STATE OF OHIO v. KEITH L. BLACK
CASE NO. 16 MA 0085
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
March 29, 2018
2018-Ohio-1342
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2015 CR 852. JUDGMENT: Affirmed in Part. Limited Remand.
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor; Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. David L. Engler, 181 Elm Road, N.E., Warren, Ohio 44483
JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Carol Ann Robb
WAITE, J.
{¶1} Appellant, Keith L. Black, challenges his convictions in the Mahoning County Common Pleas Court for felonious assault and having a weapon while under disability. Appellant cites two issues on appeal. First, whether the trial court abused its discretion in overruling Appellant‘s objection to the admission of a photograph from Appellant‘s Facebook account into evidence. Second, whether Appellant‘s convictions for felonious assault and having a weapon while under disability were against the manifest weight of the evidence. For the reasons expressed below, we conclude that the trial court did not abuse its discretion in permitting the Facebook photograph to be admitted into evidence, as Appellant‘s own testimony satisfied the requirement of authentication for the Facebook post pursuant
Factual and Procedural History
{¶2} In the early morning of August 14, 2015, Nicholas Duecaster (“Duecaster“) drove to the Shell gas station on the corner of Midlothian Boulevard and South Avenue in Youngstown. While there, Duecaster saw Appellant. He knew Appellant because they had previously been incarcerated together.
{¶4} According to Duecaster, he drove Appellant to Hubbert‘s home, where Appellant exchanged crack cocaine received from Duecaster for pain medication from Hubbert. Duecaster remained outside in the car and testified that he became increasingly concerned when Appellant did not return for several minutes. Duecaster was uneasy because he had heard rumors that he was perceived as a “snitch.” (2/22/16 Tr., p. 339.) Duecaster sent a text message “Black, north side” to his friend Andre Laury (“Laury“) to indicate who he was with and where Appellant was from. (2/22/16 Tr., p. 355.) Laury was a clerk at the gas station and testified at trial that he saw Duecaster and Appellant together that day and also witnessed them depart in Duecaster‘s car. Duecaster was considering leaving Hubbert‘s residence when Appellant emerged from the house. Appellant asked Duecaster to take him to a house on Ravenwood Avenue. Duecaster complied and, on arriving at the Ravenwood address, Appellant exited the vehicle and asked Duecaster if he had change for $50. Duecaster reached for money in the center console of the car when Appellant produced a gun and demanded that Duecaster give him all his money. Duecaster attempted to drive away but Appellant shot him in his chest or upper
{¶5} According to Appellant, prior to leaving Hubbert‘s house on Lucius, Duecaster pulled a gun on Appellant and attempted to rob him. Appellant testified at trial that, in order to protect himself, he lunged at Duecaster and the two struggled over the gun as the car began to move, the gun fired, and Appellant jumped out of the car.
{¶6} Following jury trial on February 22, 2016, Appellant was found guilty of felonious assault in violation of
{¶7} Appellant was sentenced to a term of eight years of incarceration on the felonious assault count; three years of incarceration for the accompanying firearm specification; and 36 months for having a weapon while under disability. The trial court ordered each count to run consecutively to one another, for a 14-year total prison term. Appellant filed this timely appeal.
ASSIGNMENT OF ERROR NO. 1
THE COURT ERRED WHEN IT OVERRULED APPELLANT‘S OBJECTION TO THE INTRODUCTION OF AN UNAUTHENTICATED FACEBOOK PHOTO.
{¶9} The trial court admitted Appellant‘s Facebook photograph into evidence over his objection that it was not properly authenticated. Appellant‘s counsel argued that the state received the photograph from the victim‘s sister before trial. The trial court, in overruling the objection, stated:
The Court finds the Defendant opened the door through his testimony about his physical condition. The State had no idea ahead of time as to what the Defendant would say on the stand. Furthermore, the picture goes to the credibility of the witness. Therefore, the Court will allow the State to use the picture.
(2/22/16 Tr., p. 570.)
{¶10} The decision whether to exclude or admit evidence is within the sound discretion of the trial court. State v. McGuire, 80 Ohio St.3d 390, 400-401, 686 N.E.3d 1112 (1997). A reviewing court will not reverse the trial court‘s decision absent an abuse of discretion.
{¶11}
{¶12} In the case sub judice, Appellant authenticated the Facebook photograph by his own testimony on cross-examination. Appellant testified on cross-examination about the extent of his injuries after the incident. Again, he claimed that Duecaster had brandished the gun and that the two began wrestling over it when it fired and Appellant jumped from a moving vehicle. He testified that his hands were severely injured with skin removed and that he had injured his leg and had a “serious limp.” (2/22/16 Tr., p. 553.) He testified on cross, “I really -- I was handicapped. I was handicapped.” (2/22/16 Tr., p. 553.) He also indicated that, although he was not bedridden, he left the house only on rare occasions.
{¶13} When presented with the photograph on cross-examination, which was admitted into evidence by the state, Appellant testified that it was a picture of him and his friend, and that he was familiar with the photograph. He testified that it was taken
{¶14} In his brief, Appellant complains that the state received the photograph from Duecaster‘s sister but that she was not called as a witness to authenticate the photograph.
{¶15} Regarding Appellant‘s argument that this evidence unfairly prejudiced the jury, Appellant contends that the photograph along with the state‘s closing statement were prejudicial. The state noted during closing that Appellant “was hurt badly. You saw the pictures; you‘ll see them more. * * * He‘s hurt. He has to go home. He has to convalesce. He has to go to the rap concert.” (2/22/16 Tr., p. 587.)
{¶17} Considering all of the evidence cited by the state at trial, including, but not limited to: Appellant‘s DNA found on the magazine clip in Duecaster‘s car; no sign of a disturbance outside of Hubbert‘s house on Lucius but evidence of damage to the street signs as well as roadside evidence at the Ravenwood location that is consistent with Duecaster‘s version of the event; and Appellant‘s decision to flee from the scene and evade police for six days after the incident; we conclude that the Facebook photograph was properly authenticated by Appellant during his cross-examination and was not unreasonably prejudicial and the trial court did not abuse its discretion in admitting this evidence.
{¶18} Appellant‘s first assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
THE GUILTY CONVICTION ENTERED BY THE COURT IS AGAINST THE WEIGHT OF THE EVIDENCE.
{¶19} In his second assignment of error, Appellant contends his conviction was against the manifest weight of the evidence.
{¶21} When reviewing a manifest weight of the evidence argument, a reviewing court must examine the entire record, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. at 387, 389. Only in exceptional circumstances will a conviction be reversed as against the manifest weight of the evidence. Id. This strict test for manifest weight acknowledges that credibility is generally the province of the factfinder who sits in the best position to accurately assess the credibility of the witnesses. State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
{¶22} In the instant case, the jury was presented with evidence from which there was a rational basis to conclude that Appellant knowingly shot Duecaster during the incident in question rather than accidentally or in self-defense as Appellant claimed during his direct examination.
{¶23} Both Duecaster and Appellant testified regarding how the incident transpired. Both acknowledged that they knew each other from a previous
{¶24} In determining whether a judgment is against the manifest weight of the evidence, an appellate court must “be guided by a presumption that the findings of the trier-of-fact were indeed correct.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). The finder of fact 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.” Id.
{¶25} Given the evidence in the record, this verdict was not against the manifest weight of the evidence. Appellant‘s second assignment of error is also without merit and is overruled.
{¶27} As the trial court imposed consecutive sentences, it was required to make the findings enumerated in
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct. (c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶28} At the sentencing hearing the trial court ordered Appellant‘s sentence to run consecutively and made the following findings:
Court also finds that consecutive sentences are not disproportionate to the seriousness of the offense and that the effect of this crime affected the families of the victim and the defendant.
Court finds that the defendant was on probation at the time that this offense occurred.
Court finds that defendant‘s criminal history demonstrates that consecutive sentences are necessary to protect the public of future crimes by this defendant.
(6/1/16 Sentencing Hrg. Tr., pp. 9-10.)
{¶29} Consequently, the trial court found
{¶30} However, as has been noted by this Court in the past, this trial court has once again failed to appropriately incorporate those findings in the written judgment entry of sentence. In the sentencing entry the trial court stated:
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require offender to serve prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offenders [sic] conduct and to the danger the offender poses to the public, and if the court finds the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 or2929.18 of the Revised Code, or was under post-release control for a prior offense.(Emphasis deleted.)
(6/16/16 J.E., p. 2.)
{¶31} As we have noted previously, “magic” or “talismanic” words in the judgment entry of sentence are not required. The entry must contain, however, at least an indication that the trial court made the necessary findings. State v. Bellard, 7th Dist.No. 12-MA-97, 2013-Ohio-2956, ¶ 17. The court need not give reasons for
{¶32} A trial court‘s failure to incorporate the statutory findings into the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law; such a clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court at the sentencing hearing. Id. at ¶ 18.
{¶33} The record reveals that the findings of the trial court, pronounced orally during the hearing, demonstrate the court engaged in the required statutory analysis prior to imposing consecutive sentences. The trial court‘s failure to incorporate those findings into the written judgment entry amounts to a clerical error necessitating a nunc pro tunc entry to correctly align the language of the entry with the findings made at the sentencing hearing and in accordance with Bonnell and its progeny.
{¶34} Based on the foregoing, the trial court did not err in admitting the Facebook photograph into evidence as it was properly authenticated by Appellant‘s own testimony. Moreover, Appellant‘s conviction is not against the manifest weight of the evidence. However, the matter is remanded solely so that the trial court can
Donofrio, J., concurs.
Robb, P.J., concurs.