State v. Stewart

[Cite as State v. Stewart, 2020-Ohio-5344.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-615
v. : (C.P.C. No. 16CR-4807)
Juan A. Stewart, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 19, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee. Argued: Barbara A.
Farnbacher.
On brief: Yeura Venters, Public Defender, and George M.
Schumann, for appellant. Argued: George M. Schumann.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Juan A. Stewart, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of two counts of murder and
accompanying firearm and repeat violent offender specifications. Finding no merit to the
appeal, we affirm.
{¶ 2} On September 1, 2016, a Franklin County Grand Jury indicted appellant on
one count of purposeful murder in violation of R.C. 2903.02(A), one count of felony murder
in violation of R.C. 2903.02(B), and one count of having a weapon while under disability in
violation of R.C. 2903.11. Related to both murder counts, the indictment alleged repeat
No. 19AP-615 2
violent offender specifications, and for all three counts, the indictment alleged firearm
specifications. All charges arose from the shooting death of Edward Williams on
January 20, 2015.
{¶ 3} Appellant waived his right to a jury trial on the weapon under disability count
and related firearm specification, as well as the repeat violent offender specifications
attached to the murder counts. In May 2018, a jury trial began on the murder charges and
related firearm specifications. The trial ended with a hung jury on both counts; accordingly,
the trial court declared a mistrial. The trial court found appellant guilty on the weapon
under disability count and attached firearm specification. In an amended judgment entry
filed June 7, 2018, the trial court sentenced appellant to a two-year prison term on the
weapon under disability offense and a consecutive three-year term on the firearm
specification, for an aggregate prison term of five years. Appellant appealed the trial court's
judgment; we affirmed. State v. Stewart, 10th Dist. No. 18AP-496, 2020-Ohio-1245.
{¶ 4} In August 2019, appellant was retried before a jury on the murder charges
and related firearm specifications. The evidence presented by the state established the
following.
{¶ 5} Roberta Turner, a long-time friend of appellant, often socialized with him at
a club Damon Fluellen ran out of his house located at 833 St. Clair Avenue. The club was
open all day and night and there were always "lots of people coming and going." (Tr. at
414.) Appellant lived in the neighborhood and, according to Turner, regarded Fluellen as a
mentor.
{¶ 6} Late in the evening on January 19, 2015, Turner was with appellant at a bar
located within a 3 to 4 minute walk from Fluellen's house. Turner left the bar around 11:45
p.m.; appellant remained there. At approximately 12:20 a.m. on January 20, 2015, Turner
exchanged several text messages and phone calls with Fluellen, which prompted her to text
appellant asking if he was "alright." (Tr. at 403.)
{¶ 7} Meanwhile, at approximately 12:12 a.m., Verlie Smith, a COTA bus driver,
approached the intersection of 2nd and St. Clair Avenues and heard four gunshots. He
observed an African-American man walking away from a truck parked on St. Clair in the
area where the gunshots were fired. The man then walked toward two nearby houses.
Smith could not see if the man entered one of the houses or walked between them. Almost
No. 19AP-615 3
simultaneously, a car parked in front of the truck drove away. The man Smith had seen
walking was not in the car. For safety reasons, Smith sat through three cycles of red lights.
He eventually turned onto St. Clair and passed by the truck. Through the open driver's
door, he observed a man slumped over in the driver's seat.
{¶ 8} Columbus Police Officer Jason Kulp and other officers were dispatched to the
scene of the shooting. Kulp described the neighborhood as a "high-crime area" known for
drug activity and shootings. (Tr. at 264.) Upon arrival, Kulp observed the victim seated in
a truck parked directly across the street from 833 St. Clair. He then observed a man, later
identified as Fluellen, standing on the front porch of 833 St. Clair clad only in his
underwear. At Kulp's direction, Fluellen re-entered the house. A short time later, Fluellen
came back outside, this timely fully clothed. Because Fluellen's behavior seemed suspicious,
officers sought and received permission to search his house. The search revealed no
evidence linked to the shooting.
{¶ 9} The police interviewed Smith, who described the man he saw walking away
from the truck as approximately 6 feet tall, weighing between 180 and 200 pounds, wearing
a dark jacket and pants and a knit, toboggan-type hat. He did not see a bill on the hat
because the man was walking away and had his back to Smith.
{¶ 10} At trial, Kulp identified surveillance video obtained from the Milo-Grogan
Recreation Center, which is located across the street from the scene of the shooting.1 The
video depicts a car with its headlights on approach and park on the street across from 833
St. Clair. Approximately three minutes later, a truck arrives and parks behind the car. The
video then depicts flashes of gunfire near the driver's side of the truck, followed by the
shadow of a person walking between the car and the truck. The car then drives away. Very
shortly thereafter, a light at the back of 833 St. Clair illuminates, and the back door opens
momentarily. The video then depicts a person moving around in the backyard.
{¶ 11} Thomas Martin lives on Starr Avenue behind 833 St. Clair. In the early
morning hours of January 20, 2015, he observed a police helicopter with its lights
illuminated hovering over his house. Ten to fifteen minutes later, he heard the chain-link
fence in his backyard rattle; he assumed that someone had jumped over the fence. Later
that morning he found a red Chicago Bulls baseball hat on the ground along the fence line.
1 The surveillance video, admitted without objection as State's Ex. J, was played for the jury.
No. 19AP-615 4
Thinking the person who lost it would likely return for it, he left it there. He retrieved the
hat the next day and turned it over to the police.
{¶ 12} Detective Suzanne Nissley of the Crime Scene Search Unit identified several
photographs taken at the crime scene which depict, among other things, Williams' body
inside the truck.2 The photographs also depict evidence recovered from the scene,
including four .40 caliber spent shell casings found in the street and on the sidewalk near
Williams' vehicle, as well as a .40 caliber Smith & Wesson semi-automatic handgun (with 1
live round in the chamber and a magazine containing 8 live rounds) found in the brush
beside a fence by the alley at the rear of 833 St. Clair.
{¶ 13} Matthew White, a firearms examiner with the Bureau of Criminal
Investigation ("BCI"), examined and test-fired the recovered weapon, found it to be
operable, and determined that the four spent casings and three bullets recovered from the
scene (two of which were recovered from Williams' body) had been fired from that weapon.
{¶ 14} Timothy Augsback, a BCI forensic scientist, analyzed DNA swabs taken from
the firearm, including the trigger, the handled areas (the grip and the slide), the magazine,
and the nine live rounds. That analysis revealed that the trigger, the magazine, and the
handled areas contained a mixture of DNA, with appellant included as the only major
contributor. DNA deposited by the minor contributors was insufficient to test. No DNA
profile was obtained from the nine rounds. Augsback also analyzed DNA swabs taken from
the baseball hat, which revealed a mixture of DNA, with appellant included as the only
major contributor. He acknowledged that it is not possible to determine how or when DNA
is deposited on an item; accordingly, he could not definitively state that appellant fired the
weapon on January 20, 2015.
{¶ 15} Detective James Howe conducted a digital forensic examination and cell-site
analysis of appellant's cell phone for the relevant time period. Within minutes of the
shooting, appellant both received and sent calls and text messages from the general vicinity
where the shooting occurred. Appellant's browser history revealed that after the shooting,
he searched a local news website numerous times for information pertaining to the
shooting.
2 Nissley testified by videotaped deposition, which was admitted without objection as State's Ex. DD and
played for the jury. Audio from the deposition was transcribed and is included in the trial transcript.
No. 19AP-615 5
{¶ 16} Appellant presented the following evidence. Katie Hodge, a friend of
appellant, communicated via cell phone with him several times on January 19 and 20, 2015.
According to Hodge, appellant gave no indication during these communications that he was
involved in Williams' shooting.3
{¶ 17} Jakita Smith-Goolsby, the mother of appellant's children, averred that
appellant grew up in the Milo-Grogan area and lived there with his mother on January 20,
2015. He had many friends in the area with whom he often shared clothing items, including
his vast collection of hats. She spoke with appellant by cell phone minutes before and after
the shooting. She found nothing odd about their conversations; indeed, appellant was
breathing normally and otherwise gave her no reason to believe that anything unusual had
happened. She was shocked to later learn that appellant had been charged with Williams'
murder.
{¶ 18} In addition to the testimony and exhibits presented, the parties entered into
numerous stipulations. (State's Ex. GG.) Many of the stipulations confirmed the accuracy
of evidence submitted by the state, including the events depicted on various surveillance
videos (State's Ex. K, J, and L), records from appellant's cell phone (State's Ex. Q, Q1, Q2a
and Q3a), records from Turner's cell phone (State's Ex. CC), records from Williams' cell
phone (State's Ex. P1), aerial photographs of the crime scene (State's Ex. I), autopsy
photographs and findings of Franklin County Deputy Coroner Dr. Kenneth Gerston (State's
Ex. B11, B14, B17, B20, B29, and U), a photograph of Williams (State's Ex. V), still images
of appellant taken from the cell phone video recorded on November 9, 2014 (State's Ex. Y,
Y1, Y2, and Y3), photographs of appellant (Def. Ex. 1A through 1RR), and photographs
depicting the location and condition of the firearm when recovered from the alley and fence
line behind 833 St. Clair shortly after the homicide (State's Ex. A38, A39, A40, and A41.)
The stipulations also included chain-of-evidence information related to the baseball hat
(State's Ex. S1), DNA standards and submissions from Williams and appellant, and
information regarding recovery and submission of the firearm and ammunition (State's Ex.
M and N3b).
3 Hodge was not available to testify in person at the August 2019 trial. The parties agreed to have the
transcript of her testimony from the May 2018 trial read into the record. The jury was advised of this
circumstance.
No. 19AP-615 6
{¶ 19} Following deliberations, the jury returned verdicts finding appellant guilty of
both murder charges and related firearm specifications. The trial court found appellant
guilty of the repeat violent offender specifications.
{¶ 20} At sentencing, the trial court merged the murder counts, and pursuant to the
state's election, sentenced appellant to 15 years to life for the purposeful murder. In
addition, the court imposed a consecutive 3-year sentence on the firearm specification and
a 1-year consecutive sentence on the repeat violent offender specification. The court further
ordered that the sentence on the murder counts be served consecutive to the 3-year firearm
specification but concurrent to the 2-year sentence imposed on the weapon under disability
count. In sum, appellant's prison sentence was 22 years to life. On August 19, 2019, the
trial court issued a judgment entry memorializing appellant's conviction and sentence.
{¶ 21} Appellant timely appeals, asserting the following two assignments of error:
[I]. The trial court committed prejudicial error by allowing
the admission of "other acts" evidence that was inadmissible
and otherwise unfairly prejudicial, thereby depriving
appellant of a fair trial.
[II]. The verdicts of guilt as to murder, and felony murder,
and the attached firearm specifications are against the
manifest weight of the evidence.
{¶ 22} In his first assignment of error, appellant contends the trial court improperly
admitted a November 9, 2014 cell phone video from appellant's Facebook page as well as
three still images taken from the video which show him holding and firing a weapon.4
Appellant claims the state utilized this evidence to prove that appellant had access to
handguns, knew how to use them, and had a propensity to fire them. Accordingly, appellant
maintains that the video and photographs constitute impermissible other acts evidence
under Evid.R. 404(B) and impermissible prejudicial evidence under Evid.R. 403(A).
Appellant claims the admission of this evidence prejudicially affected his substantial rights
to a fair verdict.
{¶ 23} Prior to admission of the evidence, defense counsel objected on grounds that
its probative value was substantially outweighed by the danger that the jury would
4 The video, admitted over objection as State's Ex. Y, was played for the jury. The still images were admitted
over objection as State's Ex. Y1, Y2, and Y3.
No. 19AP-615 7
improperly infer that appellant acted in conformity with the conduct depicted in the video
and photographs. Defense counsel argued that "[t]here's no evidence that it's his gun, [or]
what the caliber is." (Tr. at 380.) The trial court overruled the objection, stating:
I think we've dealt with this before. Number one, it's within
three months of the actual shooting, I believe. The firearm in
the video and the photographs appear similar to the actual
firearm.
And, you know, I guess it's a two-edged sword for you, because
maybe that explains why your guy's DNA is on that gun. I
think it's certainly relevant to the fact that he either had a
similar firearm or handled a firearm.
I'm happy to give the jury a limiting instruction if either side
thinks that's appropriate with regard to it's [sic] being
admitted for whatever relevance it might have to the similarity
of the gun. Nobody can say it's the same gun. But, at any rate,
I do think it's relevant, and I don't think its probative value is
outweighed by any prejudice.
Id. at 380-81.
{¶ 24} Immediately prior to Turner's testimony regarding the video, the trial court
instructed the jury as follows:
You're going to see the video. She's going to talk about the
video. I believe the video is going to show Mr. Stewart with a
firearm at an earlier date. I want to instruct you that it's not
direct proof that it's the same firearm.
That's a question of fact for you to look at. You can consider
whether the firearm looks the same, is it similar, but there's
no direct proof that's the firearm in this case.
Also, simply because he had a firearm on that date and time,
you can't consider that as evidence of * * * bad character
because he had a firearm and whatever he was doing with the
firearm. It's being admitted with regard to, you know, is it
similar? Is it the same? That's a question of fact for you to
look at and for DNA issues.
And both sides can make arguments about that, but you're not
to consider it as bad character evidence or that he's guilty of
this charge simply because he had a firearm from an earlier
time. You're allowed to consider it for the reasons that I told
you.
No. 19AP-615 8
Id. at 404-05.
{¶ 25} Thereafter, Turner identified appellant as the person depicted in the video
talking about a "strap," which is a street term for a gun. (State's Ex. Y, Tr. at 408.) As
further identified by Turner, the video also depicts appellant holding a handgun, tucking it
into the waistband of his pants, and subsequently firing it at the ground. Turner also
confirmed that appellant was the person depicted in the photographs.
{¶ 26} " 'A trial court has broad discretion over the admission or exclusion of
evidence, and a reviewing court generally will not reverse an evidentiary ruling absent an
abuse of discretion that materially prejudices the affected party.' " State v. Hughes, 10th
Dist. No. 14AP-360, 2015-Ohio-151, ¶ 41, quoting State v. Darazim, 10th Dist. No. 14AP-
203, 2014-Ohio-5304, ¶ 16. Moreover, "[e]rror in the admission or exclusion of evidence
is grounds for reversal only where substantial rights of the complaining party were affected
or substantial justice appears not to have been done." Jarvis v Hasan, 10th Dist. 10AP-
578, 2015-Ohio-1779, ¶ 70, citing Faieta v. World Harvest Church, 10th Dist. No. 08AP-
527, 2008-Ohio-6959, ¶ 73. "To show an evidentiary ruling has affected a substantial right,
the party must demonstrate that the alleged error impacted the final determination of the
case." Id., citing Lips v. Univ. of Cincinnati College of Medicine, 10th Dist. No. 12AP-374,
2013-Ohio-1205, ¶ 49.
{¶ 27} Appellant contends that admission of the video and photographs was
impermissible pursuant to Evid.R. 403(A) and 404(B). Evid.R. 401 defines "[r]elevant
evidence" as "evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence." All relevant evidence is admissible unless prohibited by
evidentiary rule, statute, or constitutional provision. Evid.R. 402.
{¶ 28} Evid.R. 403(A) provides that "[a]lthough relevant, evidence is not admissible
if its probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury." Although most evidence offered by the
state is prejudicial, not all evidence is unfairly prejudicial. State v. Skatzes, 104 Ohio St.3d
195, 2004-Ohio-6391, ¶ 107. "Unfair prejudice is that quality of evidence which might
result in an improper basis for a jury decision." State v. J.L.S., 10th Dist. No. 08AP-33,
2012-Ohio-181, ¶ 39, citing Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172 (2001).
No. 19AP-615 9
The court must balance the prejudicial effect of evidence against its probative value. State
v. Webster, 8th Dist. No. 102833, 2016-Ohio-2624, ¶ 46.
{¶ 29} Evid.R. 404(B) sets forth the common law rule regarding the admissibility of
evidence of previous or subsequent criminal acts that are wholly independent of the offense
for which an accused is on trial. The rule provides that "[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show" that he acted
in conformity therewith. The rule then incorporates a nonexhaustive list of exceptions to
the common law rule, stating that "[e]vidence of other crimes, wrongs, or acts * * * may,
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident."
{¶ 30} "An accused cannot be convicted of one crime by proving he committed other
crimes or is a bad person." State v. Jeffers, 10th Dist. No. 06AP-358, 2007-Ohio-3213, ¶ 6,
citing State v. Jamison, 49 Ohio St.3d 182, 183 (1990). "Because Evid.R. 404(B) codifies
an exception to the common law with respect to evidence of other acts of wrongdoing, it
must be construed against admissibility, and the standard for determining admissibility of
such evidence is strict." Id., citing State v. Broom, 40 Ohio St.3d 277 (1988), paragraph
one of the syllabus. "The admissibility of other acts evidence is carefully limited because of
the substantial danger that the jury will convict the defendant solely because it assumes
that the defendant has a propensity to commit criminal acts, or deserves punishment
regardless of whether he or she committed the crime charged in the indictment." State v.
Schaim, 65 Ohio St.3d 51, 59 (1992).
{¶ 31} Pursuant to Evid.R. 404(B), other acts evidence is admissible if: (1) there is
substantial proof that the alleged other acts were committed by the defendant; and (2) the
evidence tends to prove motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident. Jeffers at ¶ 8, citing State v. Lowe, 69 Ohio St.3d 527,
530 (1994). Both prongs must be satisfied for the evidence to be admissible. Id., citing
State v. Echols, 128 Ohio App.3d 677, 692 (1st Dist.1998).
{¶ 32} The video and photographs provide substantial proof that appellant held and
fired a handgun on November 9, 2014. Comparison of that handgun with photographs of
the handgun used to kill Williams reveal physical similarities between the two; both
weapons are semi-automatic with two-toned (silver and black) metallic coloration. The
No. 19AP-615 10
issue before us is whether appellant's prior act of holding and firing a weapon that appears
to be physically similar to the one used in the murder tended to prove any of the enumerated
exceptions to Evid.R. 404(B).
{¶ 33} At trial, the state did not use the video and photographs as evidence of
appellant's bad character. Rather, the state used the evidence to prove appellant's identity
as Williams' shooter. In closing argument, the state averred that the murder weapon
"appears to be the same weapon that Juan Stewart had a short time earlier in a video. You
can look at the features of the gun, and you can't say it is the gun. You can never say that
unless you know the serial number or have identification. But look at that gun. Look at
how he's holding it. Look at how he was holding it in the video when he fired the shots. We
can even put the defendant in the possession of the same or very similar gun." (Tr. at 583.)
{¶ 34} Other acts evidence is admissible to show identity in two circumstances:
(1) when the other acts " 'form part of the immediate background of the alleged act which
forms the foundation of the crime charged in the indictment' and which are 'inextricably
related to the alleged criminal act,' " and (2) when the other acts involve a "unique,
identifiable plan of criminal activity" so as to establish that the accused has a modus
operandi or a "behavioral fingerprint" that he used in carrying out the charged offense.
Lowe, 69 Ohio St.3d at 531, quoting State v. Curry, 43 Ohio St.2d 66, 73 (1975). Other acts
evidence necessarily "must be related to and share common features with the crime in
question" to be admissible to prove identity through a certain modus operandi. Id. at
paragraph one of the syllabus.
{¶ 35} The first circumstance is unquestionably absent here. Appellant's firing of a
weapon more than two months prior to the instant offense does not "form part of the
immediate background" of, and is not "inextricably related" to, Williams' murder. Instead,
those actions are chronologically and factually separate occurrences.
{¶ 36} As to the second circumstance, we are not convinced that appellant's act of
holding and firing a weapon that appears to be physically similar to the weapon used in
Williams' murder provided a "unique, identifiable plan of criminal activity" that was helpful
in determining the identity of Williams' shooter. "Other incidents must form a 'unique,
identifiable plan of criminal activity' that, while not necessarily identical in all respects, is
probative of the identity of the accused." State v. Halsell, 9th Dist. No. 24464, 2009-Ohio-
No. 19AP-615 11
4166, ¶ 16, quoting Jamison, 49 Ohio St.3d at 183. The video depicts appellant firing a
weapon at the ground outside a house during a party. Although appellant was in close
proximity to several persons when he fired the weapon, he did not point the weapon at or
even threaten anyone with it either prior to or after he fired it. Appellant's actions at the
party, although reckless and potentially dangerous, are not probative of the identity of
Williams' killer. Williams was not killed as a result of the shooter's reckless actions; rather,
he was brutally murdered, shot at close range while seated in his truck.
{¶ 37} Further, the state presented no evidence specifically linking the gun appellant
fired at the party with the gun used in Williams' murder. None of the state's witnesses,
including the police officers and the ballistic expert, were shown the video or questioned
about any similarities between the two guns. No testimony established the caliber of the
gun appellant fired at the party, nor did testimony establish any shared specific or unique
similarities tending to suggest that only appellant carried that style or make of weapon,
which may distinguish him from other criminals. Jeffers, 10th Dist. No. 06AP-358, 2007-
Ohio-3213 at ¶ 12. In addition, "the mere possession of a firearm, in and of itself, is not
distinctive enough to demonstrate identity through pattern of conduct." Id. " '[U]se of such
"garden variety" criminal acts to establish a pattern can only lead to an inference of
propensity that is improper under Rule 404(B).' " Id., quoting United States v. Thomas,
321 F.3d 627, 635 (7th Cir.2003). "Given the number of members of the public who own
firearms, that [an accused] possessed a firearm two weeks before the murder here does not
distinguish his identity from that of the general population." Id.{¶ 38} Under the circumstances of this case, we conclude that appellant's holding
and firing a similar-looking handgun on a prior occasion was not distinctive enough to
demonstrate his identity as the shooter through a pattern of conduct. Thus, the prior act
did not meet the strict requirement of a probative "behavioral fingerprint."
{¶ 39} In addition, "other acts offered as probative evidence of the matter must
generally be temporally connected to the alleged crime." Id. at ¶ 9, citing State v. Griffin,
142 Ohio App.3d 65, 72 (1st Dist.2001). "The prior act must not be too remote and must be
closely related in time to the offense charged." Id., citing Schaim, 65 Ohio St.3d at 60. "A
prior act that is too distant in time has no permissible probative value." Id., citing State v.
Snowden, 49 Ohio App.2d 7, 10 (12th Dist.1976). On this point, appellant relies on State v.
No. 19AP-615 12
Parrish, 71 Ohio App.3d 659, 666 (10th Dist.1991), wherein this court found that evidence
that the defendant possessed a firearm two months after the crime occurred was not
relevant to show that the defendant had access to firearms at the time of the shooting
because it was too remote in time. Indeed, we stated that "[t]he time frame involved is
critical to the determination of the relevancy of the evidence. Had the evidence shown that
[defendant] possessed firearms within a couple of weeks immediately prior to or
immediately after the victim was shot, the evidence may have been relevant to have shown
that the [defendant] had the opportunity to possess firearms. However, the evidence
introduced by the prosecution was not relevant because of the time frame and did not meet
the requirements enumerated in Evid.R. 404(B) or R.C. 2945.59 when such are strictly
construed." Id. at 666.
{¶ 40} Here, the evidence established that appellant held and fired a weapon on
November 9, 2014, over two months prior to Williams' murder. Pursuant to Parrish,
appellant's prior act was too distant in time to have permissible probative value.
{¶ 41} The state argues that any error in the trial court's admission of the challenged
evidence was harmless due to the trial court's limiting instruction and the strength of the
other admissible evidence. We agree.
{¶ 42} " 'Error in the admission of other acts [evidence] is harmless when there is no
reasonable possibility that the [evidence] contributed to the accused's conviction.' " State
v. S.A.A., 10th Dist. No. 17AP-685, 2020-Ohio-4650, ¶ 28, quoting State v. Tench, 156 Ohio
St.3d 85, 2018-Ohio-5205, ¶ 177. " '[A]n improper evidentiary admission under Evid.R.
404(B) may be deemed harmless error on review when, after the tainted evidence is
removed, the remaining evidence is overwhelming.' " Id., quoting State v. Morris, 141 Ohio
St.3d 399, 2014-Ohio-5052, ¶ 32. Moreover, as this court noted in S.A.A, both the Supreme
Court of Ohio and this court have stated that a trial court's limiting instructions, which the
jury is presumed to follow, reduce the chance that an accused was materially prejudiced by
the admission of other acts evidence, even if improper. Id., citing State v. Peterson, 10th
Dist. No. 12AP-646, 2013-Ohio-1807, ¶ 23, citing State v. Williams, 134 Ohio St.3d 521,
2012-Ohio-5695, ¶ 24. For the reasons cited below, we agree that admission of the other
act evidence, even if improper, was harmless beyond a reasonable doubt.
No. 19AP-615 13
{¶ 43} As noted above, prior to introduction of the video and photographs, the trial
court instructed the jury that it could consider appellant's having a firearm and doing
"whatever he was doing with the firearm" (which we construe as firing it), only in
determining whether that firearm looked similar to the firearm used in the murder and not
to prove appellant's bad character or that he was guilty of the instant offense. We presume
the jury followed this instruction. State v. Trewartha, 10th Dist. No. 05AP-513, 2006-
Ohio-5040, ¶ 20.
{¶ 44} Further, the state presented substantial competent, credible evidence of
appellant's guilt unrelated to the prior actions depicted in the November 9, 2014 video.
First, and most importantly, the evidence established that appellant's DNA was on the
murder weapon. Appellant's DNA was also found on a hat recovered from the back yard of
a nearby neighbor who reported that he believed someone had jumped over his chain-link
fence within 10 to 15 minutes of the shooting. The evidence also established that the
shooting occurred in front of a house owned by appellant's mentor, that the shooter walked
toward that house immediately after the shooting, and that the murder weapon was
recovered from brush near an alley at the rear of that house. In addition, records of
appellant's cell phone usage established that he was in the area at the time of the shooting,
and that after the shooting, he searched a news website numerous times for information
about the shooting. In sum, the state presented "abundant, compelling," and admissible
evidence of appellant's guilt. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 49.
{¶ 45} On this record, the impact of any error in admitting the video and
photographs was minimal. Appellant's substantial rights were not prejudiced because there
is no reasonable possibility that this evidence contributed to his conviction given the other
evidence presented at trial.
{¶ 46} Appellant's first assignment of error is overruled.
{¶ 47} In his second assignment of error, appellant contends his convictions for
purposeful murder, felony murder, and the attached firearm specifications are against the
manifest weight of the evidence. Appellant does not challenge the legal sufficiency of the
evidence.
{¶ 48} When presented with a manifest weight challenge, an appellate court engages
in a limited weighing of the evidence to determine whether competent, credible evidence
No. 19AP-615 14
supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201, 2010-Ohio-4738,
¶ 32, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). " 'When a court of appeals
reverses a judgment of a trial court on the basis that the verdict is against the manifest
weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the
factfinder's resolution of the conflicting testimony.' " Thompkins at 387, quoting Tibbs v.
Florida, 457 U.S. 31, 42 (1982). However, "in conducting our review, we are guided by the
presumption that the jury, or the trial court in a bench trial, 'is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.' " State v. Cattledge,
10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v. Cleveland, 10
Ohio St.3d 77, 80 (1984). Accordingly, this court affords great deference to the jury's
determination of witness credibility. State v. Redman, 10th Dist. No. 10AP-654, 2011-
Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 55.
{¶ 49} 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. Reversal on manifest weight grounds is appropriate " 'only in the
exceptional case in which the evidence weighs heavily against the conviction.' " Thompkins
at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 50} Essentially, appellant contends that his convictions are against the manifest
weight of the evidence because the evidence supporting the jury's verdicts was
circumstantial. We agree that the state's case against appellant was purely circumstantial.
No eyewitness testimony positively identified appellant as the shooter. No evidence
established that appellant knew Williams or had any connection to him, let alone had a
reason to murder him. No evidence established that appellant was upset, angry, or acting
strangely prior to or after the murder. However, " '[a] conviction can be sustained based
on circumstantial evidence alone.' " State v. Ford, 10th Dist. No. 16AP-282, 2016-Ohio-
8350, ¶ 13, quoting State v. Franklin, 62 Ohio St.3d 118, 124 (1991), citing State v. Nicely,
No. 19AP-615 15
39 Ohio St.3d 147, 154-55 (1988). Indeed, "[c]ircumstantial evidence possesses the same
probative value as direct evidence." Id., citing State v. Sowell, 10th Dist. No. 06AP-443,
2008-Ohio-3285, ¶ 89. "In fact, circumstantial evidence may be more certain, satisfying
and persuasive than direct evidence." Id., citing State v. McBride, 10th Dist. No. 10AP-585,
2011-Ohio-1490, ¶ 26, citing State v. Ballew, 76 Ohio St.3d 244, 249 (1996).
{¶ 51} A thorough review of the record reveals that the state presented ample
competent, credible circumstantial evidence proving appellant's guilt. Appellant's DNA
was on the murder weapon, and he was the only major contributor of that DNA. Appellant
challenges the reliability of this DNA evidence, noting Augsback's testimony that the
weapon had a mixture of other persons' DNA, and his admission that it was not possible to
determine how or when appellant's DNA was deposited on the weapon. However, it was
within the province of the jury to view Augsback as he testified, assess his credibility, and
accept or discount his testimony, or portions thereof, as it deemed appropriate. State v.
Wren, 10th Dist. No. 08AP-320, 2008-Ohio-6512, ¶ 10, citing State v. Burke, 10th Dist. No.
02AP-1238, 2003-Ohio-2889. A jury is "free to believe 'all, part, or none of a witness's
testimony.' " State v. Ellis, 10th Dist. No. 16AP-279, 2017-Ohio-1458, ¶ 33, quoting State
v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21.
{¶ 52} Appellant's DNA was also found on the baseball hat found near the crime
scene, and he was the only major contributor of that DNA. Appellant challenges the
reliability of this evidence, noting Smith's testimony that the shooter was wearing a knit
hat; however, Smith explained that he could not see a bill on the hat because the shooter
was facing away from him. It was within the province of the jury to accept all, part, or none
of Smith's testimony, including his explanation regarding the type of hat the shooter wore.
Appellant also cites Smith-Goolsby's testimony that other people wore appellant's hats.
Again, it was within the jury's purview to assess the credibility of each witness appearing
before it, including the witnesses who testified on behalf of appellant. The jury simply could
have disbelieved Smith-Goolsby's testimony, as she is the mother of appellant's children
and thus may have had self-serving reasons to cast doubt on his guilt. "A conviction is not
against the manifest weight of the evidence because the trier of fact chose to believe the
state's version of the events over the defendant's version." Id., citing State v. Gale, 10th
Dist. No. 05AP-708, 2006-Ohio-1523, ¶ 19.
No. 19AP-615 16
{¶ 53} The evidence also established that the shooting occurred in front of a house
owned by appellant's mentor, Fluellen, and that the shooter walked toward that house
immediately after the shooting. Appellant claims that this evidence did not necessarily
establish a connection to Fluellen. Appellant's argument suggests that the location of the
shooting and the shooter's subsequent travels were merely coincidental. However,
appellant's argument fails to take into account the fact that the murder weapon bearing his
DNA was recovered near the rear of Fluellen's house.
{¶ 54} Finally, evidence of appellant's cell phone usage established that he was in
the area at the time of the shooting, and that after the shooting, he searched a news website
numerous times for information about the shooting. Appellant asserts that he checked the
news sites only because the homicide occurred in his neighborhood, directly in front of his
close friend's house, and he simply was interested in learning what had happened.
{¶ 55} All of appellant's challenges to the circumstantial nature of the evidence were
matters that were presented to the jury, which was in the best position to evaluate the
evidence presented at trial, including assessing the credibility of the witnesses. After
reviewing the entire record, weighing the evidence and all reasonable inferences, and
considering the credibility of witnesses, we conclude that the jury did not clearly lose its
way or create such a manifest injustice that appellant's convictions for purposeful and
felony murder and related firearm specifications must be reversed and a new trial ordered.
{¶ 56} Appellant's second assignment of error is overruled.
{¶ 57} Having overruled appellant's first and second assignments of error, we
hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, J., concurs.
NELSON, J., concurs in judgment only.
NELSON, J., concurring in judgment only.
{¶ 58} I do not believe that the trial court's admission of evidence reflecting that Mr.
Stewart had had control over a gun that jurors could find looked like the murder weapon
used two and a half months later (and recovered with Mr. Stewart's DNA on it) was an abuse
of discretion; I would not overrule the trial court's appropriately circumscribed evidentiary
No. 19AP-615 17
ruling under these circumstances. And I agree that Mr. Stewart's convictions were not
against the manifest weight of the evidence. I therefore concur in the judgment of the court.