State v. Bias

[Cite as State v. Bias, 2022-Ohio-4643.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 21AP-329
v. : (C.P.C. No. 17CR-7003)
Devon D. Bias, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 22, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and Seth L.
Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: Dennis C. Belli, for appellant. Argued: Dennis C.
Belli.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Devon D. Bias, appeals from a judgment of conviction
and sentence entered by the Franklin County Court of Common Pleas following a bench
trial. For the following reasons, we affirm that judgment.
{¶ 2} On December 28, 2017, appellant and co-defendant, Darnell Vinson, were
indicted on four counts of murder in violation of R.C. 2903.02 (two purposeful and two
felony murders), all unspecified felonies, one count of discharging a firearm at or into a
habitation or school safety zone in violation of R.C. 2923.161, a second-degree felony, three
counts of attempted murder in violation of R.C. 2923.02 as it relates to 2903.02, all first-
degree felonies, three counts of felonious assault in violation of R.C. 2903.11, all second-
No. 21AP-329 2
degree felonies, and one count of having weapons while under disability ("WUD") in
violation of R.C. 2923.13, a third-degree felony. All but the WUD count included firearm,
drive-by shooting, and criminal gang activity specifications. The charges arose from the
shooting deaths of Q.S. and S.C. and the attempted shooting deaths of Jaw.L., Jar.L., and
E.B.1 on December 4, 2017.
{¶ 3} Appellant and Vinson were tried separately. Appellant voluntarily waived his
right to trial by jury and elected to be tried by the court.
{¶ 4} The bench trial commenced on April 19, 2021. The prosecution presented live
testimony from several witnesses. Jaw.L. did not testify at trial; however, following an
Evid.R. 804(B)(6) hearing conducted midway through the trial, the trial court admitted
video recordings of statements made by Jaw.L. during two police interviews conducted
shortly after the shootings. (State's Exs. Y-1, Y-2.) By agreement of the parties, the
prosecution played selected portions of those interviews. (State's Exs. Y, Y-1, Y-2.)
{¶ 5} In the interviews, Jaw.L. averred that sometime after 9:15 a.m. on
December 4, 2017, he and his passengers, Jar.L., Q.S. and E.B., were driving around the
Hilltop area in Columbus in a Honda CR-V. Jaw.L. observed a gray Chevy Malibu with
dark-tinted windows and expensive-looking wheel rims directly ahead of him. Jaw.L. had
seen the car in the area many times. Jaw.L. followed the Malibu for about one block and
then unsuccessfully attempted to turn onto another street. At that point, the Malibu
abruptly stopped; a person leaned out of the passenger side window and began shooting at
the CR-V with a semi-automatic rifle. Jaw.L. described the shooter as a thin, African
American male with "dark skin" and "chin hair," wearing a black hoodie and "a hat, a black
skull cap type thing." (Jan. 3, 2018 Tr. at 480; State's Ex. Y-2.) Jaw.L had never seen the
shooter before; however, he got a glimpse of his face and noted that his complexion was a
shade or two darker than his own.2 Jaw.L. demonstrated how the shooter leaned out of the
window and propped his gun on top of the Malibu. He averred that when bullets began
hitting the CR-V, Q.S. grabbed him, pushed his head down and told him to unlock the door.
As Q.S. exited the car, he was shot in the neck; he ran away and eventually collapsed in an
1 Jaw.L. and Jar.L. are brothers. At the time of the shootings, Q.S., Jaw.L., Jar.L., and E.B. were minors;
S.C. was an adult. We initialize all their names to protect their identities.
2 Jaw.L. is also African American.
No. 21AP-329 3
alley. The shooting continued as Jaw.L., Jar.L., and E.B. ran away. Jaw.L. thought the
shooter might be a member of the Hot Boys, a criminal gang operating on the west side of
Columbus. Jaw.L. speculated that the shooter knew who he was and targeted him because
he thought Jaw.L. was intentionally following the Malibu.
{¶ 6} Bradley H. Foss, a Columbus Division of Police ("CDP") patrol officer,
testified that he was dispatched to the scene at approximately 9:30 a.m. Upon arrival, Foss
observed the CR-V stopped in the middle of the intersection of Ray Street and South Wayne
Avenue ("South Wayne"). The CR-V was unoccupied, but the engine was still running.
Upon closer inspection, Foss noted broken windows, multiple bullet holes, and a significant
amount of blood in the back seat. A blood trail leading away from the CR-V signaled to Foss
that someone had been shot inside the CR-V and then exited on foot. Foss located
numerous shell casings—fired from both an automatic rifle and a handgun—on the ground
near the CR-V.
{¶ 7} Shortly thereafter, patrol officers Todd Aiello and Michael Ryan arrived at the
scene. Aiello testified that area residents directed them to an alley near South Wayne,
where a young African American male, later identified as Q.S., lay on the ground with a
gunshot wound to his neck. Q.S. was unconscious and bleeding profusely.3 The officers
canvassed the neighborhood, but found no one who had witnessed the shooting.
{¶ 8} Crime Scene Search Unit ("CSSU") Detective Donald K. Jones testified that
he collected evidence and took photographs at the scene. During this process, Jones noticed
several bullet holes in the front section of a house located at 215 South Wayne, near where
the CR-V was stopped. Through the front window, Jones observed bullet strikes in a wall
and a gunshot victim, later identified as S.C., on the floor of the living room.4
{¶ 9} Photographs taken by Jones depict multiple bullet strikes to the CR-V, a
blood trail leading from the CR-V to the alley where Q.S. was found, multiple bullet strikes
to the front and interior of the house where S.C. was found, multiple 7.62x39 millimeter
and .40 caliber shell casings near the CR-V, and a hat found in the street near the scene.
3 Q.S. was transported to the hospital, where he later died. The Franklin County Coroner determined Q.S.'s
cause of death to be a gunshot wound to the neck. (State's Ex. Q; Joint Stip. Ex. 3.)
4 S.C. was pronounced dead at the scene. The Franklin County Coroner determined that S.C. died of a
gunshot wound to the chest. (State's Ex. R; Joint Stip. Ex. 4.)
No. 21AP-329 4
(Apr. 19, 2021 Tr. at 165; State's Ex. B.) At trial, Jones described the hat as "clean" and not
"weathered," which suggested to him that it had not been in the street very long. (Tr. at
153, 154.) CSSU collected numerous items, including, as relevant here, seventeen .40
caliber shell casings, thirteen 7.62x39 shell casings,5 and a "black/gray knit hat," from the
Wayne Avenue area, and six projectiles and two bullet fragments from 215 South Wayne
Avenue. (State's Ex. B and C-234).
{¶ 10} Robbie Thompson testified that he was outside working in the vicinity at the
time of the shooting. He heard what he thought were multiple gunshots—"like a pack of
fireworks going off"—and then observed a gray Chevy Malibu with temporary license tags
"flying" down the street. (Tr. at 187, 191.) Thompson saw the occupants of the Malibu,
whom he described as two "younger" African American males, only for a few seconds; as
such, he could not identify them. Id. at 187. Later that evening, after seeing a news report
about the murders, he called the police and reported what he had seen and heard.
{¶ 11} Homicide Detectives Melissa Carlson6 and Anne Novotny7 testified that they
obtained surveillance camera video from a business located near the scene of the shootings.
(State's Ex. L, L-1, L-2, L-3, L-4; Joint Stip. Ex. 2). Criminal Intelligence Analyst Amber
Gill testified that she examined the surveillance video, which depicts a Honda CR-V
following a gray Chevy Malibu with 30-day temporary license tags and a white front
dealership placard at approximately 9:26 a.m. on December 4, 2017. (Tr. at 203; State's
Ex. L, L-1, L-2, L-3, L-4.)
{¶ 12} Carlson also testified about Jaw.L.'s police interviews. To that end, she
averred that she asked Jaw.L. for the names of any persons with whom he had conflicts.
Jaw.L. provided the names of several members of the Hot Boys gang. (Tr, at 485, 539;
State's Ex. Y-2.) Carlson testified that Jaw.L. did not indicate that these individuals were
involved in the shootings; rather, he stated several times that he had never seen the person
who shot him. (Tr. at 542; State's Ex. Y-2.) Upon investigation, Carlson found no
5 The 7.62x39 mm shell casings were fired from the same firearm. (Joint Stip. Ex. 8).
6 Detective Carlson lead the investigation; she retired in 2020.
7At the time of the investigation, Detective Novotny's surname, as reflected in relevant CDP
documentation, was Pennington; she retired in 2020.
No. 21AP-329 5
connection between the named individuals and the shootings; she admitted, however, that
she did not prepare a written summary of her investigation into those individuals.
{¶ 13} Detective Lowell Smittle from the Narcotics Bureau Criminal Intelligence
Unit ("CIU") testified that on December 11, 2017, he received information leading to the
discovery of a gray Chevy Malibu with 30-day temporary tags and a front white dealership
placard on East Barthman Avenue. Following its impoundment, the Malibu was
photographed and processed by CSSU. The photographs depict a bullet strike above the
window on the rear passenger side of the vehicle and fragments of a bullet found inside the
vehicle. (Tr. at 366-371; State's Ex. J-7 through J-20.) According to Smittle, the bullet had
been fired from the front passenger side toward the rear of the Malibu. The bullet
fragments were recovered and analyzed; however, their irregular shape precluded any
determination as to the source of their firing. (Tr. at 371; State's Ex. K, K-1, K-2, K-3.) No
DNA or fingerprints were recovered from the Malibu.
{¶ 14} Gill determined that the Malibu recovered from Barthman was the same one
depicted in the surveillance video. She further determined that the vehicle was registered
to Vinson's girlfriend, Shakiyla Kendrick.
{¶ 15} CDP traced Kendrick to a residence on Mayfair Boulevard. (Joint Stip. Ex. 7.)
On December 12, 2017, SWAT Officer Mark Aurentz observed Kendrick and Angel Watkins
leave the residence and place two bags in the trunk and backseat of a car. Id. After Watkins,
the car's owner, signed a consent to search form, Carlson and Novotny recovered the bags
from the vehicle. (State's Ex. F-53; Joint Stip. Ex. 7.) CSSU Sergeant Joseph Donovan
photographed the bags and transported them to the CSSU laboratory for processing.
(State's Ex. F; Joint Stip. Exs. 1 and 7.) Pursuant to a search warrant, and as relevant here,
CDP recovered a Glock .40 caliber pistol, a .40 caliber magazine, and .40 caliber
ammunition from the bags.
{¶ 16} Firearms examiner Erica Pattie testified that she compared a projectile
recovered from S.C.'s body to test bullets fired from the .40 caliber Glock pistol. In her
reported findings, Pattie opined that the projectile and the test bullets were fired from the
same .40 caliber Glock pistol. (State's Ex. M-4.)
{¶ 17} DNA analyst Miranda Aufiero Smith testified that she obtained DNA from
inside the hat recovered from the scene and from the firearm recovered from Kendrick's
No. 21AP-329 6
car for comparison to DNA obtained from appellant8 and Vinson. In her reported findings,
Smith opined that the hat contained DNA from two individuals and that appellant could
not be excluded as the major contributor. More particularly, Smith opined that "it is at least
292 octillion times more likely if Devon Bias is one of the contributors than if this were a
mixture of two unknown, unrelated individuals." (Tr. at 310; State's Ex. N-1.) Smith further
opined that Vinson could be excluded as a major contributor. As to the firearm, Smith
opined that Vinson could not be excluded as the major contributor of DNA and that
appellant could be excluded as a major contributor. On cross-examination, Smith
acknowledged the possibility that unswabbed portions of the hat could contain DNA from
another major contributor or that an individual who had been in contact with the hat did
not leave any DNA.
{¶ 18} Pursuant to the Evid.R. 804(B)(6) hearing, the trial court also admitted an
audiotape of Jaw.L.'s participation in a photo array procedure held on December 14, 2017.
(State's Ex. Y-3). During that procedure, Jaw.L. was presented a six-person photo array.
(State's Exs. O and Y-3.) Appellant's photograph appeared in the "#6" position. The photo
array procedure was conducted by a blind administrator in accordance with CDP policy.
During the procedure, Jaw.L. averred that he thought he had seen #6 somewhere before,
but he could not be certain. He further averred, "I don't know why, but I feel like it's #6."
(State's Ex. Y-3.) In response to the administrator's question as to whether Jaw.L. was able
to say "it is, is not, or not sure," Jaw.L. averred, "I want to say it's #6, because when the
dude came out [of] the car—he's just got his features. I got a glimpse of his face before I
went down because I had a little time to look. * * * I don't want to accuse nobody, but I think
it's #6." (State's Ex. Y-3.) When questioned about the shooter's actions, Jaw.L. explained
that the shooter leaned out of the back seat passenger window, propped his gun on top of
the car, and started shooting. According to Jaw.L., "[the shooter] took 4 or 5 seconds, so I
got to look at his face a little bit before he started shooting." Id. In the "Viewer's Statement"
section of the written photo array procedure form, the administrator summarized Jaw.L.'s
statement, writing: "1, 2, 4, 6 look familiar. #6 came to back seat passenger window and
started shooting [Q.S.] and another person was shot." Jaw.L. circled appellant's
8 On January 19, 2018, Carlson obtained two oral swabs from appellant in order to provide a DNA
standard for the CDP crime laboratory. (State's Ex. S ; Joint Stip. Ex. 5.)
No. 21AP-329 7
photograph and identified "#6" as the shooter. (State's Exs. O and Y-3.) Jaw.L. thereafter
told Carlson he was "positive" #6 was the shooter. (Tr. at 496; State's Ex. Y-3.)
{¶ 19} CIU Detective Smittle also testified about criminal gang activity in Columbus.
To that end, Smittle averred that determination by law enforcement as to gang membership
involves evaluation of several factors. One such factor—frequent documented association
with known gang members—is typically determined through the use of police reports
detailing criminal activity involving gang members, other police documentation showing a
connection between gang members at specific times and locations such as funerals or other
social gatherings, social media depictions of gang members together, and/or self-admission
of gang affiliation to police officers during field interviews.
{¶ 20} Smittle noted that one of the major gangs in Columbus, known as the
"Bloods," typically identify with the color red. Members often wear red clothing and hats
and have tattoos and display hand gestures designating their affiliation with the Bloods.
{¶ 21} According to Smittle, in Columbus, the Bloods have affiliated "subsets," one
of which is the Deuce Deuce Bloods. (Tr. at 335.) Smittle described the Deuce Deuce Bloods
as a large gang with historical membership of over 100 active members and current active
membership of approximately 16 individuals. The Deuce Deuce Bloods operate in the
Livingston Avenue area in east Columbus and engage in criminal behavior including
murder, robbery, drug trafficking, weapons possession, receiving stolen property, burglary,
and rape.
{¶ 22} Smittle also testified about a subset of the Deuce Deuce Bloods known as the
"Reckless Gang." Id. at 343. Two of its members, Stevphon Calloway and Daren Perry,
were convicted in 2017 of, among other crimes, participating in a criminal gang. Smittle
further averred that CDP has identified Vinson as a member of the Deuce Deuce Bloods
through his social media accounts, photographs of him posing with other gang members,
self-admission to CDP officers, and documented association with Calloway and Perry.
{¶ 23} Smittle further testified that he examined a "gang packet" documenting
appellant's association with Vinson dating back to 2012. Id. at 347. The "gang packet" also
includes Ohio Department of Rehabilitation and Correction ("ODRC") records from 2014
classifying appellant under the "STG Blood gang membership." Id. at 347-48. According
to Smittle, such ODRC classification is one of the qualifiers CDP uses to designate an
No. 21AP-329 8
individual as an "active" or "documented" gang member. Id. at 348. In addition,
appellant's "gang packet" includes allegations of gun use, drug use, and drug trafficking by
both Vinson and appellant, as well as photographs depicting appellant and Vinson together
and/or appellant demonstrating his affiliation with the Deuce Deuce Bloods.
{¶ 24} Smittle identified six photographs which, in his opinion, demonstrated
indicia of appellant's membership in the Deuce Deuce Bloods at the time of the shootings.
State's Ex. P-1, obtained from a social media posting from July 13, 2016, depicts appellant
in a hospital bed; both appellant and an unidentified African American male sitting next to
appellant are displaying gang signs affiliated with the Deuce Deuce Bloods. The posting
includes the phrase "Errrythang Blood money." (Tr. at 351; State's Ex. P-1.) State's Ex. P-
2, taken from a social media posting on August 16, 2016, portrays appellant posing with
documented members of the Deuce Deuce Bloods; most, including appellant, are wearing
red clothing. State's Ex. P-4, mined from a social media posting from January 15, 2017,
shows appellant posing with numerous $100 bills and an automatic handgun. According
to Smittle, this posting demonstrates criminal gang activity in that appellant was "showing
off" by posing with a weapon and cash. (Id. at 353; State's Ex. P-4.) Another photograph,
State's Ex. P-5, shows appellant with the word "Blood" tattooed on the back of his left hand.
(Tr. at 353; State's Ex. P-5.) State's Ex. P-6 is a July 4, 2017 photograph of appellant posing
with Vinson inside a market on Livingston Avenue. Smittle noted that the market is in
Deuce Deuce Bloods' territory and both appellant and Vinson are wearing red clothing. The
final photograph, State's Ex. P-7, taken from appellant's social media posting from
January 9, 2016, shows appellant with two documented members of the Bloods. The
posting includes the phrase "Kooling with the gang." (Tr. at 355; State's Ex. P-7.) According
to Smittle, replacement of the letter "C" is a method employed by Bloods members to
distinguish themselves from a rival gang, the Crips.
{¶ 25} In addition to the foregoing testimony, the parties stipulated, in relation to
the WUD count, that in 2012, appellant was adjudicated a delinquent child for burglary and
in 2017 was indicted for cocaine possession. (State's Ex. 6.) Additionally, the prosecution
moved to incorporate certain testimony9 provided during the Evid.R. 804(B)(6) hearing as
evidence of appellant's consciousness of guilt. Noting the trial court's assertions at the
9 We will provide a detailed recitation of that testimony in our discussion of the second assignment of error.
No. 21AP-329 9
Evid.R. 804(B)(6) hearing that it would not consider this evidence at trial, defense counsel
argued that he would have crafted his questions differently had he known the evidence
would be used at trial. The trial court admitted the evidence, indicating that it would "give
it whatever value I think is appropriate." (Tr. at 638.) The court then stated that it would
allow defense counsel to proffer for the record any additional questions he would have
posed related to that evidence. The record contains no proffer by defense counsel.
{¶ 26} Appellant did not testify and presented no witnesses. He produced evidence
of a search warrant affidavit prepared by Carlson on December 19, 2017 related to the
search of a residence in conjunction with an attempt to arrest appellant (Def.'s Ex. 4), and
an ODRC photograph of Vinson from August 4, 2019 (Def.'s Ex. 5).
{¶ 27} At the conclusion of trial, the trial court found appellant guilty on all counts
and specifications as indicted. At a sentencing hearing held on May 24, 2021, the trial court
imposed an aggregate prison term of 35 years to life and ordered that sentence to be served
concurrently to an aggregate five-year prison term imposed in other cases. The trial court
memorialized the conviction and sentence in an amended judgment entry filed July 21,
2021.
{¶ 28} Appellant timely appeals, setting forth the following seven assignments of
error:
[I]. Defendant-appellant's convictions are not supported by
sufficient evidence to satisfy the requirements of the due
process clause of the Fourteenth Amendment to the United
States Constitution; or, alternatively, are against the manifest
weight of the evidence.
[II]. The Admission of [Jaw.L.'s] police interviews and
pretrial identification violated the rules of evidence and
deprived defendant-appellant of his right to due process and
confrontation under the Sixth and Fourteenth Amendments
to the United States Constitution.
[III]. The trial court's participation in a Crim.R. 16(F)
certification hearing and initiation of its own investigation
into defendant-appellant's alleged culpability for the
unavailability of a state's witness deprived defendant-
appellant of his rights under the due process clause of the
Fourteenth Amendment to the United States Constitution.
No. 21AP-329 10
[IV]. The failure to disclose the trial judge's exposure to highly
inflammatory and prejudicial allegations of gang involvement
and witness intimidation during the Crim.R. 16(F)
certification hearing prior to asking defendant-appellant to
reaffirm his waiver of a jury trial invalidated the waiver and
deprived him of his right to trial by jury under the Sixth and
Fourteenth Amendments to the United States Constitution
and Article I, Section Five of the Ohio Constitution.
[V]. The admission of evidence regarding defendant-
appellant's possession of an unrelated firearm, his alleged
participation in a pattern of criminal gang activity and threats
by anonymous third parties against a witness, violated the
rules of evidence and deprived him of his Fourteenth
Amendment right to due process and a fundamentally fair
trial.
[VI]. The trial court failed in its duty to conduct the four-part
analysis required by Barker v. Wingo, 407 U.S. 514, 92 S.Ct.
2182, 33 L.Ed.2d 101 (1972) when ruling on defendant-
appellant's motion to dismiss for a violation of his Sixth and
Fourteenth Amendment right to a speedy trial.
[VII]. Defendant-appellant was denied his right to the
effective assistance of counsel, as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution,
due to the combined prejudicial impact of several instances of
deficient performance.
{¶ 29} In his first assignment of error, appellant contends that his convictions were
not supported by sufficient evidence and were against the manifest weight of the evidence.
We disagree.
{¶ 30} "The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different." State v. Thompkins, 78 Ohio St.3d 380(1997), paragraph two of the syllabus. "Sufficiency of the evidence is the legal standard that
tests whether the evidence [introduced at trial] is legally adequate to support a verdict."
State v. Kurtz, 10th Dist. No. 17AP-382, 2018-Ohio-3942, ¶ 15, citing Thompkins at 386.
Whether the evidence is legally sufficient to support a criminal conviction is a question of
law, not fact. Id., citing Thompkins at 386. In making that determination, "[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven beyond
No. 21AP-329 11
a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979).
{¶ 31} "In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed but whether, if believed, the evidence
supports the conviction." Kurtz at ¶ 16, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-
Ohio-2126, ¶ 79-80. "The court essentially assumes the state's witnesses testified truthfully
and determines whether that testimony satisfies each element of the crime." State v. Davis,
10th Dist. No. 18AP-921, 2019-Ohio-4692, ¶ 38, citing State v. Bankston, 10th Dist. No.
08AP-668, 2009-Ohio-754, ¶ 4.
{¶ 32} In contrast, a manifest weight of the evidence challenge requires a different
analysis. The weight of the evidence concerns the inclination of the greater amount of
credible evidence offered to support one side of the issue rather than the other. Thompkins
at 387. Although there may be sufficient evidence to support a judgment, an appellate court
may nevertheless conclude that a judgment is against the manifest weight of the evidence.
Id.{¶ 33} An appellate court considering a manifest weight challenge "may not merely
substitute its view for that of the trier of fact, but must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). An
appellate court should reserve reversal of a conviction as being against the manifest weight
of the evidence for only the most " 'exceptional case in which the evidence weighs heavily
against the conviction.' " Thompkins at 387, quoting Martin at 175.
{¶ 34} Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis, i.e., a finding that a
conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency. State v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15,
citing State v. Roberts, 9th Dist. No. 96CA006462 (Sept. 17, 1997). "[T]hus, a
determination that a conviction is supported by the weight of the evidence will also be
No. 21AP-329 12
dispositive of the issue of sufficiency." Id., citing Roberts. Accordingly, we will first
examine whether appellant's convictions are supported by the manifest weight of the
evidence. State v. Sowell, 10th Dist. No. 06AP-443, 2008-Ohio-3285, ¶ 89.
{¶ 35} Appellant does not contest the evidence establishing that on December 4,
2017, an individual filed multiple shots from the window of a gray Chevy Malibu at the
occupants of a Honda CR-V traveling behind it and that the shooting ultimately resulted in
the deaths of Q.S. and S.C. Save for the gang specifications, appellant does not argue that
such evidence is insufficient to prove the elements of the offenses for which he was
convicted. Rather, appellant argues that the prosecution failed to prove that he was the
shooter. Specifically, appellant argues that the prosecution primarily relied on two pieces
of evidence to establish that he was the shooter, i.e., Jaw.L.'s identification of him in the
photo array and the presence of his DNA on the hat found on the ground near the scene.
Appellant maintains that neither establish his identity as the shooter beyond a reasonable
doubt.
{¶ 36} In a criminal matter, the prosecution must prove every element of the crime
charged beyond a reasonable doubt, including the identity of the person who committed
the crime. State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, ¶ 15; State v. Johnson, 9th
Dist. No. 13CA010496, 2015-Ohio-1689, ¶ 13 (identity of the perpetrator is an essential
element that must be proved beyond a reasonable doubt). As with any other element of a
crime, identity of the perpetrator may be established by direct or circumstantial evidence.
State v. Watkins, 10th Dist. No. 14AP-807, 2016-Ohio-1029, ¶ 22, citing State v. Mickens,
10th Dist. No. 08AP-626, 2009-Ohio-1973, ¶ 18. Direct evidence exists when a witness
testifies about "a matter within the witness's personal knowledge such that the trier of fact
is not required to draw an inference from other evidence to the proposition that is offered
to establish." State v. Cassano, 8th Dist. No. 97228, 2012-Ohio-4047, ¶ 13. Circumstantial
evidence, on the other hand, is the "proof of facts by direct evidence from which the trier of
fact may infer or derive by reasoning other facts in accordance with the common experience
of mankind." (Further citations omitted.) State v. Wright, 10th Dist. No. 18AP-770, 2019-
Ohio-5201, ¶ 22, quoting State v. Robinson, 10th Dist. No. 17AP-5, 2018-Ohio-1809, ¶ 20.
Direct and circumstantial evidence are of equal evidentiary value. Robinson at ¶ 20, citing
Jenks, 61 Ohio St.3d at 272. "Although there are obvious differences between direct and
No. 21AP-329 13
circumstantial evidence, those differences are irrelevant to the probative value of the
evidence." Cassano at ¶ 13, citing State v. Treesh, 90 Ohio St.3d 460, 485 (2001).
{¶ 37} Here, Jaw.L.'s identification of appellant in the photo array constitutes direct
evidence establishing appellant's identity as the shooter. "While identity is an element that
must be proven by the state beyond a reasonable doubt, the credibility of witnesses and
their degree of certainty in identification are matters affecting the weight of the evidence."
State v. Reed, 10th Dist. No. 08AP-20, 2008-Ohio-6082, ¶ 48.
{¶ 38} Appellant challenges Jaw.L.'s photo array identification as unreliable. The
factors that must be considered when evaluating reliability are: (1) the witness's
opportunity to view the offender at the time of the crime; (2) the witness's degree of
attention at the time of the crime; (3) the accuracy of the witness's prior description of the
offender; (4) the witness's level of certainty when identifying the suspect at the
confrontation; and (5) the length of time that has elapsed between the crime and the
confrontation. State v. Glenn-Coulverson, 10th Dist. No. 16AP-265, 2017-Ohio-2671, ¶ 52,
citing State v. Monford, 190 Ohio App.3d 38, 2010-Ohio-4732, ¶ 39 (10th Dist.).
{¶ 39} Here, Jaw.L. indicated during the photo array procedure, held ten days after
the shootings, that he observed the shooter for 4 or 5 seconds before he began firing
multiple shots at the CR-V. Appellant argues that Jaw.L.'s initial statements that
photographs 1, 2, 4, and 6 "looked familiar," that he was uncertain whether he had seen #6
prior to the shooting, and that he could not explain why he believed #6 was the shooter
demonstrate "a high degree of hesitation and uncertainty regarding his ability to identify
the shooter." (Appellant's Am. Brief at 7.) However, later in the photo array procedure,
Jaw.L. definitively identified #6 as the shooter and confirmed to Carlson that he was
positive in his identification.
{¶ 40} Moreover, even if there was some hesitation or uncertainty in Jaw.L.'s
identification, " '[a] witness need not be free from doubt when identifying the perpetrator
of a crime.' " State v. Tucker, 10th Dist. No. 15AP-434, 2016-Ohio-1033, ¶ 13, quoting State
v. Cameron, 10th Dist. No. 10AP-240, 2010-Ohio-6042, ¶ 31. " '[A factfinder is] not so
susceptible that [it] cannot measure intelligently the weight of identification testimony that
has some questionable feature.' " State v. Coleman, 10th Dist. No 99AP-1387 (Nov. 21,
2000), quoting Manson v. Brathwaite, 432 U.S. 98, 116 (1977). Here, the trial court, as
No. 21AP-329 14
finder of fact, was in the best position to assess the evidence offered at trial in finding
Jaw.L.'s photo array identification testimony to be credible, and such determination is
entitled to great deference from a reviewing court. State v. Taylor, 10th Dist. No. 14AP-
254, 2015-Ohio-2490, ¶ 37.
{¶ 41} Appellant also argues that Jaw.L.'s statements in his police interviews cast
doubt on his photo array identification. Appellant first challenges Jaw.L.'s statement that
he "got a glimpse" of the shooter's face when the shooter leaned out of the window
brandishing a firearm. (Tr. at 691, 701.) Appellant asserts it was unlikely Jaw.L. ever saw
the shooter's face, given his statement that he ducked down when the shooter leaned out
the window. However, we note that Jaw.L. also averred that Q.S. pushed him down on the
seat after the bullets began hitting the car's windows. Under this scenario, Jaw.L. could
have seen the shooter's face in the seconds before Q.S. pushed him down. The trial court,
as the trier of fact, was in the best position to assess these seemingly inconsistent statements
and resolve or discount them accordingly. State v. Nivens, 10th Dist. No. 95APA09-1236,
(May 28, 1996).
{¶ 42} Appellant next argues that he does not fit the physical description of the
shooter Jaw.L. provided during his police interviews. Jaw.L. stated that the shooter was a
shade or two darker than himself. Appellant argues that a comparison of Jaw.L.'s skin tone
in the video recordings of the police interviews with photographs of appellant from the
"gang packet" establishes that appellant has a lighter complexion than Jaw.L. We find no
merit in such comparison, given that the video recordings and the "gang packet"
photographs were taken at different times, in different settings, with different photographic
equipment, and with different lightings. Moreover, the trial court viewed the video
recordings of Jaw.L.'s interviews, saw the photographs of appellant included in the "gang
packet," and, as trier of fact, was in the best position to assess this evidence and assign it
whatever weight it deemed appropriate.
{¶ 43} Appellant next points to Jaw.L.'s averment regarding the shooter's possible
involvement with the westside Hot Boys gang. Appellant notes Smittle's testimony about
appellant's association with a different gang, the Deuce Deuce Bloods, and his testimony
that Carlson never asked him to follow up on the Hot Boys. Appellant also maintains that
No. 21AP-329 15
Carlson never investigated the members of the Hot Boys gang Jaw.L. mentioned in his
police interviews.
{¶ 44} We note initially that Jaw.L.'s speculation about the Hot Boys appears to be
based on the fact that he frequently saw the Malibu in Hot Boys' territory, i.e., the west side
of Columbus; further, he mentioned the names of Hot Boys members only in response to
Carlson's question about possible conflicts with others. In neither circumstance did he
definitively state that the shooter was a member of the Hot Boys. Indeed, he stated that he
had never seen the shooter before that day. Further, as to Carlson's alleged failure to
investigate the Hot Boys, we note Carlson's testimony that she investigated the named
individuals but found no connection between them and the shootings. To the extent
appellant suggests that Carlson's investigation into the Hot Boys was inadequate, we note
that there is no accepted standard procedure governing police investigation. State v.
Komora, 11th Dist. No. 96-G-1994 (Apr. 4, 1997). Further, "[t]he weight to be given any
failure by the police officers to employ adequate investigative techniques is for the [trier of
fact] to determine." Id., citing State v. Larry, 10th Dist. No. 95APA11-1418 (June 5, 1996).
{¶ 45} Finally, appellant argues that Jaw.L.'s statements to the police undermine his
photo array identification because his description of the hat worn by the shooter, i.e., a
"black skull cap type thing," (Tr. at 480; State's Ex. Y-1) does not match Carlson's
description of the hat found at the scene, i.e, a "black beanie with gray trim" and "a gray
fuzzy on top." (Tr. at 556-567; State's Ex. B-38.) We agree with the state that semantics
regarding the precise description of the hat is far less important than the fact that Jaw.L.
correctly described the shooter as wearing a hat. Further, the trial court heard Jaw.L.'s
description of the hat, Carlson's description of the hat, and observed the hat at trial. (State's
Ex. B.)
{¶ 46} Turning to appellant's specific contentions regarding the hat itself, he
correctly notes that "[t]here was no direct evidence that the hat was left at the scene by one
of the shooters." (Appellant's Am. Brief at 9.) However, circumstantial evidence establishes
that fact. The hat was found in the street near the scene of the shootings, and Jones testified
that it was "clean" and not "weathered," which suggested to him that it had not been in the
street very long. In addition, other circumstantial evidence pertaining to the hat establishes
that appellant was the shooter. Jaw.L. mentioned only one person firing shots out of the
No. 21AP-329 16
window of the Malibu, and he described the shooter as wearing a hat. The trial court, as
trier of fact, could thus infer that the shooter lost his hat while leaning out the window.
Moreover, and more importantly, appellant's DNA was found on the hat. Smith, the DNA
analyst, testified that the hat contained DNA from two individuals and that appellant could
not be excluded as the major contributor. Indeed, Smith opined that it was at least "292
octillion times" more likely that appellant was only one of the contributors than if the
mixture was from two unknown, unrelated individuals. She further opined that Vinson
could be excluded as a major contributor. Appellant challenges the DNA evidence on
grounds that Smith admitted that appellant was one of two contributors to the mixture of
DNA found on the hat, that others could have come in contact with the hat without
depositing their DNA, that unswabbed portions of the hat could contain DNA from another
major contributor, and that the DNA testing process could not definitively demonstrate
when a particular DNA specimen was deposited. The trial court, as trier of fact, was free
to believe all, part, or none of Smith's testimony. State v. Moore, 10th Dist. No. 19AP-464,
2021-Ohio-1379, ¶ 34.
{¶ 47} Appellant's final argument under his first assignment of error is that the
prosecution failed to prove the gang specifications attached to his convictions for murder,
attempted murder, felonious assault, and discharging a firearm into a habitation. We
disagree.
{¶ 48} Ohio's gang specification statute authorizes a trial court to impose an
additional mandatory prison term of one, two, or three years upon an offender who
commits a felony offense of violence "while participating in a criminal gang." R.C.
2941.142; 2929.14(G).
{¶ 49} R.C. 2923.41(A) defines "criminal gang" and provides:
(A) "Criminal gang" means an ongoing formal or informal
organization, association, or group of three or more persons to
which all of the following apply:
(1) It has as one of its primary activities the commission of one
or more of the offenses listed in division (B) of this section.
(2) It has a common name or one or more common, identifying
signs, symbols, or colors.
No. 21AP-329 17
(3) The persons in the organization, association, or group
individually or collectively engage in or have engaged in a
pattern of criminal gang activity.
{¶ 50} Appellant does not dispute that the prosecution established through
testimony that the Deuce Bloods meet the definition of "criminal gang" under R.C.
2923.41(A) or that he is a documented member of that criminal gang. Instead, appellant
maintains that the prosecution failed to prove that the shootings were "gang related."
Specifically, appellant asserts that "[c]ourts in other jurisdictions have construed gang
penalty enhancement statutes as requiring some proof that the underlying offense was
'gang related' in order to survive constitutional scrutiny. * * * To avoid constitutional
concerns, the Ohio gang specification statute must be construed as requiring that the
underlying offense must be 'gang related.' " (Appellant's Am. Brief at 14-15.) Initially, we
note that appellant did not raise a constitutional objection to the gang specifications at trial.
" 'A constitutional issue not raised at trial "need not be heard for the first time on appeal." ' "
Glenn-Coulverson, 10th Dist. No. 16AP-265, 2017-Ohio-2671, at ¶ 60, quoting State v.
Douglas, 10th Dist. No. 09AP-111, 2009-Ohio-6659, ¶ 61, quoting State v. Awan, 22 Ohio
St.3d 120 (1986), syllabus.
{¶ 51} Furthermore, appellant's argument requires that we adopt legal standards
established in other jurisdictions. This court, however, is bound by legal principles
established in this state by the General Assembly, the Supreme Court of Ohio, and our own
decisions. Initially, we note that the General Assembly did not include the term "gang
related" in the text of R.C. 2941.142(A). Further, this court has held that R.C. 2941.142(A)
as written is constitutional. State v. Hairston, 10th Dist. No. 08AP-735, 2009-Ohio-2346,
¶ 55-56.
{¶ 52} In addition, this court has affirmed gang specification convictions without
any reference to the underlying offense being "gang related." In State v. Wade, 10th Dist.
No. 16AP-674, 2018-Ohio-976, Wade argued that the state failed to prove that he
committed the crimes for which he was convicted "while participating in" the gang. Id. at
¶ 47. Wade maintained that proof of that element would require a nexus between the
offenses and his gang membership. Id. In rejecting that argument, we noted the state's
evidence establishing Wade's membership and participation in gang-related crime in which
Wade was involved, photographs taken from social media websites depicting Wade with
No. 21AP-329 18
other known gang members, displaying gang signs and holding firearms, and
documentation regarding Wade's gang membership which included non-criminal incidents
in which Wade frequented known gang hangouts or congregated with other gang members.
Id. at ¶ 49. We stated:
Evidence of this nature has been held sufficient, when
considered in conjunction with the nature of the crime, to
establish gang specifications. See, e.g., State v. Harris, 10th
Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 27; State v. Dantzler,
10th Dist. No. 14AP-907, 2015-Ohio-3641, ¶ 30; State v.
Peterson, 10th Dist. No. 07AP-303, 2008-Ohio-2838, ¶ 80-81.
The state was not required to present evidence indicating that
Wade overtly declared that he was committing the crime while
participating as a gang member, and the jury could draw the
necessary inference based upon testimony, circumstantial
evidence, and the nature of the crime.
Id. at ¶ 50.
{¶ 53} As in Wade, Smittle's testimony, when considered in conjunction with the
nature of the crimes committed, sufficiently establishes the gang specifications. As noted
earlier, Smittle testified that the Deuce Deuce Bloods have an active membership of
approximately 16 persons and engage in criminal behavior including murder, robbery, drug
trafficking, weapons possession, receiving stolen property, burglary, and rape. Members
typically identify with the color red, incorporate that color into their apparel, and designate
their membership using tattoos and hand signals. As to appellant's affiliation with the
Deuce Deuce Bloods, Smittle testified that appellant's "gang packet" includes
documentation of his long-time association with Vinson, a known Deuce Deuce Bloods
gang member, appellant's participation in gang-related crimes, photographs depicting
appellant wearing red clothing while associating with Vinson and other gang members,
displaying Bloods gang signs and a Bloods tattoo on his hand, and using Bloods-associated
language. Smittle also testified that past ODRC records classified appellant as a member of
the Bloods.
{¶ 54} For the reasons set forth above, we cannot find that appellant's convictions
for murder, attempted murder, felonious assault, discharging a weapon into a habitation,
and WUD, and the attendant specifications, including the gang specifications, were not
supported by sufficient evidence or were against the manifest weight of the evidence.
{¶ 55} The first assignment of error is overruled.
No. 21AP-329 19
{¶ 56} In his second assignment of error, appellant contends that the trial court
erred in admitting the video recordings of Jaw.L.'s statements to the police. More
particularly, appellant maintains the statements were not admissible under Evid.R.
804(B)(6) and that such evidence violated his Sixth Amendment right to confront the
witnesses against him. Appellant also claims that the trial court erred in overruling his
motion to suppress Jaw.L.'s photo array identification. We disagree.
{¶ 57} We first address appellant's contentions pertaining to the admission of the
video recordings of Jaw.L.'s statements to the police. Initially, we note that " '[b]ecause
testimony may be admissible under the Confrontation Clause yet inadmissible under the
rules of evidence, and vice versa, the declarant's statements must fall within the
constitutional requirements and the rules of evidence to be admissible.' " (Emphasis sic.)
State v. Miller, 9th Dist. No. 14CA010556, 2016-Ohio-4993, ¶ 11, quoting State v. Nevins,
171 Ohio App.3d 97, 2007-Ohio-1511, ¶ 36 (2d Dist.) As a result, we consider appellant's
evidentiary and constitutional challenges to the admission of Jaw.L.'s statements
separately. See State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, ¶ 84, 103 (considering
first whether challenged out-of-court statements were admissible under Evid.R. 804(B)(6)
and second whether their introduction was consistent with the Confrontation Clause).
{¶ 58} 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 statements are inadmissible except as otherwise
provided in the Ohio Rules of Evidence or other relevant constitutional or statutory
provisions. Evid.R. 802. Here, the trial court allowed Jaw.L.'s hearsay statements to be
offered against appellant pursuant to the forfeiture by wrongdoing exception set forth in
Evid.R. 804(B)(6). That rule provides in part:
The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
Forfeiture by wrongdoing. A statement offered against a
party if the unavailability of the witness is due to the
wrongdoing of the party for the purpose of preventing the
witness from attending or testifying.
(Emphasis sic.)
No. 21AP-329 20
{¶ 59} Forfeiture by wrongdoing is an equitable exception to a defendant's
constitutional right to confront the witnesses against him. State v. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, ¶ 96, citing Giles v. California, 554 U.S. 353, 366 (2008). The
doctrine is codified in Evid.R. 804(B)(6), which permits the prosecution to use hearsay
statements of an unavailable witness if the prosecution can show by a preponderance of the
evidence that "(1) the defendant engaged in wrongdoing that caused the witness to be
unavailable and (2) one purpose for the wrongdoing was to make the witness unavailable
to testify." McKelton at ¶ 96, citing State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 106,
and Hand at ¶ 84. The prosecution need not establish that the defendant's sole purpose
was to prevent the witness from testifying; it need only show that the defendant's
wrongdoing which caused the witness's unavailability "was motivated in part by a desire to
silence the witness." Hand at ¶ 84, 90.
{¶ 60} Although a trial court's hearsay rulings are generally reviewed for an abuse of
discretion, "we review de novo evidentiary rulings that implicate the Confrontation Clause."
McKelton at ¶ 97, citing United States v. Henderson, 626 F.3d 326, 333 (6th Cir.2010).
{¶ 61} At the prosecutor's request, the trial court conducted an Evid.R. 804(B)(6)
hearing relative to Jaw.L.'s unavailability to testify at trial. At the outset of that hearing, the
court averred that "[n]one of this will be used to impeach the defendant or anything else
like that. This is strictly for the purposes of determining availability and the causation. At
least that's how I understand it." (Apr. 21, 2021 Mot. Hearing Tr. at 4.) In addition, the
court stated, "I just wanted to make sure that the defendant understood that the purpose of
this [hearing] is to determine this initial question. * * * [I]t's not necessarily attacking his
character or anything. * * * It's whether or not you have sufficient reasons to permit me to
exercise the exception [to the hearsay rule]." Id. at 5.
{¶ 62} Prior to calling his first witness, the prosecutor proffered for the record the
events that led to the filing of the request for an Evid.R. 804(B)(6) hearing. To that end,
the prosecutor recounted that on the first day of trial, he received information that Jaw.L.
had received death threats related to his impending testimony; the trial court gave the
prosecutor time to place Jaw.L. in protective custody. The prosecutor further related that
he told defense counsel that Jaw.L. was cooperative and ready to testify, but he did not want
defense counsel to share that information with appellant due to concerns for Jaw.L.'s safety.
No. 21AP-329 21
{¶ 63} Following this proffer, the trial court, addressing defense counsel, stated: "I
want to make one thing clear. * * * Normally if we were in a jury trial, I would have the jury
exit and we would do this hearing. Since I'm both trier of fact and judge, I can separate the
two. So this is like a mini hearing inside of a trial, and I wanted to make sure your client
understood that * * * [i]t's not going to be judged in his case in chief." (Mot. Hearing Tr. at
8-9.) Defense counsel averred that he had informed appellant that the evidence presented
at the hearing would not be used by the court in determining his guilt or innocence. The
court reiterated that the evidence "[is] not being used on the score card * * * on the trial.
It's strictly to deal with evidentiary issues." Id. at 9.
{¶ 64} Following this preliminary discussion, the prosecutor presented the
following evidence.
{¶ 65} Shelley Hughes testified that she was Jaw.L.'s former juvenile probation
officer. As such, she was well-acquainted with Jaw.L. and remained in contact with him
after he was released from probation. At the prosecutor's request, Hughes contacted Jaw.L
and urged him to cooperate with the prosecution's investigation into the shootings. Jaw.L.
met with prosecutors and provided his version of the events of December 4, 2017. The case
was eventually set for trial on April 19, 2021. On March 4, 2021, prosecutors again met with
Jaw.L.; at his request, Hughes sat in on the meeting. Prosecutors told Jaw.L. that a
subpoena would issue compelling his testimony at trial and that failure to comply with the
subpoena would result in the issuance of a warrant for his arrest. According to Hughes,
Jaw.L. understood the consequences of his failure to honor the subpoena and was
cooperative and willing to testify.
{¶ 66} On April 4, 2021, Hughes informed prosecutors that Jaw.L. told her he had
received some "indirect threats" through social media. Id. at 14. At the request of
prosecutors, Hughes met with Jaw.L. in person on April 16, 2021. During a three-way
telephone conversation between Hughes, Jaw.L., and prosecutors, Jaw.L. asserted that he
would testify at trial. Hughes and the prosecutors assured Jaw.L. that they would not tell
anyone about the meeting. According to Hughes, during the meeting, Jaw.L. was "very
relaxed * * * willing to cooperate * * * [and] 100 percent in agreement with [testifying]." Id.
at 15.
No. 21AP-329 22
{¶ 67} Thereafter, on April 19, 2021, the day trial commenced, Hughes received a
text message from Jaw.L. stating, "[t]hings are real bad." Id. Hughes immediately called
Jaw.L., who reported that he had received "death threats" via text messages and a telephone
call from an unknown private number. Id. at 15-16. Jaw.L. told Hughes that the caller
warned that "if he testified, he would be dead by Friday." Id. at 16. According to Hughes,
Jaw.L. was "very upset, very nervous," and told Hughes he was not going to testify. Id. at
15. Perceiving the threats to be genuine, Hughes immediately contacted prosecutors and
reported what Jaw.L. had told her.
{¶ 68} Soon thereafter, Hughes contacted Jaw.L. to check on his well-being. He told
Hughes he had received a letter via text message and that "they knew everything," including
that he had met with prosecutors and Hughes. Id. at 17. He further averred that the letter
contained information only appellant would know. Jaw.L. further reported that he was
being followed and that "they" knew where he lived and what he had for dinner the previous
evening. Id. According to Hughes, Jaw.L. was "extremely worried" and told Hughes he did
not want to testify. Id. at 17-18. Thereafter, prosecutors and Hughes made "significant
efforts" to persuade Jaw.L. to testify. Id. at 18. Hughes opined that but for the letter and
the telephone call, Jaw.L. would have testified.
{¶ 69} On cross-examination, Hughes averred that Jaw.L. was served with a
subpoena at the March 4, 2021 meeting. She acknowledged that Jaw.L. did not tell her on
what social media platform the anonymous threats were posted, that he had never sent her
screenshots of the text messages or forwarded them to her, and that she had never viewed
Jaw.L.'s phone. She further acknowledged that she did not know whether Jaw.L. had told
anyone else about his meeting with her and the prosecutors.
{¶ 70} Detective Robert C. Vass testified that he was assigned to the CIU for
approximately eight and one-half years prior to his current assignment as a SWAT officer.
Vass provided general testimony about both CIU and SWAT involvement in assessing the
validity and credibility of threats made to cooperating witnesses and placement of those
witnesses in protective custody if necessary. Vass also testified generally that incarcerated
gang members are often able to communicate with unincarcerated gang members.
{¶ 71} Specific to this case, Vass testified that he became familiar with the Deuce
Deuce Bloods when he worked in CIU and in that capacity had testified as an expert
No. 21AP-329 23
regarding their criminal gang activity. He remains in contact with gang members in his
capacity as a SWAT officer executing both search warrants and arrest warrants. Vass
described the Deuce Deuce Bloods as a "violent gang." Id. at 26. On April 19, 2021, Vass
was asked to conduct a threat assessment regarding an individual who was scheduled to
testify in a homicide case involving the Deuce Deuce Bloods. Vass interviewed the
individual, later identified as Jaw.L., at an undisclosed location on the afternoon of April 19,
2021. During that interview, Jaw.L. stated that he had received an anonymous telephone
call that morning; the caller warned him not to testify, stating specifically that he "wouldn't
make it until the end of the week" if he did so. Id. at 33. Jaw.L. also showed Vass a
screenshot of a handwritten letter he had received via text message on his phone. (State's
Ex. Z-1.) Vass averred that he later met with the prosecutor and Jaw.L. at an undisclosed
location to discuss the contents of the letter. Because the letter was difficult to read on
Jaw.L.'s phone, Vass had the letter transcribed. (State's Ex. Z-2.) Vass read the transcribed
version of the letter into the record. It states in its entirety:
Babe, I just started my hole time. * * * I miss you so much. I'm
in here going through it. I don't know what's about to happen.
My lawyers just came down here and they said some BS. I'm
really about to go on the 19th though, but they said that
[Jaw.L.] met with the prosecutor and his PO and said he is
coming. At least that's what the prosecutor told my lawyer.
He told them that it's a lot of pressure about him coming to
court.
He said like three different names in an interview and never
once said mine until they got him alone, and they covered up
that statement. They said they will let me see it next week.
They still said don't worry about Black [Vinson] though.
Baby, I need you to hop on some 'you want your [N word]
home' type shit. I know you do, but I need you to get super
aggressive with all my brothers, and like as soon as you get
this letter, AND DON'T LET UP!!10 They not going to get mad
at you. And if they do * * *.
You want your [N word] here, period. Call Dog, Wop, and Nut
Box and then tell them you got to do something about this
10In State's Ex. Z-1 and Z-2, the phrase "and don’t let up" appears in uppercase letters, followed by two
exclamation points. The same phrase appears in the hearing transcript in lowercase letters without the
exclamation points.
No. 21AP-329 24
little [N word]. And don't call like I'm telling you to call; call
like you want your [N word] home. Use your own words and
blow down on them [N word]. Let them know you mad they
ain't doing nothing. They ain't got no choice but to respect it.
Tell Dog and Wop who Nut Box is * * * and tell them he can
get to the [N word] easy, and tell them it can't be no violence.
Tell them a bad pill or a nap * * * until it's over, and then let
him go. Tell them Nut Box can put it together.
Please don't let this slip your mind, momma. This is my last
chance. Call Nut Box and tell him what the [N word] said to
the prosecutor, but tell him don't say nothing to the [N word],
just keep him close.
If you get that money you was supposed to get, tell Nut you
like got three racks to make sure dude pop a pill or something.
And if he with it, let Dog know to tell them to put something
together, or you can get one of them girls you be with to pull
up on Nut to make sure.
Id. at 36-38; State's Ex. Z-2.
{¶ 72} Vass interpreted several of the phrases contained in the letter. For example,
Vass stated that the phrase "hole time" meant "a location inside the jail," and that "nap"
meant "kidnap." Id. at 36, 37. Vass construed the phrase "super aggressive with all my
brothers" to mean "don't wait. Get the crew [meaning other gang members] together and
* * * go find this kid." Id. at 39-40. Vass translated the phrases "don't let up" and "be
aggressive" to mean "you've * * * got to do it now. I'm running out of time. It's got to be
done right away." Id. at 40. According to Vass, the reference to getting "one of them girls
* * * to pull up" meant that "females * * * can get closer to the guys, make them relax, get
them to drop their guard and get them intoxicated; and then the gang members will come
in and commit the crime." Id. at 44. The reference to "a bad pill or a nap until it's over"
meant that someone would give the target a drug like ecstasy to make the target incoherent
so that the target could be moved from one location to another until the legal proceedings
were completed. Id. at 43. Vass translated the reference to "three racks" as meaning that
$3,000 would be paid to complete the kidnapping; according to Vass, 1 "rack" equals
$1,000. Id.
No. 21AP-329 25
{¶ 73} Vass averred that Jaw.L. took the threats very seriously and was "terrified"
that he was going to be killed by the end of the week if he testified. Id. at 44. According to
Vass, Jaw.L.'s main concern was that since he could not identify the person or persons
responsible for the threats, he was afraid the person or persons would be able to get close
to him without him knowing he was in danger.
{¶ 74} Vass stated that he and other officers spent over two hours on April 19, 2021
urging Jaw.L. to testify, but he continually refused to do so. Indeed, according to Vass,
"[Jaw.L.] got to the point where he was like, "[j]ust throw me in jail if you have to, but I'm
not testifying." Id. at 45. When Vass left that evening, Jaw.L. remained uncooperative and
refused to testify.
{¶ 75} The next day, April 20, 2021, Vass and other officers again contacted Jaw.L.
and urged him to testify. Vass explained all available options for ensuring Jaw.L.'s safety,
including placing him in protective custody, moving him to another location, and providing
him financial assistance. Jaw.L. steadfastly refused to testify, stating he just needed to
"move on" and "get away from all of this." Id. at 46. The next day, April 21, 2021, Vass sent
Jaw.L. a text message at approximately 6:00 a.m.; Jaw.L. responded that he was planning
to leave protective custody. Shortly thereafter, Vass learned that Jaw.L. had left protective
custody and refused further assistance from CDP.
{¶ 76} On cross-examination, Vass averred that he had not taken screenshots of
Jaw.L.'s phone and did not have Jaw.L. show him the alleged social media threats on his
phone. According to Vass, the only thing he saw on Jaw.L.'s phone was the hand-written
letter.
{¶ 77} The parties stipulated to State's Ex. Z-3, an April 2, 2021 entry from the
Franklin County jail establishing that appellant was in "lockdown" at the jail from March 30
to April 9, 2021.
{¶ 78} Following presentation of the evidence and arguments by counsel, the trial
court issued an oral decision granting the prosecutor's Evid.R. 804(B)(6) motion. The trial
court began its analysis by stating that it had compared the handwriting in a pro se motion
to dismiss appellant previously filed in the case to the handwriting in the letter Jaw.L.
received via text message. The court concluded that the handwriting "appears to be the
same." (Mot. Hearing Tr. at 74.) The court averred that the motion to dismiss was a matter
No. 21AP-329 26
of court record and that "it's one of those things that as a trier of fact I can make the
comparison, even though it wasn't proffered by you all." Id.
{¶ 79} The court then permitted argument on the matter. To that end, defense
counsel asserted that the motion to dismiss could not be considered because it was extrinsic
evidence. The court responded, "[i]t's part of the Court record, so it's not extrinsic." Id.
Next, defense counsel argued that the motion had not been marked as an exhibit for
purposes of appeal. The court countered that the motion had been marked as "Court
Exhibit Alpha." Id. Defense counsel then contended that any handwriting analysis
required expert testimony. The trial court asserted that case law established that "the trier
of fact can make that comparison on handwriting," and that "experts only testify what to
look for, and unfortunately I've probably heard about 50 of these." Id. The court further
stated that appellant "has very distinctive D's * * * [and] E's and lower casings * * * and they
seem to compare." Id.
{¶ 80} The trial court averred that it made the comparison to benefit and protect
appellant:
I [made the comparison] more in an interest of protecting
[appellant]. Because as it stood right now, indications
factually were that that letter was from him. How he got it is
secondary. Okay?
He got it in a text. So I was just verifying, trying to protect
your client to try to find an out for him, and unfortunately it
looked like it's the same handwriting.
And since it was a motion, I think I can consider that evidence,
because it's not part of the factual trial.
In all candor, I was doing it for the benefit of [appellant] just
to make sure. Because factually, there were things related in
that letter that only he would know. And * * * I also had the
concerns of him discussing your conversations.
Id. at 76.
{¶ 81} The court assured defense counsel that "none of this is being considered for
the trial aspect of it. * * * This has nothing to do with the credibility of what that witness
was." Id.
No. 21AP-329 27
{¶ 82} The court then reiterated its justification for conducting the handwriting
comparison:
[I]t is part of the public record. It was on [appellant's] own
volition that he submitted the sample. Okay?
And, yeah, it wasn't presented by the State, but, you know, this
is a hearing and the State has their burden met. Okay? I was
just seeing an independent veracity of the letter. That's what
I was after. So it was actually for the benefit of your client.
Unfortunately, it didn't work out that way.
Id. at 77.
{¶ 83} Following this discussion, the court granted the prosecution's motion and
permitted the admission of Jaw.L.'s videotaped police interviews (State's Exs. Y-1 and Y-2)
and the audiotaped photo array procedure. (State's Ex. Y-3.)
{¶ 84} Appellant's hearsay-based argument is two-fold. First, appellant contends
that it was receipt of the threatening telephone calls and text messages from unknown
individuals, and not receipt of the letter, that prompted Jaw.L.'s decision not to testify.
Appellant notes Hughes's testimony that Jaw.L. told her he could not identify the
threatening caller and the admissions by both Hughes and Vass that they did not preserve
screenshots of the text messages. Appellant maintains that because the threatening calls
and text messages could not be traced to appellant, the prosecution failed to establish that
he engaged in wrongdoing that resulted in Jaw.L.'s unavailability to testify at trial.
Appellant further contends that even assuming he authored the letter, he instructed the
recipient to tell the putative kidnappers (Dog, Wop, and Nut Box) not to use violence; thus,
any violence by the putative kidnappers was not authorized and thus could not be imputed
to him. We reject appellant's argument on both points.
{¶ 85} It is clear from the trial court's statements that it granted the Evid.R.
804(B)(6) motion based upon the letter and not the threatening phone calls or text
messages. Indeed, the trial court averred that it had examined the letter and compared the
handwriting therein to appellant's hand-written pro se motion to dismiss filed earlier in the
proceedings. The trial court went to great lengths to explain its reasoning for making the
handwriting comparison. The trial court did not mention the threatening phone calls or
text messages in its analysis.
No. 21AP-329 28
{¶ 86} Further, we find no merit to appellant's argument that the letter did not prove
that he engaged in wrongdoing that resulted in Jaw.L.'s unavailability because the letter did
not authorize violence against Jaw.L. Although the letter references "no violence," the letter
urges the recipient to engage Dog, Wop, and Nut Box in a plot to kidnap Jaw.L. and hold
him until the trial concluded. As pointed out by the state in its briefing, kidnapping is an
offense of violence. R.C. 2905.01(A); 2901.01(A)(9)(a). Further, Evid.R. 804(B)(6) "covers
a variety of wrongdoing beyond the murder or physical assault of the declarant." State v.
Harper, 6th Dist. No. L-15-1310, 2017-Ohio-1395, ¶ 31. See also State v. Miller, 9th Dist.
No. 14CA010556, 2016-Ohio-4993, ¶ 15 ("a review of the staff notes to Evid.R. 804(B)(6)
as well as Ohio case law reveals that the rule is intended to cover more situations than
simply those that implicate the murder or serious assault of the declarant. The 2001 Staff
Note to Evid.R. 804(B)(6) states that 'the wrongdoing need not consist of a criminal act.' ").
In light of this authority, we reject appellant's argument that evidence of a kidnapping plot,
even one without "violence," is insufficient to support the trial court's finding that he
engaged in wrongdoing for the purpose of making a witness unavailable for trial.
{¶ 87} Appellant also argues that the prosecution failed to establish Jaw.L.'s
unavailability to testify. "Unavailability" is defined, as pertinent here, as including
situations in which the declarant "is absent from the hearing and the proponent of the
declarant's statement has been unable to procure the declarant's attendance * * * by process
or other reasonable means." Evid.R. 804(A)(5).
{¶ 88} The burden is on the proponent of the evidence to establish unavailability,
and, in the criminal setting, a witness is only considered unavailable if the prosecution has
made reasonable, good-faith efforts to secure his or her presence at trial. State v. Keairns,
9 Ohio St.3d 228, 230 (1984), citing Ohio v. Roberts, 448 U.S. 56 (1980). The measures
the prosecution must undertake in order to fulfill its burden of reasonableness and good
faith depend on the facts and circumstances of each case. State v. Tabor, 12th Dist. No.
CA2011-07-076, 2012-Ohio-4642, ¶ 14.
{¶ 89} Appellant acknowledges Hughes's testimony that the prosecution served
Jaw.L. with a subpoena to compel his testimony. However, citing Keairns, appellant argues
that "the issuance of a subpoena alone does not constitute a sufficient effort when other
reasonable methods are also available." (Appellant's Am. Brief at 21.)
No. 21AP-329 29
{¶ 90} We first note that appellant's reliance on Keairns for its subpoena-only
argument is unavailing. There, the prosecution offered no sworn testimony of its efforts to
locate the witness. The sole support offered consisted of representations of the prosecutor
that subpoenas had been issued and that he had asked the sheriff to make a continued
search for the witness. The court stated that "[a] showing of unavailability under Evid.R.
804 must be based on testimony of witnesses rather than hearsay not under oath unless
unavailability is conceded by the party against whom the statement is being offered."
Keairns at 232. The court found that the prosecutor's representations had not met that
requirement. The court further found that the prosecutor's "continued search" statement
lacked sufficient particularity to allow the court to determine what steps had been taken
and whether they were reasonable. Id. The court ultimately found that "the issuance of a
subpoena alone does not constitute a sufficient effort when other reasonable means are also
available." Id.{¶ 91} Here, in contrast to Keairns, the prosecution presented sworn testimony
about its efforts to secure Jaw.L.'s trial testimony both via subpoena and via methods
beyond issuance of the subpoena. As noted above, Hughes testified that at the April 19, 2021
meeting "significant efforts" were made to encourage Jaw.L. to testify. Vass testified that
on April 19, 2021, he and other police officers pressed Jaw.L. for over two hours to testify,
but he repeatedly refused to do so. According to Vass, Jaw.L. ultimately told the officers
that they could "throw him in jail," but he still would not testify. The next day, April 20,
2021, Vass again attempted to secure Jaw.L.'s testimony. Vass explained all available
options for ensuring Jaw.L.'s safety, including placing him in protective custody, relocating
him, and providing him financial assistance, but Jaw.L. adamantly refused to testify. The
next morning, April 21, 2021, Vass contacted appellant and again urged him to testify. As
did the defendant in State v. Parker, 6th Dist. No. L-18-1238, 2020-Ohio-4607, ¶ 94,
Jaw.L. made it clear that he "did not want to be involved with the case, did not intend to
cooperate with the prosecution of the case, and would not come to court." Id. The only
additional effort suggested by defense counsel at the hearing was to issue an arrest warrant,
bring Jaw.L. into court, and hold him in contempt if he refused to testify. However, as we
have already noted, such effort would have proven futile, as Jaw.L. told Vass he would not
testify even if he were taken to jail.
No. 21AP-329 30
{¶ 92} As noted above, the test for unavailability is whether the state made
reasonable, good-faith efforts to secure the witness's appearance. The test is not whether
the state took every conceivable step possible. "[W]hen a witness disappears before trial,
it is always possible to think of additional steps that the prosecution might have taken to
secure the witness' presence * * * but the Sixth Amendment does not require the
prosecution to exhaust every avenue of inquiry, no matter how unpromising." Hardy v.
Cross, 565 U.S. 65, 71-72 (2011).
{¶ 93} After hearing the evidence, the trial court concluded that the prosecution
proved both prongs of the Evid.R. 804(B)(6) test. We discern no basis in the record to
conclude that the trial court erred in determining that the prosecution demonstrated by a
preponderance of the evidence that appellant engaged in wrongdoing for the purpose of
preventing Jaw.L. from testifying at trial and that it made reasonable, good-faith efforts to
secure Jaw.L.'s presence at trial. As a result, we conclude that the trial court properly
admitted Jaw.L.'s out-of-court statements to the police under Evid.R. 804(B)(6).
{¶ 94} Turning to appellant's constitutional argument, we note that the
Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees
a criminal defendant the right to confront the witnesses against him. This protection
" 'requires, wherever possible, testimony and cross-examination to occur at trial.' " Harper,
6th Dist. No. L-15-1310, 2017-Ohio-1395, at ¶ 33, quoting State v. Myers, 9th Dist. No.
25737, 2012-Ohio-1820, ¶ 21. However, the right to confront one's accuser "is not absolute
and 'does not necessarily prohibit the admission of hearsay statements against a criminal
defendant.' " State v. Madrigal, 87 Ohio St.3d 378, 385 (2000), quoting Idaho v. Wright,
497 U.S. 805, 813 (1990). Indeed, courts have "explicitly preserved the principle that an
accused has forfeited his confrontation right when the accused's own misconduct is
responsible for a witness's unavailability." Hand, 107 Ohio St.3d 378, 2006-Ohio-18, at
¶ 105, citing Crawford v. Washington, 541 U.S. 36, 62 (2004) ("The rule of forfeiture by
wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable
grounds; it does not purport to be alternative means of determining reliability."). The Hand
court also cited Reynolds v. United States, 98 U.S. 145, 158 (1879) (stating that if the
witness is unavailable due to the defendant's own misconduct, the defendant "is in no
condition to assert that his constitutional rights have been violated").
No. 21AP-329 31
{¶ 95} Here, the trial court determined that Jaw.L.'s out-of-court statements to the
police were admissible upon a finding that appellant, through the letter, threatened to
kidnap Jaw.L. for the purpose of making him unavailable to testify at trial. As discussed
above, we have determined that the trial court did not err in making that finding. As a
result, we conclude that appellant forfeited his confrontation right by engaging in this
wrongdoing and that the trial court did not err by admitting Jaw.L.'s out-of-court
statements into evidence.
{¶ 96} As to appellant's argument that the trial court erred in overruling his motion
to suppress and admitting Jaw.L.'s photo array identification into evidence, we note
initially that appellant filed his written motion to suppress on April 19, 2021, the first day
of trial. The prosecution did not file a written response and there was no formal hearing on
the motion. At the close of the third day of trial, after the prosecution had already presented
its evidence pertaining to the photo array identification (State's Ex. Y-3), the prosecution
reminded the trial court of the pending motion, and the trial court overruled it.
{¶ 97} Appellant contends that Jaw.L.'s pre-trial identification derived from an
unnecessarily suggestive photo array procedure. Courts have adopted a two-prong test to
determine the admissibility of pre-trial identification testimony. Glenn-Coulverson, 10th
Dist. No. 16AP-265, 2017-Ohio 2671, at ¶ 52. First, there must be a determination that the
identification procedure was so impermissibly suggestive as to give right to a substantial
likelihood of misidentification. Id., citing State v. Monford, 190 Ohio App.3d 35, 2010-
Ohio-4732, ¶ 38 (10th Dist.), citing Neil v. Biggers, 409 U.S. 188 (1972). Second, there
must be a determination that the identification itself was unreliable under the totality of
the circumstances. Id., citing Monford at ¶ 38. If the pretrial confrontation procedure was
not unduly suggestive, any remaining questions as to reliability go to the weight of the
identification, not its admissibility, and no further inquiry into the reliability of the
identification is required. Id., citing State v. Reddy, 10th Dist. No. 09AP-868, 2010-Ohio-
3892, ¶ 31. A pretrial identification may be suppressed only if it is both unnecessarily
suggestive and unreliable under the totality of the circumstances. Monford at ¶ 40.
{¶ 98} Appellant fails to show that the photo array procedure was unduly suggestive.
CDP used a blind administrator in compliance with R.C. 2933.83. Such measure generally
ensures compliance with due process. State v. Howard, 8th Dist. No. 100094, 2014-Ohio-
No. 21AP-329 32
2176, ¶ 33. The administrator advised Jaw.L. that he was not required to select any
photograph and that the subject of the investigation may or may not be included in the
photographs. (State's Ex. Y-3.)
{¶ 99} Noting Jaw.L.'s initial statement that "photographs 1, 2, 4, and 6 looked
familiar," appellant points to the administrator's statements that "you're referencing
number 6 there, can you say that is, is not, or you aren't sure" and "I don't want to put words
in your mouth but, are you able to answer with any of those three?" as "improperly
steer[ing] [Jaw.L.] into selecting [appellant's] photograph." (Appellant's Am. Brief at 26.)
We disagree. The administrator did not know that the person depicted in photograph
number 6 was the suspect. Further, the question by its own terms does not impermissibly
suggest that photograph number 6 was the suspect. Indeed, two of the three options offered
by the administrator, i.e., "is not" or "not sure" would have led to a non-identification of
number 6.
{¶ 100} Even assuming the administrator's question was impermissibly
suggestive, suppression of the identification would still be improper because Jaw.L.'s
identification was reliable. We have already addressed and rejected appellant's identical
arguments regarding the reliability of the identification in our disposition of the first
assignment of error.
{¶ 101} The second assignment of error is overruled.
{¶ 102} Appellant's third assignment of error alleges two instances of judicial
bias: (1) the trial court's participation in the pre-trial in camera certification hearing
conducted under Crim.R 16(F), and (2) the trial court's independent examination of the pro
se motion to dismiss at the Evid.R. 804(B)(6) hearing. Appellant maintains that these acts
constitute reversible structural error. We disagree.
{¶ 103} "A structural error is a violation of the basic constitutional guarantees
that define the framework of a criminal trial." State v. West, __Ohio St.3d __, 2022-Ohio-
1556, ¶ 2. "Structural error has been recognized only in limited circumstances involving
fundamental constitutional rights, including the denial of counsel to an indigent defendant,
the denial of counsel of choice, the denial of self-representation at trial, the denial of a
public trial, and the failure to instruct the jury that the accused's guilt must be proved
beyond a reasonable doubt." Id. at ¶ 26, citing Weaver v. Massachusetts, __U.S.__, 137
No. 21AP-329 33
S.Ct. 1899, 1908 (2017). In addition, the " '[t]he presence of a biased judge on the bench is,
of course, a paradigmatic example of structural constitutional error.' " State v. Pippins,
10th Dist. No. 15AP-137, 2020-Ohio-503, ¶ 69, quoting State v. Sanders, 92 Ohio St.3d
245, 278 (2001), citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991).
{¶ 104} "The term ' "bias" ' implies a hostile feeling or spirit of ill will or undue
friendship or favoritism toward one of the litigants or his attorney, with the formation of a
fixed anticipatory judgment on the part of the judge, as contradistinguished from an open
state of mind which will be governed by the law and the facts." State v. Skerkavich, 8th
Dist. No. 105455, 2019-Ohio-4973, ¶ 24, quoting In re Disqualification of O'Neill, 100 Ohio
St.3d 1232, 2002-Ohio-7479, ¶ 14, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St.
463, 469 (1956). " '[T]he threshold inquiry is whether, with reference to a range of
acceptable, though not necessarily model, judicial behavior, the [trial] court's conduct falls
demonstrably outside this range so as to constitute hostility or bias.' " Id., quoting State v.
Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, ¶ 74, citing McMillen v. Castro, 405 F.3d 405,
410 (6th Cir.2005). "It is the burden of the accused * * * to demonstrate that the judge
became biased or that the judge participated so continuously in the investigation and was
exposed to such prejudicial information that bias would be perceived by an objective
observer reviewing the case." Pippins at ¶ 71.
{¶ 105} Structural error "is not susceptible to harmless-error review but
rather, when an objection has been raised in the trial court, is grounds for automatic
reversal." West at ¶ 2, citing State v. Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, ¶ 2, 20.
"But when the accused fails to object to the error in the trial court, appellate courts apply
the plain-error standard of review, shifting the burden to the accused to demonstrate that
the error affected the trial's 0utcome." Id., citing Jones at ¶ 17.
{¶ 106} We first consider appellant's Crim.R. 16(F) argument. Crim.R. 16
addresses discovery and inspection of the prosecution's evidence by a defendant. Crim.R.
16(D)(1) specifically states: "If the prosecuting attorney does not disclose materials or
portions of materials under this rule, the prosecuting attorney shall certify to the court that
the prosecuting attorney is not disclosing material or portions of material otherwise subject
to disclosure under this rule for one or more of the following reasons: (1) The prosecuting
attorney has reasonable, articulable grounds to believe that disclosure will compromise the
No. 21AP-329 34
safety of a witness, victim, or third party, or subject them to intimidation or coercion" [or]
* * * (5) "[t]he interests of justice require non-disclosure." Crim.R. 16(D)(1), (D)(5).
{¶ 107} Upon a defendant's motion, the trial court must hold an in camera
hearing seven days prior to trial. Crim.R. 16(F). If the trial court finds an abuse of
prosecutorial discretion, then the prosecutor must immediately disclose the material.
McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, at ¶ 52, citing 2010 Staff Note, Crim.R.
16(F). Otherwise, the material must be disclosed "no later than commencement of trial."
Id., citing Crim.R. 16(F)(5).
{¶ 108} In the present case, the prosecution certified non-disclosure of
materials relating to Jaw.L.'s statements to the police and photo array identification. As
reasons for the non-disclosure, the prosecution asserted that it had reasonable, articulable
grounds to believe that disclosure would compromise Jaw.L.'s safety and that the interests
of justice required non-disclosure.
{¶ 109} In accordance with Crim.R. 16(F), the trial court held an in camera
certification hearing seven days prior to trial. No witnesses were called at the hearing.
Although appellant was not present, defense counsel appeared on his behalf. The
prosecution discussed appellant's and Vinson's membership in the Deuce Deuce Bloods,
and described the gang as "one of the most dangerous gangs here in Franklin County."
(Apr. 12, 2021 Hearing Tr. at 3.) The prosecution further stated that the Deuce Deuce
Bloods had been involved in multiple homicides, that Vinson had been personally
responsible for more than ten homicides, and that appellant had access to other gang
members while in jail. In addition, the prosecution stated that the three surviving
occupants of the Honda CR-V, including Jaw.L., had been threatened and were afraid to
testify. The prosecution averred that, with the redaction of Jaw.L.'s name, it had provided
the defense a summary of Jaw.L.'s first interview with the police and a summary of his
selection of appellant from a photo array; however, the prosecution had not provided the
defense with either a summary of Jaw.L.'s second police interview or the audio-recording
of the photo array procedure. The prosecution acknowledged that defense counsel had
already determined Jaw.L.'s identity; however, it sought certification to protect Jaw.L.'s
identity from appellant until the start of trial.
No. 21AP-329 35
{¶ 110} At the conclusion of the hearing, the trial court found that the
prosecution had demonstrated reasonable, articulable grounds to believe that disclosure
would compromise Jaw.L.'s safety or subject him to intimidation or coercion. On April 16,
2021, the court issued a sealed entry memorializing its oral decision.
{¶ 111} In State v. Gillard, 40 Ohio St.3d 226 (1988), the Supreme Court of
Ohio held that "when the state seeks to obtain relief from discovery or to perpetuate
testimony under Crim.R. 16(B)(1)(e) [now addressed under Crim.R. 16(D)(1)], the judge
who disposes of such a motion may not be the same judge who will conduct the trial." Id. at
paragraph one of the syllabus. Gillard adopted this rule because "when a judge hears
information that a defendant has attempted to harm, coerce, or intimidate an opposing
witness, there is an unnecessary risk that the judge will harbor a bias against that
defendant." Id. at 229. Appellant contends that his case falls within the syllabus rule of
Gillard and, as such, the trial judge who presided over the certification hearing had a duty
to sua sponte recuse himself from presiding over the trial and his failure to do so constitutes
reversible structural error.
{¶ 112} Initially, we note that the Supreme Court of Ohio has determined that
a violation of the Gillard rule is not structural, as the holding in that case was not based on
any constitutional provision. State v. Esparza, 74 Ohio St.3d 660, 661-62 (1996).
Moreover, even if the error could be classified as structural constitutional error, we find no
indication that the trial judge in this matter exhibited bias against appellant in presiding
over both the certification hearing and the bench trial. Accordingly, structural analysis is
not invoked. Pippins, 10th Dist. No. 15AP-137, 2020-Ohio-503, at ¶ 75. Even if structural
analysis were invoked, appellant neither raised the issue that the certification matter should
be heard by another judge nor objected to the judge presiding over the bench trial. As such,
appellant has forfeited all but plain error. West, __Ohio St.3d__, 2022-Ohio-1556, at ¶ 28.
(Assertions of structural error do not preclude an appellate court from applying the plain-
error standard when the accused has failed to object.) See also State v. McAlpin, __Ohio
St.3d__, 2022-Ohio-1567, ¶ 66. ("[T]he plain-error rule still applies to errors that were
never objected to at trial, even if those errors can be classified as structural.").
{¶ 113} Under the plain error standard of review, the accused bears the
burden of " 'showing that but for a plain or obvious error, the outcome of the proceeding
No. 21AP-329 36
would have been otherwise, and reversal must be necessary to correct a manifest
miscarriage of justice.' " West at ¶ 22, quoting State v. Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034, ¶ 16. "An appellate court has discretion to notice plain error and therefore
'is not required to correct it.' " Id., quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, ¶ 23.
{¶ 114} Appellant argues that but for obvious error in the trial court presiding
over both the Crim.R 16(F) hearing and the bench trial, the outcome of the trial would have
been different. Appellant maintains this is so because the evidence against him was "far
from overwhelming." (Appellant's Am. Brief at 38.) Appellant argues that the uncertainties
surrounding Jaw.L.'s pretrial identification of appellant resulted in only "extremely weak
proof on the element of identity," and that the "insertion of a biased fact-finder into the trial
created a probability of prejudice sufficient to undermine confidence in the guilty verdicts
of the trial judge." (Appellant's Am. Brief at 38.)
{¶ 115} In our resolution of appellant's first assignment of error, we
considered and rejected appellant's arguments regarding Jaw.L.'s pretrial identification of
appellant as the shooter. Further, appellant's argument fails to acknowledge the presence
of his DNA on the hat found at the scene. In addition, appellant's argument assumes bias
on the part of the trial judge in presiding over both the certification hearing and the bench
trial. As noted above, we discern no evidence of judicial bias in that regard.
{¶ 116} We likewise find no evidence of judicial bias in the trial court's
independent examination of the pro se motion to dismiss at the Evid.R. 804(B)(6) hearing.
As noted above, after announcing its conclusion that the handwriting in the motion to
dismiss appeared to match that in the letter Jaw.L. received via text message, the trial court
invited argument. Appellant argued that the motion constituted "extrinsic evidence," that
it was "not marked * * * for appeal purposes," and that it constituted "expert testimony."
(Apr. 21, 2021 Tr. at 75.) However, appellant did not object on the grounds he now raises
on appeal, i.e., that the trial court's handwriting comparison demonstrated judicial bias.
" 'Objection on one ground does not preserve another, unmentioned grounds.' " State v.
Hairston, 10th Dist. No. 15AP-1013, 2016-Ohio-8495, ¶ 34, quoting State v. Wallace, 10th
Dist. No. 08AP-2, 2008-Ohio-5260, ¶ 25. As noted above, failure to object results in
No. 21AP-329 37
forfeiture, even when the error would otherwise be structural. McAlpin at ¶ 66. Thus,
appellant's judicial-bias argument is subject to plain error review.
{¶ 117} Even if appellant had preserved the judicial-bias argument, appellant
cannot demonstrate any error, much less plain error. The trial court's decision to compare
the letter with the motion does not evince any "hostile feeling or spirit of ill will" against
appellant. Skerkavich, 8th Dist. No. 105455, 2019-Ohio-4973, at ¶ 24. Just the opposite,
the trial court indicated its intention was to benefit appellant by making the comparison.
Indeed, the trial court explained that the letter, "on its face without the comparison"
indicated that appellant was the author. (Apr. 21, 2021 Hearing Tr. at 76.) The trial court
averred that it compared the handwriting in the documents "in an interest of protecting
[appellant]" and to find "an out" for appellant. Id.{¶ 118} Further, under the circumstances presented here, we cannot conclude
that the trial court's investigation was improper. The trial court did not venture outside its
own docket in making the comparison. "[A] trial court is not required to suffer from
institutional amnesia. It is axiomatic that a trial court may take judicial notice of its own
docket." Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio St.3d 576, 580 (1994).
Appellant filed the motion expecting the trial court to review it.
{¶ 119} Appellant's citation to J.S. v. L.S., 10th Dist. No. 19AP-400, 2020-
Ohio-1135 is unavailing. There, one of the parties in a CPO hearing submitted documents
from cases in other counties. Id. at ¶ 9. After the trial court's staff attorney researched the
cases online, the trial court concluded that the submitted documents were "fraudulent." Id.
at ¶ 11. This court reversed, finding that the trial court gave the party no time to respond to
the court's accusation of wrongdoing. Id. at ¶ 23.
{¶ 120} Here, the trial court considered a document previously filed by
appellant in this case. The court gave both parties the opportunity to make a record in
response to its finding that the handwriting in the letter matched the handwriting in the
motion to dismiss. The court recessed for two hours to give defense counsel the opportunity
to "see what they come up with." Id. at ¶ 79. However, the defense called no additional
witnesses and offered no further arguments.
{¶ 121} In short, even if appellant had properly preserved the argument he
now raises, he has failed to demonstrate bias; thus, there is no structural error and no
No. 21AP-329 38
automatic reversal. Appellant fails to show that it was plain error for the trial court to
conduct the handwriting comparison. Moreover, appellant fails to demonstrate any
reasonable probability of prejudice. The handwriting comparison essentially had no effect
on the outcome of the Evid.R. 804(B)(6) hearing because it merely confirmed what the trial
court had already concluded based on the contents of the letter, i.e., that appellant wrote
the letter. Appellant provides no proof that at any point in the trial that the trial court
exhibited hostility or ill will toward appellant that affected the guilty verdicts.
{¶ 122} The third assignment of error is overruled.
{¶ 123} In his fourth assignment of error, appellant argues that the trial court's
failure to disclose its participation in the certification hearing and its concomitant exposure
to the information at that hearing regarding appellant's gang involvement prior to
appellant's reaffirmance of his decision to waive jury invalidated his original jury waiver.
Thus, argues appellant, his jury waiver was not made voluntarily, knowingly, and
intelligently in violation of his constitutional right to trial by jury. Appellant maintains that
the trial court's error amounts to reversible structural error. We disagree.
{¶ 124} On February 17, 2021, the trial court held a hearing on appellant's
expressed desire to waive his right to trial by jury. At that hearing, the court explained the
waiver process and advised appellant of the consequences of proceeding to trial before the
court rather than a jury. Appellant indicated he understood the court's explanation and
admonitions and then executed the written waiver in open court. Thereafter, the court
informed counsel that the Crim.R. 16(F) certification hearing would be set for April 12,
2021. Addressing appellant, the court described the certification hearing as "a technicality
we've got to deal with that day." (Feb. 17, 2021 Tr. at 28.) Appellant's written jury waiver
was filed the same day.
{¶ 125} On the first day of trial, the prosecutor stated, "I know we already did
a lengthy colloquy regarding his right to waive jury, and we've already gone on the record.
I guess I would just ask again this morning that it's still his intention to waive jury and go
forward with a bench trial." The trial court asked appellant, "Is that still your intention?
Appellant responded, "Yes, sir." (Apr. 19, 2021 Tr. at 56.) No mention of the certification
hearing and/or the information provided at that hearing was made by defense counsel, the
No. 21AP-329 39
prosecutor, or the trial court, nor did defense counsel object to the adequacy of the trial
court's colloquy with appellant during the reaffirmation process.
{¶ 126} Appellant does not dispute that the original jury waiver was both
constitutionally and statutorily valid. Rather, appellant argues that the trial court's failure
to advise him of the effect of the Crim.R. 16(F) hearing essentially invalidated the original
waiver, and, as such, he was never apprised of, and thus was deprived of, his constitutional
right to trial by jury. The deprivation of a right to trial by jury has "consequences that are
necessarily unquantifiable and indeterminate [and] unquestionably qualifies as a
'structural error.' " Sullivan v. Louisiana, 508 U.S. 275, 281-82. However, assuming,
without deciding, that an error in obtaining a jury waiver deprives an accused of the right
to trial by jury, thus qualifying as structural error, appellant never requested that the trial
court engage in any additional colloquy when he reaffirmed his jury waiver. As a result,
appellant has forfeited all but plain error. McAlpin, __Ohio St.3d__, 2022-Ohio-1567, at
¶ 66.
{¶ 127} Appellant has failed to demonstrate plain error. Appellant does not
point us to any authority specifically holding that the trial court was required to advise
appellant of its participation in the certification hearing prior to engaging in the additional
colloquy about appellant's jury trial waiver. Furthermore, appellant fails to show prejudice.
At the February 17, 2021 hearing, appellant was adamant in his decision to waive jury, even
over defense counsel's advice to the contrary. There is no reasonable probability that an
additional colloquy regarding the certification hearing would have caused appellant to
withdraw his jury waiver or otherwise change the outcome of the trial.
{¶ 128} The fourth assignment of error is overruled.
{¶ 129} In his fifth assignment of error, appellant contends that the trial court
erred in admitting certain evidence at trial. Initially, we note that " ' "a judge [in a bench
trial] is presumed to consider only the relevant, material and competent evidence in
arriving at a judgment, unless the contrary affirmatively appears from the record." ' " State
v. Long, 10th Dist. No. 20AP-90, 2021-Ohio-2656, ¶ 26, quoting State v. Powell, 10th Dist.
No. 14AP-1054, 2015-Ohio-4459, ¶ 20, quoting State v. Johnson, 5th Dist. No.
2014CA00189, 2015-Ohio-3113, ¶ 91, citing State v. White, 15 Ohio St.2d 146, 151 (1968).
"Indeed, Ohio court[s] have held '[i]n contrast to juries, judges are presumed to know the
No. 21AP-329 40
law and expected to consider only relevant, material, and competent evidence during their
deliberations.' " Id., quoting State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, ¶ 57.
{¶ 130} Appellant first challenges the admission of Smittle's testimony and
related photograph regarding appellant's possession of a handgun that was not tied to the
shootings. Appellant maintains that the admission of this evidence violated the prohibition
against propensity evidence set forth in Evid.R. 404(B) and R.C. 2945.59. "Generally, the
admission or exclusion of evidence lies within the sound discretion of the trial court, and
we will not disturb that decision absent an abuse of discretion." State v. Daylong, 10th
Dist. No. 19AP-279, 2021-Ohio-4192, ¶ 22. However, whether evidence of other acts is
admissible under Evid.R. 404(B) is a question of law that we review de novo. State v.
Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, ¶ 22.
{¶ 131} "Both Evid.R. 404(B) and R.C. 2945.59 'preclude admission of other
acts evidence to prove a character trait in order to demonstrate conduct in conformity with
that trait,' State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 16, or 'to show the
accused's propensity or inclination to commit crime[.]' id. at ¶ 15." State v. Thomas, 152
Ohio St.3d 15, 2017-Ohio-8011, ¶ 35. To be admissible, the other-acts evidence must be
"probative of a separate, nonpropensity-based issue." Hartman at ¶ 22.
{¶ 132} As noted above, Smittle, the prosecution's gang expert, testified that
the CIU maintained a "gang packet" on appellant that demonstrated his involvement with
guns, drugs, and drug trafficking. The "gang packet" includes a photograph of appellant in
a vehicle holding a large amount of cash and a handgun. When asked by the prosecutor to
explain the significance of the photograph "in relation to documented criminal gangs here
in Columbus," Smittle responded, "[o]bviously weapon possession." (Tr. at 353.) Smittle
agreed with the prosecutor's assessment that the photograph demonstrated appellant's
prior commission of a WUD offense. Appellant argues that the testimony and photograph
was improper other-acts evidence because there was no evidence linking the handgun
depicted in the photograph to either of the firearms used in the shootings.
{¶ 133} Appellant did not object to Smittle's testimony or the photograph.
Thus, we review their admission for plain error. Appellant fails to show plain error because
the testimony and photograph were probative of a nonpropensity-based issue, i.e., to prove
the gang specifications under R.C. 2941.142(A). Glenn-Coulverson, 10th Dist. No. 16AP-
No. 21AP-329 41
265, 2017-Ohio-2671, at ¶ 36; Wade, 10th Dist. No. 16AP-674, 2018-Ohio-876, at ¶ 53.
Indeed, the prosecutor asked Smittle about the photograph "in relation to documented
criminal gangs here in Columbus." Appellant's possession of the handgun and cash "tended
to show that he was an active member of the gang." Glenn-Coulverson at ¶ 36. Further,
the statutory definition of "criminal gang" requires proof that "[t]he persons in the
organization, association, or group individually or collectively engage in or have engaged in
a pattern of criminal gang activity." R.C. 2923.41(A)(3). The "pattern of criminal gang
activity" element requires that persons in the criminal gang have committed two or more
enumerated offenses. R.C. 2923.41(B)(1). The photograph depicts appellant committing a
felony WUD offense and improper handling of a firearm. R.C. 2923.41(B)(1)(a) and (c).
{¶ 134} Appellant also fails to show prejudice. During closing argument, the
prosecutor referenced the testimony and photograph only in connection with the gang
specifications. (Tr. at 667.) Even after defense counsel suggested in his closing argument
that the prosecution's gang evidence was improper other-acts evidence, the prosecutor in
rebuttal reiterated that the gang evidence was relevant to prove the gang specifications. (Tr.
at 699-700). The prosecutor did not make any propensity-based arguments relating to
appellant's possession of the gun in the photograph. Nothing in the record establishes that
the trial court considered the testimony and photograph for any improper propensity
purpose. Thus, there is no reasonable probability that this evidence contributed to the trial
court's verdict beyond the proper use of proving the gang specifications.
{¶ 135} Appellant's reliance on Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011,
and other cases for the proposition that evidence of a defendant's possession of a weapon
unrelated to the offense is inadmissible and prejudicial under Evid.R. 404(B) and R.C.
2945.59 is without merit. None of the cited cases involve the admission of weapons
possession evidence to prove a gang specification. Indeed, in Thomas, the court found that
the prosecutor offered the evidence to portray the defendant "as a person of violent
character who had acted in conformity with his propensity to kill—a use of evidence
prohibited by Evid.R. 404(B) and R.C. 2945.59." Id. at ¶ 49. Here, the prosecution offered
the evidence to prove the gang specifications, not to prove that appellant was a violent
character who acted in conformity with his propensity to kill.
No. 21AP-329 42
{¶ 136} Appellant next alleges that Smittle's testimony that appellant and
Vinson were members of the Deuce Deuce Bloods gang and participated in a pattern of
criminal conduct was irrelevant and based on inadmissible hearsay. We disagree.
{¶ 137} Appellant premises his relevance argument on his assertion that the
shootings were not "gang related." We rejected this argument in concluding that the
prosecution proved the gang specifications. Further, evidence establishing that appellant
and Vinson were members of the Deuce Deuce Bloods was relevant to prove the underlying
offenses. Vinson drove the car from which the shots were fired and his DNA was on the
gun that killed S.C. That appellant and Vinson are both members of the same gang
corroborates appellant's identity as one of the shooters.
{¶ 138} Appellant also challenges the relevancy of Smittle's testimony
regarding the Deuce Deuce Bloods' history of criminal activity. That testimony was relevant
to prove the "pattern of criminal gang activity" element of the gang specifications by
demonstrating that persons in the gang have committed two or more enumerated offenses.
R.C. 2923.41(B)(1). Absent proof of the specific crimes committed by the Deuce Deuce
Bloods, the evidence would have been insufficient to prove the gang specifications. State v.
Johnson, 10th Dist. No. 07AP-538, 2008-Ohio-590, ¶ 39-40. The record contains no
indication that the trial court considered the evidence regarding the Deuce Deuce Bloods'
history of criminal activity for any purpose other than to prove the gang specifications
under R.C. 2941.142 (A).
{¶ 139} Equally untenable is appellant's claim that Smittle's testimony about
appellant's gang membership derived from hearsay sources such as field interviews from
other officers, information obtained from confidential informants, and social media posts.
Initially, we note that this testimony was not offered to prove appellant's gang membership
specifically; rather, it was offered as general background information about how CDP
identifies and investigates gang membership. Smittle's testimony about appellant's
membership in the Deuce Deuce Bloods derived in large part from photographs and self-
admissions included in the "gang packet." The photographs themselves are not
"statements" that would implicate the hearsay rules. Evid.R. 801(A); State v. Clifford, 5th
Dist. No. 19 CAA 12 0068, 2020-Ohio-5095, ¶ 15. To the extent that the photographs depict
statements by appellant, i.e., flashing gang signs, wearing red clothing, displaying a
No. 21AP-329 43
"Bloods" tattoo, and maligning the rival Crips gang by using a "K" instead of "C," such
statements are non-hearsay party admissions. Evid.R. 801(D)(2) (A statement is not
hearsay if it "is offered against a party and is * * * the party's own statement.").
{¶ 140} Appellant also challenges admission of the testimony offered by
Hughes and Vass at the Evid.R. 804(B)(6) hearing. Appellant contends that the
prosecution failed to show that Hughes and Vass were unavailable to testify as is required
to admit former testimony as a hearsay exception under Evid.R. 804(B)(1). Under Evid.R.
804(B)(1), there are six hearsay exceptions that apply when the hearsay declarant is
"unavailable." Applicable here is the first of these exceptions—former testimony—which is
defined as "[t]estimony given as a witness at another hearing of the same or a different
proceeding * * * if the party against whom the testimony is now offered * * * had an
opportunity and similar motive to develop the testimony by direct, cross, or redirect
examination. Testimony given at a preliminary hearing must satisfy the right to
confrontation and exhibit indicia of reliability." To be admitted at trial, the former
testimony "must meet the following requirements: (1) it must be testimony given by a
witness; (2) at a previous hearing, regardless whether it is the same matter or not; (3) the
party against whom the testimony is being offered must have had an opportunity to cross-
examine the witness; (4) the cross-examination must have satisfied the right to
confrontation; and (5) must appear to be reliable testimony." State v. Hairston, 10th Dist.
No. 08AP-735, 2009-Ohio-2346, ¶ 33.
{¶ 141} The defense objected to admission of the testimony, but not on
hearsay grounds. The defense objected on grounds that it crafted its questions at the
Evid.R. 804(B)(6) hearing with the understanding that the testimony would not be used as
"substantive evidence" at trial. (Tr. at 636). The prosecutor responded that it sought to
admit the testimony to prove consciousness of guilt. The prosecutor averred that if the case
were tried to a jury, the prosecutor would have recalled the witnesses at trial; however, since
the case was tried to the bench, recalling the witnesses was unnecessary because the trial
court "already heard the testimony previously." (Tr. at 637, 638). The trial court admitted
the testimony for purposes of showing consciousness of guilt and indicated it would assign
it the appropriate value. The trial court permitted the defense to proffer any additional
questions it would have asked the witnesses. Despite this opportunity, the defense
No. 21AP-329 44
proffered no additional questions, and it did not call either Hughes or Vass as defense
witnesses at trial.
{¶ 142} As noted above, objection on one ground does not preserve other,
unmentioned grounds. Hairston, 10th Dist. No. 15AP-1013, 2016-Ohio-8495, at ¶ 34.
Thus, appellant's unavailability argument is reviewed for plain error. State v. Neyland, 139
Ohio St.3d 353, 2014-Ohio-1914, ¶ 176 (failure to object on the basis of unavailability
constitutes waiver).
{¶ 143} Assuming that the prosecution could not have shown unavailability,
there is no reason to believe, and appellant does not argue, that Hughes and Vass would
have testified any differently at trial than they did at the Evid.R. 804(B)(6) hearing. Despite
having the opportunity to do so, the defense did not identify any line of questioning it would
have pursued at trial that it had not already pursued at the Evid.R. 804(B)(6) hearing.
Further, as noted above, the trial court averred only that it would give the testimony the
weight it deserved. Nothing in the record establishes that the trial court even considered
the testimony provided at the Evid.R. 804(B)(6) hearing in arriving at its verdicts.
{¶ 144} Appellant also argues that the testimony at the Evid.R. 804(B)(6)
hearing was inadmissible because the prosecution failed to establish that the anonymous
threats to Jaw.L. were directed by appellant. The defense did not raise this objection to the
prosecution's request to admit the Evid.R. 804(B)(6) hearing testimony as trial evidence;
as such, appellant has forfeited all but plain error.
{¶ 145} Appellant has not demonstrated plain error. We have already
determined that the evidence establishes that the threatening letter Jaw.L. received was
written by appellant. As such, it is relevant to show consciousness of guilt. State v. Conway,
109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 68 ("[e]vidence of conduct designed to impede or
prevent a witness from testifying is admissible to show consciousness of guilt"); State v.
Berry, 10th Dist. No. 16AP-659, 2017-Ohio-1529, ¶ 38 ("Berry's attempt to have J.J.
kidnapped by 'Smitty,' is * * * consistent evidence of consciousness of guilt."). Further,
appellant fails to show prejudice. Even if appellant did not authorize the anonymous
threats referenced at the hearing, nothing in the record establishes that the trial court based
its verdicts on any evidence from the Evid.R. 804(B)(6) hearing that was not probative of
appellant's guilt.
No. 21AP-329 45
{¶ 146} The fifth assignment of error is overruled.
{¶ 147} Appellant's sixth assignment of error asserts that the trial court failed
to conduct the four-part analysis required by Barker v. Wingo, 407 U.S. 514 (1972) in
denying his motion to dismiss on constitutional speedy-trial grounds.
{¶ 148} Appellant was indicted on December 28, 2017 on multiple felonies.
He entered a plea of not guilty, and trial was scheduled for January 29, 2018. Thereafter,
the trial court ordered multiple continuances in 2018 based on either joint motions of the
parties or appellant's individual motions. Trial was then set for March 4, 2019. On
January 7, 2019, appellant filed a motion to dismiss the indictment, arguing that the state
had violated his statutory and constitutional right to a speedy trial by failing to commence
trial within 270 days of the indictment. The state opposed the motion. The trial court did
not hold a hearing. In a decision and entry issued February 8, 2019, the trial court, after
enumerating the various continuances filed in the case, stated as follows:
All continuances in this matter have been either at the request
of the Defendant or jointly made by the parties. In each
instance, Defendant waived his right to a speedy trial during
the period of the continuance. The Court finds such waivers
to be effective. Accordingly, calculating the days from the
indictment, and not including the time of the continuances,
only 62 days have passed. This amount does not account for
any time tolled pursuant to statute, and is clearly less than the
270 days set forth in R.C. 2945.71. Accordingly, the Court
declines to presume any prejudicial impact of the delay. The
Court further declines to find that 62 days between the
indictment and trial date constitutes a denial of Defendant's
right to a speedy trial.
(Feb. 8, 2019 Decision & Entry at 3.)
{¶ 149} "Generally, an appellate court's review of a trial court's decision
regarding a motion to dismiss based upon a violation of speedy trial provisions involves a
mixed question of law and fact." State v. Squillace, 10th Dist. No. 15AP-958, 2016-Ohio-
1038, ¶ 11, citing State v. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, ¶ 12, citing
State v. Fultz, 4th Dist. No. 06CA2923, 2007-Ohio-319, ¶ 8. "We must give due deference
to a trial court's findings of fact if supported by competent, credible evidence, but we must
independently review whether the trial court properly applied the law to the facts of the
case." Squillance at ¶ 11, citing Fultz at ¶ 8.
No. 21AP-329 46
{¶ 150} Appellant argues that the trial court erred in failing to enter more
detailed factual findings consistent with the four-part test set forth in Barker for resolving
a constitutional speedy-trial claim. Under that test, a trial court must balance four factors:
(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of a
speedy-trial right, and (4) prejudice to the defendant. State v. Triplett, 78 Ohio St.3d 566,
568, (1997), citing Barker at 530.
{¶ 151} At the outset, we note that Crim.R.12(F), which requires a trial court
to state its essential findings on the record when factual issues are involved in determining
a motion, "is not self-executing." State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,
¶ 112. "If a defendant does not request findings of fact, any error is forfeited." Id., citing
State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 47. Because appellant did not
request that the trial court make any additional findings, he forfeited all but plain error.
{¶ 152} On this record, appellant cannot show plain error. The trial court was
not required to issue findings of fact before rejecting appellant's constitutional and
statutory speedy-trial claims. "Crim.R. 12(F) requires a court to make findings of fact only
'[w]here factual issues are involved in determining a motion.' " "A court is not required to
make findings of fact when the evidence is undisputed." Id. at ¶ 114, quoting Bauer v.
Cleveland Ry. Co., 141 Ohio St. 197, 203 (2015). The facts required to resolve appellant's
claims were not in dispute. Moreover, even if the delay between the indictment and the
motion to dismiss (slightly over one year) was sufficient to trigger a constitutional speedy-
trial analysis, the continuance entries alone defeat any constitutional speedy-trial claim.
State v. Williams, 8th Dist. No. 108275, 2020-Ohio-269, ¶ 50-53 (no constitutional speedy-
trial violation when almost all of the continuances were the result of the defendant's
actions). Here, appellant does not challenge the trial court's attribution of the continuances
to appellant or its calculation that, not including the time attributed to the continuances,
only 62 days passed between the indictment and the trial date. No additional findings were
necessary.
{¶ 153} The sixth assignment of error is overruled.
{¶ 154} In his seventh and final assignment of error, appellant contends that
he was denied the effective assistance of trial counsel in violation of his rights under the
Sixth and Fourteenth Amendments to the United States Constitution. We disagree.
No. 21AP-329 47
{¶ 155} In considering claims of ineffective assistance of counsel, courts
" 'indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.' " State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-
2815, ¶ 101, quoting Strickland v. Washington, 466 U.S. 668, 689. A verdict adverse to a
criminal defendant is not of itself indicative of ineffective assistance of trial counsel. In re
J.J.A., 10th Dist. No. 09AP-242, 2010-Ohio-672, ¶ 14, citing State v. Hester, 45 Ohio St.2d
71, 75 (1976).
{¶ 156} To establish a claim of ineffective assistance of counsel, appellant must
satisfy a two-prong test. First, he must show that counsel's performance was so deficient
that it was unreasonable under prevailing professional norms. Strickland at 687-88. If
appellant can so demonstrate, he must then establish that he was prejudiced by the
deficient performance. Id. To show prejudice, he must establish that there is a reasonable
probability that but for his counsel's unprofessional errors, the result of the trial would have
been different. A "reasonable probability" is one sufficient to undermine confidence in the
outcome. Id. at 694.
{¶ 157} In analyzing a claim of ineffective assistance of counsel, an appellate
court need not address the two prongs of an ineffective assistance claim in the order set
forth in Strickland. State v. Gibson, 11th Dist. No. 2007-P-0021, 2007-Ohio-6926, ¶ 26,
citing State v. Jackson, 11th Dist. No. 2002-Ohio-27, 2004-Ohio-2442, ¶ 9. Thus, a court
need not determine whether counsel's performance was deficient before examining the
prejudice suffered by the defendant resulting from the alleged deficiencies. Id. "The object
of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed." Id., citing Jackson at ¶ 11, citing Strickland
at 697.
{¶ 158} Appellant contends his trial counsel was ineffective in (1) failing to
object to the trial judge presiding over the certification hearing, (2) failing to request that
appellant be apprised of the judge's involvement in the certification hearing prior to the
reaffirmance of his jury waiver, (3) failing to object to the prosecutor's use of leading
questions during the forfeiture by wrongdoing hearing, and (4) failing to object to the
testimony and photograph regarding appellant's prior possession of a handgun and the
No. 21AP-329 48
testimony about appellant's participation in a pattern of gang-related criminal conduct.
Appellant contends that counsel's errors cumulatively undermine confidence in the
outcome of the trial. We disagree.
{¶ 159} We have already concluded that appellant was not prejudiced by the
trial judge presiding over the certification hearing, the circumstances surrounding his
reaffirmance of his jury waiver, or the admission of the evidence pertaining to his prior
possession of a handgun and participation in gang-related criminal conduct. As to
appellant's remaining contention, i.e., the failure to object to the prosecutor's use of leading
questions at the forfeiture by wrongdoing hearing, we note that "Evid.R. 611(C) does not
preclude the use of leading questions on direct examination; instead, the rule provides that
'it is within the trial court's discretion to allow leading questions on direct examination.' "
State v. Williams, 4th Dist. No. 15CA3, 2016-Ohio-733, ¶ 34, quoting State v. Jackson, 92
Ohio St.3d 436, 449 (2001). As such, the failure to object to a prosecutor's leading
questions does not constitute ineffective assistance of counsel. Id., citing Jackson.
Moreover, even if appellant's trial counsel had objected to the prosecutor's leading
questions and the trial court had sustained the objections, it is likely that the prosecutor
would have elicited the same testimonial evidence from Hughes and Vass through further
questioning. We thus reject appellant's contention in the absence of any showing of
prejudice.
{¶ 160} The seventh assignment of error is overruled.
{¶ 161} Having overruled all seven of appellant's assignments of error, we
hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and MENTEL, JJ., concur.