State v. Gordon, 98 N.E.3d 251

Background

Deandre Gordon was indicted for aggravated robbery; victim Tevaughn Darling later recorded a police video statement identifying Gordon. Gordon retained Aaron Baker.
Baker received the DVD of the victim’s statement in discovery, copied it to his office computer, and showed it to Gordon while Gordon was on bond.
An edited portion of the video later appeared on Instagram; Darling received threats and was concerned for his safety. A grand jury indicted Gordon for intimidating a witness based on the posting and related conduct.
The prosecutor moved to join the robbery and intimidation indictments for trial; the trial court granted joinder. The prosecutor also moved to disqualify Baker as a material witness; the trial court granted disqualification.
Gordon did not timely appeal the disqualification order; he did not object to joinder at trial. He was convicted on the robbery charges and acquitted on the intimidation count. The court of appeals found joinder prejudicial (plain error) and ordered a new trial; the Ohio Supreme Court reversed.

Issues

Issue	Plaintiff's Argument (Gordon)	Defendant's Argument (State)	Held
Whether the trial court erred by joining the robbery and intimidation indictments	Joinder prejudiced Gordon because it led to Baker's disqualification and denied his choice of counsel	Joinder was proper under Crim.R. 8(A)/13 because the offenses were connected and constituted a course of conduct	Joinder was proper; no plain error in joinder and the court reversed the appellate court
Whether Gordon was prejudiced by joinder such that plain error occurred	Joinder caused structural prejudice (loss of counsel of choice) so reversal is required without showing outcome effect	Any alleged prejudice was not shown to have affected the trial outcome; Baker was a material witness for both counts	No plain error; appellate court erred by presuming prejudice without showing effect on outcome
Whether Baker’s disqualification was appealable and central to the joinder claim	Gordon treats disqualification as effect of joinder and argues it supports reversal	State notes Baker’s disqualification was a final pretrial order that Gordon failed to timely appeal	Court held Baker’s disqualification was a final appealable order; Gordon waived immediate appeal, so disqualification ruling is not squarely before the Court
Whether Baker was a material witness in the robbery case	Gordon contended Baker was not a material witness as to the robbery charges	State argued Baker was material because only he could link Gordon to having seen the video before the Instagram post and the intimidation evidence was admissible in the robbery trial	Court held Baker was a material witness for the intimidation charge and, because intimidation evidence was admissible as consciousness of guilt in the robbery case, Baker was material to both cases

Key Cases Cited

State v. Chambliss, 128 Ohio St.3d 507 (2011) (erroneous deprivation of counsel of choice is structural error)
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (right to counsel of choice and consequences of wrongful deprivation)
State v. Franklin, 62 Ohio St.3d 118 (1991) (policy favoring joinder of offenses)
Bruton v. United States, 391 U.S. 123 (1968) (efficiency and witness convenience support joinder)
State v. Torres, 66 Ohio St.2d 340 (1981) (defendant bears burden to show prejudice from joinder under Crim.R. 14)
State v. Conway, 109 Ohio St.3d 412 (2006) (evidence of conduct to impede witness is admissible to show consciousness of guilt)
State v. Tibbetts, 92 Ohio St.3d 146 (2001) (Evid.R. 404(B) and admissibility of similar acts as consciousness of guilt)
State v. Long, 53 Ohio St.2d 91 (1978) (plain-error standard requires caution and manifest miscarriage of justice)
State v. Rogers, 143 Ohio St.3d 385 (2015) (plain-error requires showing effect on outcome)
State v. Perry, 101 Ohio St.3d 118 (2004) (forfeited errors still subject to plain-error requirement regarding outcome)