admitted that he was unable to determine if
the casings and bullets were fired from the same firearm, but explained that that was
scientifically impossible in this case.
{¶148} Given the evidence presented to the jury, we are unable to conclude
that this was an exceptional case where the jury clearly lost its way. Accordingly,
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we find that Gervin’s conviction for improperly discharging a firearm at or into a
habitation was not against the manifest weight of the evidence.
Aggravated Arson
{¶149} A person is guilty of aggravated arson if he, by means of fire or
explosion, knowingly creates a substantial risk of serious physical harm to another
person. R.C. 2909.02(A)(2). “A person acts knowingly, regardless of purpose,
when the person is aware that the person's conduct will probably cause a certain
result or will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances probably exist.”
R.C. 2901.22(B). A “substantial risk” is defined as “a strong possibility, as
contrasted with a remote or significant possibility, that a certain result may occur or
that certain circumstances may exist.” R.C. 2901.01(A)(8). “The Ohio Jury
Instructions emphasize the distinction between a ‘strong possibility,’ ‘remote
possibility,’ and ‘significant possibility’ by suggesting the option of adding the
words ‘even a’ in front of the phrase ‘significant possibility.’ ” State v. Wolf, 3d
Dist. Union No. 14-06-24, 2008-Ohio-1483, ¶ 24, citing 4 Ohio Jury Instructions
(2003), Section 509.02(3). “ ‘[T]he language chosen by the General Assembly
contemplates three degrees of ‘possibility’: the highest is ‘strong,’ the middle is
‘significant,’ and the lowest is ‘remote.’ For this reason, the Committee added
‘(even a)’ to the statutory definition.’ ” State v. Eggeman, 3d Dist. Van Wert No.
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Case No. 9-15-52
15-04-07, 2004-Ohio-6495, ¶ 40 (Rogers, J., concurring in part and dissenting in
part), quoting 4 Ohio Jury Instructions (2003), Section 509.02(3), at comment.
“Accordingly, the statutory definition of substantial risk recommended by the Ohio
Jury Instructions reads: ‘ “a strong possibility as contrasted with a remote or even a
significant possibility, that a certain result may occur or that certain circumstances
may exist.” ’ ” Wolf at ¶ 24, quoting Eggeman at ¶ 40 (Rogers, J., concurring in
part and dissenting in part), quoting 4 Ohio Jury Instructions (2003), Section
509.02(3), at comment.
{¶150} “Serious physical harm to persons” is defined as:
(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric
treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary,
substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement
or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as
to result in substantial suffering or that involves any degree of
prolonged or intractable pain.
R.C. 2901.01(A)(5).
{¶151} Finally, in cases involving aggravated arson, we have found that
“[t]he ‘knowingly’ element in an aggravated arson case refers to a defendant’s state
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of mind when he set a fire – i.e. the defendant is aware that the fire or explosion he
set will probably create a substantial risk of serious physical harm. The requisite
proof is not dependant [sic] upon the actual result of the fire but is based upon the
risk of harm created by the defendant’s actions.” Eggeman at ¶ 14.
{¶152} Regarding Gervin’s convictions for aggravated arson as to both the
412 East Farming and 289/291 Maple addresses, he makes the same arguments as
he did regarding the improperly discharging a firearm at or into a habitation. Again,
we note that the jury was free to believe the State’s witnesses.
{¶153} Upon reviewing the record, there was ample evidence to support the
jury’s verdict. As stated supra, Brown and B.M. testified that Gervin was near both
addresses at the time each fire was started. The victims at both residences testified
that they saw a fire inside of their respective homes. Several witnesses testified that
there was a significant amount of smoke at both scenes. Although no one testified
about specific risks created by this fire, “[i]t is in the realm of common knowledge
that a Molotov cocktail is an incendiary bomb, sometimes used in combat, which is
fully capable of causing death if thrown at someone.” State v. Alcala, 6th Dist.
Sandusky No. S-11-026, 2012-Ohio-4318, ¶ 17.
{¶154} Alcala involved very similar facts to those here. In that case, the
defendant threw a Molotov cocktail at a house window. Id. The evidence at trial
established that resulting fire from the Molotov cocktail would have entered the
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home and engulfed a person who was sleeping on the couch had the window not
had a storm window, a screen, and an interior window pane. Id. Finally, the court
found that the Molotov cocktail was thrown into the house at approximately 11:00
p.m., a time which is commonly known to be a time when people are likely asleep,
which would cause them to be vulnerable to a house fire. Id. Thus, the defendant’s
conviction of aggravated arson was not against the manifest weight of the evidence.
{¶155} In this case, the evidence presented, regarding the fire at 412 East
Farming, established that the Molotov cocktail would have entered into the bedroom
and landed on Dawson and William’s bed had there not been a storm window. This
occurred at approximately 6:00 a.m., which is common knowledge to be a time
when people are still sleeping.
{¶156} At trial, defense counsel argued that a Molotov cocktail made out of
a plastic oil container, rather than the conventional method of using a glass bottle,
did not create a substantial risk of serious physical harm since it would not break.
Regarding his argument, we are guided by a similar case decided by the Eighth
District Court of Appeals. See State v. Willis, 120 Ohio App. 3d 320, 331 (8th
Dist.1997). In Willis, the defendant’s conviction for aggravated arson was affirmed
where the defendant threw a plastic two-liter soft drink bottle filled with gasoline
and the charred remains of paper towels into a house. Id. The defendant argued
that his conviction should be reversed because the “firebomb” was inept because it
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was common knowledge that plastic bottles were designed not to break. Id. The
appellate court was not convinced and found that plastic bottles were not break-
proof, but rather break-resistant. Id. Further, the defendant’s argument was
discounted by the fact that gasoline from the bottle leaked out onto the floor. Id.
Finally, as to the defendant’s “inept firebomb” argument, the court found that “the
state has no duty to distinguish between intelligent criminal plans and imprudent
criminal plans as part of proving intent to commit a criminal act.” Id., citing State
v. Stoudemire, 118 Ohio App. 3d 752 (8th Dist.1997). We, like the Eighth District,
conclude that it was irrelevant that the Molotov cocktail used in this case was made
of plastic rather than glass. Further, there was evidence presented that some of the
contents of the bottle leaked onto the floor at 289/291 Maple.
{¶157} The evidence is stronger as to the fire at 289/291 Maple because the
Molotov cocktail actually made it into the house. Further, there was testimony that
the contents of the bottle had spread onto the floor, which Lieutenant Fitsko
explained was the purpose of a Molotov cocktail. See Trial Tr., p. 188. It also
appears from the record that this fire was more severe than the fire at 412 East
Farming because the victim testified that he was unable to put the fire out with water.
Again, we reiterate the inherent risk of a Molotov cocktail when thrown into an
occupied home and at a time when it is common for people to be asleep.
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{¶158} Finally, Brown testified that she saw Gervin using the red tape found
in her car, which appeared to match the tape used on the Molotov cocktails, to tape
something onto the oil container that Jones had purchased.
{¶159} Given the evidence presented to the jury, we are unable to conclude
that this was an exceptional case where the jury clearly lost its way. Accordingly,
we find that Gervin’s convictions for aggravated arson were not against the manifest
weight of the evidence.
Felonious Assault
{¶160} A person is guilty of felonious assault if he knowingly causes or
attempts to cause physical harm to another by means of a deadly weapon. “A person
acts knowingly, regardless of purpose, when the person is aware that the person's
conduct will probably cause a certain result or will probably be of a certain nature.
A person has knowledge of circumstances when the person is aware that such
circumstances probably exist.” R.C. 2901.22(B). A deadly weapon is defined as
“any instrument, device, or thing capable of inflicting death, and designed or
specially adapted for use as a weapon, or possessed, carried, or used as a weapon.”
R.C. 2923.11(A). A firearm is defined as “any deadly weapon capable of expelling
or propelling one or more projectiles by the action of an explosive or combustible
propellant.” R.C. 2923.11(B)(1).
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{¶161} Similar to his arguments regarding his convictions for improperly
discharging a firearm at or into a habitation and aggravated arson, Gervin argues
that Brown and B.M. were not credible and, therefore, his conviction for felonious
assault was against the manifest weight of the evidence. We reiterate that the jury
was free to believe the State’s witnesses. Thus, reversal is not warranted based on
that argument.
{¶162} Again, there was a significant amount of evidence presented to
support Gervin’s conviction for felonious assault. Brown and Clark testified that
they saw Gervin with a gun on his person that evening, and Brown added that Gervin
had the gun just prior to the gunshots she heard near 412 East Farming. Dawson
testified that she awoke to the sounds of someone attempting to break through her
bedroom window. She explained that she screamed after she realized what was
going on and then heard gunshots. William corroborated Dawson’s testimony when
he said that he was awoken by the sounds of Dawson screaming, saw the fire, and
then heard the gunshots. The evidence established that three shots were fired into
the house and one of the bullets was retrieved from Dawson’s comforter.
{¶163} Notwithstanding the above, Gervin argues that his conviction was
against the manifest weight of the evidence because the State failed to show that
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Dawson was the specific victim.8 This is not supported by the record. Brown
testified that she told Jones and Gervin that Anna’s grandparents lived at 412 East
Farming. Moreover, both Dawson and William testified that the gunshots went off
after Dawson screamed. Thus, whoever fired the gun could have heard Dawson
scream before pulling the trigger. Albeit circumstantial, there was plenty of
evidence to support the conclusion that Gervin attempted to harm Dawson.
{¶164} Given the evidence presented to the jury, we are unable to conclude
that this was an exceptional case where the jury clearly lost its way. Accordingly,
we find that Gervin’s conviction for felonious assault was not against the manifest
weight of the evidence.
Firearm Specifications
{¶165} Finally, Gervin argues that the jury’s findings as to the firearm
specifications were against the manifest weight of the evidence. A jury can find a
firearm specification is present if it finds “that the offender had a firearm on or about
the offender’s person or under the offender’s control while committing the offense
and displayed the firearm, brandished the firearm, indicated that the offender
8
The jury was instructed “before you can find the Defendant guilty of Felonious Assault you must find
beyond a reasonable doubt that on or about May 31, 2015, in Marion County, Ohio, the Defendant knowingly
attempted to cause physical harm to Virginia Dawson by means of a deadly weapon.” Trial Tr., p. 706.
While deliberating, the jury asked whether they had to find that Dawson was the specific target as opposed
to an unspecified person, and the court answered in the affirmative. We note that R.C. 2903.11(A)(2) does
not require the State to prove specific target of the assault, but rather the State has to show that the defendant
“cause[d] or attempt[ed] to cause physical harm to another * * * by means of a deadly weapon * * *.”
(Emphasis added.)
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Case No. 9-15-52
possessed the firearm, or used it to facilitate the offense” and the indictment charged
the same.
{¶166} As with regard to his convictions for the primary offenses, the jury
was free to believe the testimony of the State’s witnesses in regard to the firearm
specifications. Specifically, the jury found that Gervin or Jones used a firearm to
facilitate the offenses of improperly discharging a firearm at or into a habitation and
felonious assault. Although no gun was ever recovered, there was a significant
amount of testimony to support the conclusion that a gun was used in the
commission of both offenses. Kramer testified that the bullets recovered from 412
East Farming were all fired from the same gun. Further, different members of law
enforcement testified that they recovered spent casing cartridges from the scene at
412 East Farming. Several witnesses testified that they heard gunshots, and Brown
and Clark testified that Gervin had a gun on him that night.
{¶167} Given the evidence presented to the jury, we are unable to conclude
that this was an exceptional case where the jury clearly lost its way. Accordingly,
we find that the jury’s findings of two firearm specifications were not against the
manifest weight of the evidence.
{¶168} Accordingly, we overrule Gervin’s third assignment of error.
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Assignment of Error No. I
{¶169} In his first assignment of error, Gervin argues that the trial court
denied his constitutional right to a fair trial. Gervin also argues that the trial court
erred by imposing consecutive sentences because of the firearm specifications. We
disagree.
{¶170} Initially, we note that Gervin has improperly combined two
arguments into one assignment of error. Whether a defendant was denied his
constitutional right to a fair trial and whether consecutive sentences were
appropriate are two separate issues, each with a different standard of review.
Therefore, we will address the arguments separately.
Right to a Fair Trial
{¶171} Gervin argues three theories regarding how his right to a fair trial was
violated. First, he argues that the trial court erred by failing to grant a mistrial
because pretrial publicity made it impossible for the jury to remain impartial and
when one of the potential jurors indicated that Jones had pleaded guilty to his
involvement in the alleged crimes. Second, he argues that the trial court went
beyond its duty as an impartial overseer when it laid a business records foundation
on behalf of the State and when it asked the State’s expert whether the expert’s
opinion was based on a reasonable degree of scientific certainty. Third, Gervin
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argues that the trial court went beyond its duty as an impartial overseer when it
validated one of the State’s witness’s testimony.9
Impartial Jury
{¶172} Initially, we note that Gervin did not object during voir dire and did
not move for a mistrial on the basis of pretrial publicity. As a result, Gervin has
waived all but plain error. See State v. Hanning, 5th Dist. Muskingum No. CA 92-
17, 1992 WL 362579, *2 (Dec. 4, 1992), citing State v. Long, 53 Ohio St. 2d 91
(1978). To have plain error under Crim.R. 52(B), the error must be an “obvious”
defect in the trial proceedings that affected the defendant’s “substantial rights.”
State v. Barnes, 94 Ohio St. 3d 21, 27 (2002). Plain error is to be used “with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” Id. Further, plain error only exists where “but for the error,
the outcome of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio
St.3d 426, 431 (1997).
{¶173} “Mistrials need be declared only when the ends of justice so require
and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St. 3d 118, 127
(1991). “Whether to grant a mistrial is within the sound discretion of the trial court.”
State v. Hansen, 3d Dist. Seneca No. 13-12-42, 2013-Ohio-1735, ¶ 58.
9
Because Gervin’s second and third theories are related as they suggest judicial misconduct, we will later
address these arguments together.
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{¶174} The Sixth Amendment of the United States Constitution guarantees
that “[i]n all [federal] criminal prosecutions, the accused shall enjoy the right to a *
* * trial, by an impartial jury * * *.” The Due Process Clause of the Fourteenth
Amendment extended that protection to all defendants in state criminal
prosecutions. State v. Garvin, 197 Ohio App. 3d 453, 2011-Ohio-6617, ¶ 38 (4th
Dist.), quoting Nebraska Press Assn. v. Stuart, 427 U.S. 539, 551, 96 S. Ct. 2791, 49
L. Ed. 2d 683 (1976).
{¶175} “It is rare for a court to presume that a jury is prejudiced by pretrial
publicity.” State v. White, 82 Ohio St. 3d 16, 21 (1998), citing State v. Lundgren, 73
Ohio St. 3d 474, 479 (1995). “Moreover, the fact that prospective jurors have been
exposed to pretrial publicity does not, in and of itself, demonstrate prejudice.” Id.
Thus, if “the record on voir dire establishes that prospective veniremen have been
exposed to pretrial publicity but affirmed they would judge the defendant solely on
the law and the evidence presented at trial, it is not error to empanel such
veniremen.” (Emphasis sic.) State v. Maurer, 15 Ohio St. 3d 239, 252 (1984). “A
defendant claiming that pretrial publicity has denied him a fair trial must show that
one or more jurors were actually biased.” State v. Lynch, 98 Ohio St. 3d 514, 2003-
Ohio-2284, ¶ 35. Finally, “A claim of juror misconduct must focus on the jurors
who were actually seated and not those excused.” State v. Williams, 79 Ohio St.3d
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1, 4 (1997), citing Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L.Ed 80
(1988).
{¶176} In this case, the trial court and counsel for both parties did a sufficient
job in addressing the issue of pretrial publicity. This is not a case where the potential
jury was not examined regarding their knowledge of any pretrial publicity. Further,
the jury was instructed several times that they were not to consider anything they
might have read in the newspaper.
{¶177} Prior to the start of trial in this case, the court addressed both parties
about an article that was written in the local paper that discussed the case. The court
said that the article mentioned Jones pleading guilty, his possible sentence, and
Gervin’s other case. The court informed counsel that it would be appropriate to
question the jury pool to determine who had read or seen the article. Before voir
dire began, the court instructed the potential jurors that they need to be honest if
there was any reason that they could not remain impartial as the defendant was
entitled to an impartial jury.
{¶178} After the State had finished questioning the potential jurors, the court
asked if anyone had a problem with the State’s burden of proof. One juror indicated
that he did not, but did “have a problem with the Defendant’s supposed accomplice
plead [sic] guilty[.]” Trial Tr., p. 42. The court proceeded to immediately instruct
the potential jurors to disregard the juror’s comments. Then, the court gave the
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potential jurors a lengthy and in depth instruction about how they should not
consider anything they may have seen in the newspaper. The court further notified
the potential jurors that they would later be instructed to ignore any media coverage
in the case while the trial is pending. Defense counsel then proceeded into a
discussion with the potential jurors regarding the article in the newspaper.
{¶179} Gervin argues that a mistrial should have been awarded based on the
statements of the potential juror, who initially brought up Jones’s supposed guilty
plea. During Defense counsel’s examination of the potential jurors, he asked about
whether anyone had seen the article. A couple of people indicated that they had
read about the case in the newspaper. Defense counsel questioned those jurors
(three in total), and two of the jurors answered that they would not be influenced by
what was in the media. The third juror, the one who initially brought up Jones’s
supposed guilty plea, was unsure if he could remain impartial based on what he had
read. However, this potential juror was later dismissed for cause because of a
physical condition. Thus, this person was not a member of the jury that heard and
deliberated the facts in this case. This is insufficient to establish juror misconduct,
as a defendant must prove misconduct by a member of the sitting jury, not a potential
juror that was ultimately excused. See Williams, 79 Ohio St. 3d at 4. Therefore,
there was no obvious defect in voir dire.
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{¶180} Because we find that there was no obvious defect in voir dire, there
is no need to determine if Gervin had a substantial right affected.
Judge’s Examination of Witnesses
{¶181} Before addressing the merits of Gervin’s argument, we note that
Gervin also failed to object to the judge’s questions to the various witness.
Therefore, he has waived all but plain error. Thus, we will only reverse upon a
showing of an obvious error that has affected Gervin’s substantial rights.
{¶182} “One of the fundamental rights of a litigant under our judicial system
is that he is entitled to a fair trial in a fair tribunal, and that fairness requires an
absence of actual bias or prejudice in the trial of the case.” Knapp v. Kinsey, 232
F.2d 458, 465 (6th Cir.1956).
The judge should exercise self-restraint and preserve an atmosphere
of impartiality. When the remarks of the judge during the course of a
trial, or his manner of handling the trial, clearly indicate a hostility to
one of the parties, or an unwarranted prejudgment of the merits of the
case, or an alignment on the part of the Court with one of the parties
for the purpose of furthering or supporting the contentions of such
party, the judge indicates, whether consciously or not, a personal bias
and prejudice which renders invalid any resulting judgment in favor
of the party so favored.
(Citations omitted.) Id. at 466-467. Further, “great care must be taken by a judge
to ‘always be calmly judicial, dispassionate and impartial. He should sedulously
avoid all appearances of advocacy * * *.’ ” United States v. Hickman, 592 F.2d
931, 933 (6th Cir.1979), quoting Frantz v. United States, 62 F.2d 737, 739 (6th
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Case No. 9-15-52
Cir.1933). “At the end of a trial, although a litigant may be disappointed in the
outcome, he should leave the courthouse feeling that he has been treated fairly, and
that his case had been decided by a neutral and impartial arbiter.” Anderson v.
Sheppard, 856 F.2d 741, 745-746 (6th Cir.1988).
{¶183} Evid.R. 611 grants the trial court the power to “exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence
so as to (1) make the interrogation and presentation effective for the ascertainment
of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.”
{¶184} Evid.R. 614(B) empowers the court with the authority to interrogate
any witness in an impartial manner. A court’s questioning of a witness falls within
the court’s sole discretion. See State v. Prokos, 91 Ohio App. 3d 39, 44 (4th
Dist.1993).
{¶185} “The evident purpose of Evid.R. 614(B) is to prevent the trial judge,
in questioning the witness, from conveying to a jury the judge’s impression as to the
credibility or lack of credibility of a witness.” State v. Armstrong, 2d Dist.
Montgomery No. 13498, 1993 WL 294834, *5 (Aug. 6, 1993). “ ‘In absence of any
showing of bias, prejudice, or prodding of a witness to elicit partisan testimony, it
will be presumed that the trial court acted with impartiality [in propounding to the
witness questions from the bench] in attempting to ascertain a material fact or to
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develop the truth.’ ” State v. Baston, 85 Ohio St. 3d 418, 426 (1999), quoting Jenkins
v. Clark, 7 Ohio App. 3d 93, 98 (2d Dist.1982).
{¶186} In this case, Gervin argues that the trial court abandoned its role as a
neutral arbiter and assumed the role of an advocate when it laid a business record
foundation and an expert witness foundation on behalf of the State. He also argues
that the trial court improperly validated Pickett’s testimony about the two black
males running from the crime scene. Although it is arguable that the judge assumed
the role of an advocate, we find that it does not rise to the level of plain error.
{¶187} Before we analyze Gervin’s other arguments, we want to briefly
discuss the validation argument. A review of the record reveals that the trial court
did not validate Pickett’s testimony. Rather, the court was attempting to clarify
where it was that Pickett saw the “two black males” as Pickett described them. We
find no error with this questioning.
{¶188} It is important to note from the onset that this was not a bench trial,
where the court is granted greater flexibility when examining witnesses. See State
v. Grad, 9th Dist. Medina No. 10CA0003-M, 2012-Ohio-1358, ¶ 44, quoting State
v. Daugherty, 11th Dist. Trumbull No. 2001-T-0024, 2002 WL 411105, *2 (Mar.
15, 2002). During a jury trial, courts must be careful with their questioning of
witnesses because there is a potential for the jury to be prejudicially influenced by
the judge’s actions. See id.
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{¶189} In this case, the court’s involvement blurred the line between
impartial overseer and advocate. First, prior to the court’s examination of
Rajendram, Gervin argues that the State had failed to establish a business records
foundation for several exhibits, which were submission sheets from the crime
scenes. Rajendram testified about the submission sheets at great lengths prior to
their establishment as business records. At the conclusion of direct and cross-
examination, the court asked Rajendram if the submission sheets were kept in the
ordinary course of business at the State Marshal’s office, if they were relied upon in
the operation of that business, if she personally relied upon them, if they were
prepared by someone at or near the time of the events reflected in the document, and
if they were done in a routine manner. However, the State did question Rajendram
about the submission sheets. Specifically, Rajendram testified that the submission
sheets were created by her office after receiving the evidence and the evidence
receipts.10 Thus, it could readily be inferred by the trier-of-fact that the submission
sheets were kept in the regular course of business and accurately reflected the
identity of the State’s samples. Further, counsel did not object to the admission of
these exhibits at trial, therefore, given the overwhelming amount of incriminating
evidence presented, this does not rise to the level of plain error.
10
Upon a review of the record, the State established the evidence receipts as business records. See Trial Tr.,
p. 310-312.
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{¶190} Second, Gervin contends that he was prejudiced by the trial court’s
interruption during the State’s examination of Rajendram,
Can we - - we don’t have any testimony, first of all, you know - - you
have an expert opinion, you don’t have any testimony as to what it is
she was examining that relates to this case, just two items, six items.
Can we tie this to exhibits? Also get her qualified, make sure we’re
in agreement on that?
Trial Tr., p. 312-313. The State proceeded to ask Rajendram questions to properly
qualify her as an expert in the field of analyzing ignitable fluids, and the court
accepted her as an expert witness in that field. Upon review, the State had
previously elicited the foundational requirements to classify Rajendram as an
expert, therefore there was no error.
{¶191} Nonetheless, the judge’s involvement in this case is troubling
because it can give the appearance that the court is working alongside the State. It
appears that the court is, in fact, giving the State instructions as to how it should
present its case. This is further exacerbated by other events that occurred during the
course of trial.
{¶192} The court seemingly instructed the State previously during Officer
Wheeler’s direct examination. Specifically, the court stated,
The testimony would be a lot easier for the jury if you just give ‘em
all the photographs, ask him if all the ones you’re gonna use, as [sic]
him if they’re a fair and accurate representation of what the scene
appeared on that day, then you’ve laid your foundation, we can
display the photograph as he’s explaining the photograph instead of
having the prior photograph displayed while he’s explaining the next
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photograph. It would move quicker and I think it would be more
understandable for the jury.
Id. at p. 228.
{¶193} Later, during Rajendram’s direct examination, the court interrupted
and said “Okay. Let’s - - you’ve identified items 1, 2, 3, 4, 5, and 6. Can you
identify them by exhibit so that the record’s clear? * * * Let’s have the witness
testify about this.” Id. at p. 316. There were countless other times that the trial court
interrupted the State’s examination of other witnesses, raised objections sua sponte,
and conducted its own examination of the State’s witnesses. Although most of these
interruptions were most likely an attempt to clarify confusing issues, such as
evidence identification for the jury and the record on appeal, the quantitative level
of involvement was extreme.
{¶194} Even if we assume, arguendo, that the trial court’s mistakes arose to
an “obvious error,” there is nothing to suggest that Gervin’s substantial rights were
affected. Although the court went beyond its role in this case, the court instructed
the jury,
If, during the course of the trial, I said or did anything that you
consider an indication of my view of the facts, you are instructed to
disregard it. Likewise, if it appears to you that I have emphasized any
portion of this instruction to favor either the State of Ohio or the
Defendant, no such emphasis was intended and you are instructed to
disregard it.
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Id. at p. 695. “A jury is presumed to follow the instructions, including curative
instructions, given it by a trial judge.” State v. Garner, 74 Ohio St. 3d 49, 59 (1995).
Further, the content of the court’s questions appeared to be relatively neutral. The
court did not appear to belittle any of the witnesses or question the credibility of any
witness. Finally, even disregarding any evidence resulting from the court’s
interrogations, there was an overwhelming amount of incriminating evidence in this
case as stated in more detail supra. Thus, errors resulting from the trial court’s
actions were rendered harmless and did not affect Gervin’s substantial rights.
{¶195} Again, there is no question that in exercising its control of the
proceedings the trial court maintained an extensive level of sua sponte personal
involvement with the witnesses and counsel. There may be differing views about
whether this practice unnecessarily creates potential for error and even plain error
in certain circumstances. However, in this case, plain error did not occur.
Consecutive Sentences
{¶196} “A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record or otherwise contrary to law.” State v. Barrera, 3d Dist.
Putnam No. 12-12-01, 2012-Ohio-3196, ¶ 20. Clear and convincing evidence is that
“which will produce in the mind of the trier of facts a firm belief or conviction as to
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the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954),
paragraph three of the syllabus.
{¶197} If a defendant is convicted of a firearm specification, then the trial
court is required by law to impose a three-year prison term. R.C.
2929.14(B)(1)(a)(ii). This is to be served consecutive to any prison term imposed
by the trial court on any of the defendant’s other convictions. See R.C.
2929.14(B)(1)(b).
{¶198} Generally, a trial court may not impose more than one prison term
for multiple firearm specifications “for felonies committed as part of the same act
or transaction.” R.C. 2929.14(B)(1)(b). However, R.C. 2929.14(B)(1)(g) provides
an exception to this rule. It states,
If an offender is convicted of or pleads guilty to two or more felonies,
if one or more of those felonies are * * * felonious assault * * *, and
if the offender is convicted of or pleads guilty to a [firearm]
specification * * * in connection with two or more of the felonies, the
sentencing court shall impose on the offender the prison term
specified under (B)(1)(a) of this section for each of the two most
serious specifications of which the offender is convicted or to which
the offender pleads guilty and, in its discretion, also may impose on
the offender the prison term specified under that division for any or
all of the specifications.
(Emphasis added.) R.C. 2929.14(B)(1)(g).
{¶199} In this case, Gervin was convicted of several offenses and two
firearm specifications. One of his convictions was for felonious assault with a
firearm specification. His other convictions were for aggravated arson and
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improperly discharging a firearm at or into a habitation with a firearm specification.
All of his convictions were felonies and one of them was of the type enumerated in
R.C. 2929.14(B)(1)(g). Therefore, the trial court was required to impose two
separate three-year prison terms for the firearm specifications and those terms must
be consecutive to the prison terms imposed for the underlying offenses.
{¶200} Accordingly, we overrule Gervin’s first assignment of error.
Assignment of Error No. II
{¶201} In his second assignment of error, Gervin argues that he was denied
effective assistance of counsel. Specifically, Gervin argues that trial counsel failed
to move for a mistrial during voir dire; failed to object to Lieutenant
Neuenschwander’s opinion testimony; failed to object to a lack of chain of evidence
regarding the items shipped from the city fire department to the State Marshal’s
office; and failed to object to B.M.’s testimony that there was a plan to blow up
Brown’s car. We disagree.
{¶202} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St. 3d
136 (1989), paragraph two of the syllabus. “To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
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would have been different.” Id. at paragraph three of the syllabus. “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy, 63 Ohio St. 3d 424, 433 (1992), superseded by
constitutional amendment on other grounds as recognized by State v. Smith, 80 Ohio
St.3d 89, 103 (1997).
{¶203} Further, the court must look to the totality of the circumstances and
not isolated instances of an allegedly deficient performance. State v. Barnett, 3d
Dist. Logan No. 8-12-09, 2013-Ohio-2496, ¶ 45. “Ineffective assistance does not
exist merely because counsel failed ‘to recognize the factual or legal basis for a
claim, or failed to raise the claim despite recognizing it.’ ” Id., quoting Smith v.
Murray, 477 U.S. 527, 535, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).
{¶204} The Supreme Court of Ohio has “consistently declined ‘to second-
guess trial strategy decisions’ or impose ‘hindsight views about how current counsel
might have voir dired the jury differently.’ ” State v. Mundt, 115 Ohio St. 3d 22,
2007-Ohio-4836, ¶ 63, quoting State v. Mason, 82 Ohio St. 3d 144, 157 (1998).
{¶205} Evid.R. 701 provides that a non-expert witness’s “testimony in the
form of opinions * * * is limited to those opinions * * * which are (1) rationally
based on the perception of the witness and (2) helpful to a clear understanding of
the witness’[s] testimony or the determination of a fact in issue.” Thus, the Supreme
Court of Ohio has found that a police officer may give his or her opinion as to the
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similarity of footprints found at the crime scene with that of the defendant’s shoes.
See State v. Jells, 53 Ohio St. 3d 22, 29 (1990) (“Thus, a lay witness may be
permitted to express his or her opinion as to the similarity of footprints if it can be
shown that his or her conclusions are based on measurements or peculiarities in the
prints that are readily recognizable and within the capabilities of a lay witness to
observe.”). In other words, if the objects are sufficiently distinct that no scientific
analysis is required, then the lay witness may testify as to his or her opinion
regarding it. See id.
{¶206} The State has the burden of establishing a proper chain of custody for
items of evidence that it offers at trial. State v. Brown, 107 Ohio App. 3d 194, 200
(3d Dist.1995). Carrying this burden implicates Evid.R. 901, which provides that
“[t]he requirement of authentication or identification * * * is satisfied by evidence
to support a finding that the matter in question is what its proponent claims.” Based
on the “low threshold” embodied in Evid.R. 901, State v. Norman, 4th Dist. Nos.
08CA3059, 08CA3066, 2009–Ohio–5458, ¶ 68, the State is not required to prove
“a strict chain of custody[.]” State v. Wilkins, 64 Ohio St. 2d 382, 389 (1980).
Rather, the State merely needs to “establish that it is reasonably certain that
substitution, alteration or tampering did not occur.” Brown at 200. Accordingly,
“any breaks in the chain of custody after establishment of such a reasonable
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certainty go to the weight of the evidence [and not] its admissibility.” State v. Plotts,
3d Dist. No. 15–10–08, 2011–Ohio–900, ¶ 26.
{¶207} Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Evid.R. 801(C). Hearsay is not admissible unless one
of several exceptions apply. Evid.R. 802. Evid.R. 803 provides several exceptions
to the hearsay rule, including “a statement of the declarant’s then existing state of
mind * * * (such as intent, plan, motive, [and] design * * *) * * *.” Evid.R. 803(3).
{¶208} Finally, relevant evidence “may be excluded if its probative value is
substantially outweighed by considerations of undue delay, or needless presentation
of cumulative evidence.” Evid.R. 403(B).
{¶209} Upon a review of the record, we conclude that trial counsel’s
performance did not fall below an objectionable standard of reasonable
representation.
{¶210} First, Gervin argues that trial counsel should have moved for a
mistrial during voir dire after one of the prospective jurors stated that Jones had
pleaded guilty as to his role in the crimes. This fact, according to Gervin, would be
impossible for the ultimate jurors to disregard, and, therefore, Gervin was denied
effective assistance of counsel.
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{¶211} As stated in more detail supra, the potentially problematic juror, as
well as the rest of the jury pool, was properly instructed at length by the trial court.
Further, trial counsel spoke about the trial court’s instruction at great length during
voir dire in an attempt to further dissipate any remaining questions as to whether the
jury could consider the information regarding Jones’s case. Finally, the prospective
juror responsible for this information was ultimately dismissed due to a physical
condition.
{¶212} Second, Gervin argues that trial counsel should have objected to three
evidentiary issues that occurred at trial; (1) Lieutenant Neuenschwander’s opinion
testimony; (2) lack of chain of evidence; and (3) the plan to blow up the car.
{¶213} At trial, Lieutenant Neuenschwander testified that it was his opinion
that the fires at 412 East Farming and 289/291 Maple were similar. This was based
on his observations of the scenes and the fact that a similar type of item was used to
create the fire – a Molotov cocktail made out of a plastic oil container wrapped in
red duct tape. Photographs were taken of both Molotov cocktails and shown to the
jury. The nature of both Molotov cocktails was apparent and did not require any
scientific analysis to determine that they were nearly identical. Thus, this evidence
was properly admitted and a failure to object was not an error.
{¶214} Gervin’s main issue with the chain of custody evidence is that no one
from The Door Guys testified regarding the items they received from the fire
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department and later delivered to the state Fire Marshal’s office. Other than
testimony from The Door Guys, everyone else in the chain of custody testified at
trial. Although the State did not offer evidence as to this missing link in the chain
of custody, the jury was free to determine for itself whether the items being offered
into evidence were what the State claimed them to be, and there was no evidence
suggesting otherwise. Thus, the State provided sufficient evidence to establish the
chain of custody, and, therefore, trial counsel did not error by failing to make an
objection.
{¶215} Regarding B.M.’s statements about the plan to blow up the car, the
statements of the other individuals were clearly hearsay. That being said, the
statements fall squarely within Evid.R. 803(3) because they go to the declarant’s
intent, plan, motive, and design. The individuals involved were discussing a plan
to blow up the car to get rid of evidence. Further, this evidence was not unfairly
prejudicial as to require exclusion under Evid.R. 403(B) when one considers the
overwhelming evidence of guilt in this case. Thus, this evidence was properly
admitted, and trial counsel did not err by failing to object.
{¶216} Accordingly, we overrule Gervin’s second assignment of error.
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{¶217} Having found no error prejudicial to the appellant, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr
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