State v. EcholsState v. Echols
NOTICE
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SLIP OPINION NO. 2024-OHIO-5088
THE STATE OF OHIO, APPELLEE, v. ECHOLS, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Echols, Slip Opinion No. 2024-Ohio-5088.]
Criminal law—Other-acts evidence—Witness intimidation—Evidence of witness intimidation must be properly analyzed under
(No. 2023-1024—Submitted April 9, 2024—Decided October 25, 2024.)
APPEAL from the Court of Appeals for Hamilton County, No. C-220133, 2023-Ohio-2206.
DEWINE, J.
{¶ 1} Two men opened fire on a room full of people, killing one and wounding eight others. James Echols was identified as one of the shooters and arrested. While in jail awaiting trial, he allegedly threatened the State‘s principal witness—the man who had hired him to carry out the shooting, and he also wrote a letter in which he suggested, among other things, that harm be done to the witness‘s wife. The trial court admitted evidence of those acts at Echols‘s trial along with other evidence of Echols‘s participation in the underlying crime. Echols was convicted, and the First District Court of Appeals affirmed his conviction, finding that the witness-intimidation evidence had been properly admitted to show Echols‘s consciousness of guilt.
{¶ 2} In this appeal, Echols challenges the admission of this evidence. He argues that the trial court should have analyzed the evidence as “other acts” evidence under
{¶ 3} As a result of the shootings, Echols was charged with various counts of murder, attempted murder, and other crimes. He was tried together with Micheal Sanon, the other alleged shooter. The following account is based on the evidence presented at trial. We focus primarily on the evidence that is relevant to Echols‘s appeal to this court.
A. The 2017 Shooting
{¶ 4} In the summer of 2017, Cheyanne Willis was hosting a party at her home when two men burst into her crowded living room and opened fire. The shooters fired 13 times before they fled. Eight people were injured, including a two-year-old and a three-year-old. And one person was killed. Police commenced a months-long investigation, but the story only started to emerge when officers began speaking to Roshawn Bishop. Although his story changed over the course of his six interviews with investigators, Bishop eventually identified James Echols as one of the two shooters. Investigators corroborated key portions of Bishop‘s account of the shooting with cellphone GPS data, text messages, and information from social-media accounts.
{¶ 5} According to testimony adduced at trial, the chain of events leading to the attack at Willis‘s home began a month earlier when Bishop borrowed $10,000 from Willis with the understanding that he would repay her the money within 30 days. Bishop was a drug dealer, and he used the money to fund his drug operation. Willis needed the money back because it belonged to her boyfriend‘s grandmother. And when Bishop didn‘t pay Willis back, she persistently reached out to him.
{¶ 6} Rather than repay Willis, Bishop and his partner in the drug operation, Robert Howard, crafted a plan to scare her out of further attempts to collect the money. Bishop contacted his cousin in Columbus, Vandell Slade, to help execute the plan. Slade brought Echols with him from Columbus, and Sanon later joined them. On the night of the shooting, Slade drove Sanon and Echols to Willis‘s
{¶ 7} Bishop was eventually arrested for drug trafficking. While released on bond, he approached the police about cooperating in ongoing investigations, and ultimately, he told them that he had information about the shooting at Willis‘s home. Bishop testified that he was “nervous and scared” to speak to the police. By his account, he had been threatened and assaulted while in jail because of his cooperation with law enforcement. Nonetheless, Bishop at some point identified Echols and Sanon as the shooters.
B. The Evidence of Witness Intimidation
{¶ 8} In addition to evidence about Echols‘s participation in the shootings, the State introduced at trial evidence of three instances in which he had attempted to intimidate witnesses to the crime. First, while Echols and Bishop were incarcerated in the same facility, Bishop saw a message on the wall of the jailhouse holding cell that read, “Roshawn Bishop is a rat,” and indicated that there was a $30,000 bounty on Bishop‘s head. The graffiti was signed with Echols‘s nickname, “Wopp.” Second, on the same day Bishop saw the graffiti, Echols encountered Bishop in the jail and made “a gun gesture” toward him with his fingers. Bishop understood both the graffiti and the gesture as threats made on account of his status as a cooperating witness in this case.
{¶ 9} Third, the State introduced a three-page letter written by Echols while in jail. In April 2019, Echols mailed the letter to one “S. Parks” in Columbus. When the letter came back marked “return to sender,” a clerk in the jail mailroom followed protocol and opened it. In the letter, Echols asked the intended recipient to “get like 4 or 5 people” to say that they saw him at “the Rise” at the time of the shooting and that he was wearing “all white.” Echols included suggestions of people to enlist to create a false alibi for him and gave detailed instructions as to what each should say Echols had been doing and wearing at the time. Elsewhere
{¶ 10} Echols filed a motion in limine requesting an order prohibiting the State from admitting the photograph of the threatening graffiti in the jailhouse holding cell. He challenged the relevance of the photograph, citing {¶ 11} The trial court denied the motion, finding the evidence relevant. The court added that it would admit the evidence if Bishop testified, but it would exclude the evidence if he did not testify. At trial, Echols objected to the admission of the photograph based on the lack of proper foundation, arguing that Bishop could not “possibly know when that was created and who created it.” The trial court overruled the objection and admitted the photograph. {¶ 12} Echols also filed a motion in limine requesting an order prohibiting the State from admitting the last page of his letter, which contained victim-witnesses’ names, birthdates, and Social Security numbers. Echols argued that none of the permissible uses of other-acts evidence enumerated in {¶ 13} At trial, the State also elicited testimony from Bishop about the gun gesture that Echols had made toward him. Echols did not object before or at trial to this testimony. The trial court did not provide a limiting instruction to the jury as to the permissible uses of the witness-intimidation evidence. {¶ 14} The jury found Echols guilty of aggravated burglary, aggravated murder, two counts of murder, eight counts of attempted murder, and nine counts of felonious assault, all with firearm specifications. Echols was sentenced to an aggregate term of life in prison with parole eligibility after 25 years. {¶ 15} Echols appealed to the First District Court of Appeals. One of his arguments on appeal challenged the admission of the letter, the graffiti, and Bishop‘s testimony about the gun gesture. He argued that the letter and “Bishop‘s testimony concerning the ‘gun’ gesture and graffiti certainly constituted evidence of ‘other acts.‘” Echols contended that “to the extent that any of the limited, enumerated purposes set forth in {¶ 16} The court of appeals rejected Echols‘s arguments, noting that evidence of other crimes, wrongs, or acts can be admissible to show consciousness {¶ 17} This omission spawned a separate concurrence and a partial dissent. The two other judges on the panel argued that {¶ 18} In his concurring opinion, Judge Bergeron agreed with the lead opinion‘s analysis affirming the admission of the witness-intimidation evidence in light of this court‘s precedent. 2023-Ohio-2206, ¶ 54 (1st Dist.) (Bergeron, J., concurring). However, he questioned whether the “admissibility result” would “differ under an {¶ 20} Echols appealed to this court. We accepted jurisdiction over his sole proposition of law: “Evidence of witness intimidation that tends to establish consciousness of guilt also constitutes a prior bad act of a defendant; thus it must be admissible under {¶ 21} {¶ 22} In Hartman, we explained that to properly apply {¶ 23} Echols argues that ” {¶ 24} The State‘s argument that witness-intimidation evidence falls outside the scope of {¶ 25} Here, there can be no question that Echols‘s efforts at witness intimidation can fairly be described as a “crime, wrong, or act.” See Leonard, § 4.6, at 292 (explaining that as a matter of statutory interpretation, the phrase is most naturally read as encompassing acts that are “wrongful in some way” or, to put it differently, “reflect[] negatively on the character of the actor“). And in the context of this case, the evidence meets the “other” requirement. The evidence did not directly show that Echols had committed the shooting. Rather, the State offered the evidence on the theory that Echols had sought to silence witnesses because he was conscious of his own guilt. {¶ 26} It is true that we have not always been clear that evidence of witness intimidation and other consciousness-of-guilt evidence should be analyzed as other-acts evidence under {¶ 27} Our determination that witness-intimidation evidence fits within the scope of {¶ 28} We note at the outset of our review that Echols failed to object to the admission of much of the evidence at issue here. He did not object to the admission of testimony about the gun gesture, and he did not object to the admission of the first two pages of the letter. So we may reverse based on the admission of these items only if we find plain error. See {¶ 29} In Hartman, we made clear that to be admissible, other-acts evidence (1) had to be relevant for an appropriate purpose other than showing the defendant‘s {¶ 30} {¶ 31} Though {¶ 32} Our caselaw establishes that showing consciousness of guilt is a permissible nonpropensity purpose for which evidence of witness intimidation may be admitted. We have held that “[e]vidence of conduct designed to impede or prevent a witness from testifying is admissible as showing consciousness of guilt.” State v. Williams, 1997-Ohio-407, ¶ 50. In another case, a video of the victim‘s interview with police was suggestively edited and posted on social media to make {¶ 33} Here, the concurring opinion in the court of appeals argued that an attempt to intimidate witnesses does not necessarily reflect a defendant‘s consciousness of guilt and might simply reflect distrust of the legal system. 2023-Ohio-2206 at ¶ 48-50 (1st Dist.) (Bergeron, J., concurring). But such arguments are better directed to the weight that should be given to such evidence rather than its relevance. Counsel is free to argue to the jury what the concurrence argues below: that an innocent defendant might engage in witness intimidation “because he believes he will be convicted, regardless of his guilt” and does “not trust the legal system to accurately sort out innocence from guilt, believing the deck to be unfairly stacked against” him. (Emphasis in original.) Id. at ¶ 48. Counsel is also free to argue as part of the balancing required under {¶ 34} Each of the three pieces of evidence at issue here was relevant for a nonpropensity purpose. Bishop‘s testimony about the gun gesture is in line with {¶ 35} Echoing Judge Kinsley‘s partial dissent below, Echols argues that the letter is not relevant to show his consciousness of guilt under {¶ 36} Echols argues that the graffiti evidence was not relevant because of the possibility that someone else could have written the graffiti and signed Echols‘s nickname to it. But the likelihood that Echols was the author is strengthened by Bishop‘s testimony that Echols threatened him with the gun gesture on the same day Bishop saw the graffiti. And while it is possible that someone else could have written the graffiti, a jury could reasonably conclude that the graffiti signed with Echols‘s nickname and directed at Bishop was likely written by Echols. See {¶ 37} Echols also argues that contrary to the court of appeals’ lead opinion, the graffiti could not have been “relevant to explain why [Bishop] was initially reluctant to tell the truth and why his story changed over time,” 2023-Ohio-2206 at ¶ 31 (lead opinion), because the graffiti postdated Bishop‘s interviews with police. But regardless of when the graffiti was written relative to Bishop‘s discussions with the police, the evidence was relevant for the separate purpose of establishing Echols‘s consciousness of guilt through his efforts to intimidate a witness. {¶ 38} Our conclusion that the evidence is relevant for a nonpropensity purpose does not end our inquiry. {¶ 39} Our review here is for an abuse of discretion. Hartman, 2020-Ohio-4440, at ¶ 30. This is because “[w]eighing the probative value of the evidence against its prejudicial effect is a highly fact-specific and context-driven analysis” and “[b]alancing the risks and benefits of the evidence necessarily involves an exercise of judgment.” Id. “We have defined an abuse of discretion as conduct that is unreasonable, arbitrary or unconscionable.” State v. Beasley, 2018-Ohio-16, ¶ 12. {¶ 41} The evidence of Echols‘s efforts at witness intimidation was highly prejudicial. But as we‘ve stated before, “it is fair to say that all relevant evidence is prejudicial.” State v. Crotts, 2004-Ohio-6550, ¶ 23. Accordingly, the Rules of Evidence do not bar all prejudicial evidence, but only that which is ”unfairly prejudicial.” (Emphasis in original.) Id. The phrase “unfairly prejudicial” “speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997). Thus, in the context of {¶ 42} The {¶ 43} On the prejudice side of the scale, “probably the most important [factor] is the similarity of the uncharged misconduct to the conduct at issue in the case.” Leonard, § 4.5.1, at 273. “The greater the similarity between the charged {¶ 44} Here, the evidence of Echols‘s efforts at witness intimidation had significant materiality to the State‘s case. The State recognized the importance of the evidence and emphasized the graffiti, gun gesture, and letter in its closing argument, stating that far from the “act of a desperate kid,” these pieces of evidence reflected Echols‘s consciousness of his own guilt. The evidence went to a fact that was in dispute, and there was no less prejudicial way to show witness intimidation than admitting the evidence itself. Further, any danger of unfair prejudice was lessened because of the lack of similarity between the acts with which Echols was charged and his efforts at witness intimidation. {¶ 45} The evidence may have been prejudicial, but not unfairly so. We conclude that the trial court did not abuse its discretion in admitting this evidence. {¶ 46} In Hartman, we explained that “[w]hen a court determines that other-acts evidence should be admitted, it must take steps to minimize the danger of unfair prejudice inherent in the use of such evidence and to ensure that the evidence is considered only for a proper purpose.” 2020-Ohio-4440 at ¶ 34. We advised that, upon request, a trial court must issue a limiting instruction at the time that the evidence is introduced that is specifically “tailored to the facts of the case” and that explains the limited “purposes for which the other acts may and may not be considered.” Id. at ¶ 67, 70. We also explained that in its final instructions to the jury, the court should provide an instruction that explains in plain language the {¶ 47} We reiterate today the importance of a carefully tailored limiting instruction on the proper use of other-acts evidence. But the problem for Echols is that he did not ask for a limiting instruction at the time the evidence was introduced, and he did not object to the trial court‘s final jury instructions. Although a court must give a limiting instruction upon request, this “does not mean the court should sua sponte issue such an instruction any time other-acts evidence is used.” Id. at ¶ 67. Indeed, “[d]epending on the nature of the other-acts evidence and the context in which it is used, defense counsel may as a matter of strategy wish to avoid highlighting the evidence for the jury.” Id. When counsel fails to request a limiting instruction or object to the court‘s jury instructions, our review is for plain error. Id. at ¶ 72. {¶ 48} Here, Echols failed to request a limiting instruction for the testimony regarding the graffiti or gun gesture. As to the letter, Echols did not request a limiting instruction in his written motion in limine. During the pretrial hearing on the motion, however, his counsel orally requested that if the court found the final page admissible, it “craft a very specific jury instruction as to why the jury is considering” that portion of his letter. The court did not address this request for a limiting instruction at the hearing, and Echols did not follow up on this request after the court ruled that the evidence would be admitted. Echols did not renew his request for a limiting instruction at trial, and when Echols later made a motion for specific jury instructions, he did not request an instruction related to the letter. Nor did Echols object to the final jury instructions given by the court. {¶ 50} Because Echols failed to request a limiting instruction during trial or before the case was submitted to the jury and did not object to the final jury instructions, he can prevail only by showing plain error. Echols must demonstrate that an error occurred, that the error was obvious, and that there is a reasonable probability that the error resulted in prejudice, meaning that the error affected the outcome of the trial. State v. Knuff, 2024-Ohio-902, ¶ 117. Plain error should be noticed only “with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Clayton, 62 Ohio St.2d 45, 47 (1980), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. “The burden of demonstrating plain error is on the party asserting it.” State v. Payne, 2007-Ohio-4642, ¶ 17. {¶ 51} Here, Echols has failed to establish plain error. First, we are not convinced that the trial court erred in failing to provide an instruction that Echols did not ask for at trial. As we explained in Hartman, the failure to request an instruction at trial may well be a tactical choice to avoid further highlighting the evidence to the jury. See Hartman, 2020-Ohio-4440, at ¶ 67. {¶ 52} Moreover, even if we were convinced that a limiting instruction should have been given, Echols has failed to demonstrate prejudice. There was ample testimony that Echols was one of the shooters. And this evidence was {¶ 53} The trial court did not err in admitting the evidence of other crimes, wrongs, or acts at issue in this case. Nor did the trial court commit plain error in failing to provide an instruction to the jury on the limited purposes for which such evidence could be considered. We affirm the judgment of the First District Court of Appeals. Judgment affirmed. Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R. Cummings and Judith Anton Lapp, Assistant Prosecuting Attorneys. Elizabeth Miller, Ohio Public Defender, and Craig M. Jaquith, Assistant Public Defender, for appellant.C. Echols‘s Conviction and Appeal
II. Analysis
A. Witness-Intimidation Evidence May Constitute Evidence of Another Crime, Wrong, or Act under
B. The Trial Court Did Not Err in Admitting the Witness-Intimidation Evidence at Echols‘s Trial
1. The Evidence Was Relevant for a Nonpropensity Purpose
2. The Trial Court Did Not Abuse Its Discretion in not Excluding the Evidence under
C. The Trial Court Did Not Commit Plain Error in Failing to Issue a Limiting Instruction
III. Conclusion