State v. HuntState v. Hunt
Matthew F. Loesch, Portsmouth, Ohio, for appellant.
Shane Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Hoover, P.J.
{1} Defendant-appellant, Douglas L. Hunt (“appellant“), appeals his convictions entered in the Scioto County Court of Common Pleas. Following a jury trial, appellant was found guilty of one count of aggravated murder, one count of murder, three counts of endangering children, one count of tampering with evidence, and one count of gross abuse of a corpse.
{2} On appeal, appellant first contends that insufficient evidence supports the jury‘s verdicts, or alternatively, that the verdicts are against the manifest weight of the evidence. Because we find that any rational trier of fact could have found the essential elements of the crimes proven beyond a reasonable doubt, and because substantial evidence supports the verdicts, we disagree. Appellant next contends that the trial court erred when it denied his motion for continuance of the jury trial. Because we find that the trial court acted within its discretion when it denied the motion, we disagree. Appellant next argues that the trial court abused its discretion when it limited his cross-examination of his co-defendant. We disagree. The co-
{3} Accordingly, we overrule all of appellant‘s assignments of error and affirm the judgment of the trial court.
I. Facts and Procedural History
{5} On August 28, 2017, appellant moved for a continuance of the jury trial that had been scheduled for September 5, 2017. Appellant‘s motion for continuance was based primarily on the fact that his co-defendant, White, had agreed to enter a guilty plea and to testify against him. The trial court denied the motion for continuance the following day; and White was officially disclosed by the State as a witness against appellant on August 31, 2017.
{6} Appellant‘s case proceeded to jury trial on September 5, 2017. The State presented numerous witnesses, including co-defendant White. Appellant did not present any testimony in his case-in-chief. The following facts are adduced from appellant‘s trial.
{7} Michael Caudill testified that he was TJ‘s biological father. He stated that he and TJ‘s mother, White, dated on and off for several years; but that the relationship ultimately ended in them agreeing to mutually separate. He testified that following their separation, for about the next year and a half, “everything went great“; and the two shared custody of TJ without issue. He also testified that during this time period TJ was a “happy, healthy baby boy” except for the occasional fit that resulted from TJ‘s autism. He testified that the relationship between himself and White began to deteriorate when White moved in with appellant around summer of 2015. After White began living with appellant, it became progressively more difficult for Caudill to contact White and to see his son. Caudill testified that the last time he saw TJ was on August 8,
{8} Lorainia Caudill, TJ‘s paternal grandmother, also testified at trial. She testified that she regularly visited TJ until the time when White began dating appellant. When White first began dating appellant Lorainia testified that she went from “having [TJ] four evenings and 25-30 hours on the weekend to having him like two weekends a month.” At that time, Lorainia testified that TJ was “a healthy child, had no issues, other than being autistic.” After TJ‘s fifth birthday party on August 8, 2015, Lorainia testified that White quit responding to any of her or her son‘s attempts to visit TJ. Lorainia Caudill also testified that around August 2015, White was living with appellant and TJ and the bunch were constantly moving to new locations. She testified that eventually she and her son were unable to locate White or to speak to her through any means. Lorainia testified that by Spring 2016 she learned that no extended family members had seen TJ for quite sometime, so she and her boyfriend began canvassing neighborhoods in Portsmouth six to seven nights per week in an attempt to locate TJ. Lorainia testified that she hoped to find an address where White, appellant, and TJ were staying so that she and her son could file for custody. While canvassing neighborhoods, Lorainia followed White and appellant on several occasions, but never could find TJ or an address where he might be staying. Lorainia testified that she took notes of the times and locations where she viewed White and appellant, and handed those notes over to the police and to children services.
{10} Dr. Scott Logan, Director of Medical Imaging at SOMC, testified regarding the X-rays taken during the September 11, 2015 visit to the ER. Dr. Logan testified that the fracture that occurred on the left leg was a spiral fracture, which can be consistent with accidental or non-accidental trauma.
{11} Lieutenant Michael Hamilton of the Portsmouth Police Department was the next witness to testify at trial. Lieutenant Hamilton testified that he was the lead investigator on the missing person/homicide case. Initially, Lieutenant Hamilton‘s investigation concerned locating appellant, White, and TJ. Lieutenant Hamilton referred to White and appellant as being “on the lam[]” and “very hard to locate“. Lieutenant Hamilton testified that with the help of the Scioto County Sheriff‘s Office, and law enforcement officers in Kentucky, White was eventually located and arrested1 in the parking lot of the Gatti‘s restaurant in Portsmouth. At the time of her arrest, White agreed to take Detective Jodi Conkel of the Scioto County Sheriff‘s Office to where TJ could be located. Lieutenant Hamilton testified that Detective Conkel and White went off on their own, and shortly thereafter Detective Conkel called him and told him to immediately come to the 1500 block of Mabert Road in Portsmouth. Officers then arrived at a vacant house at 1522 Mabert Road, where White had directed Detective Conkel to TJ‘s dead body. The body was
{12} Lieutenant Hamilton testified that upon discovering the body he immediately secured the scene, called in additional law enforcement including the Bureau of Criminal Investigations, and started the process of obtaining a search warrant for the residence. White was then transferred to the Sheriff‘s Office for questioning. It was soon learned that a blue and white cooler had been used to transport the deceased child from the Royal Inn motel to the 1500 block of Mabert Road. Lieutenant Hamilton testified that he found the blue and white cooler in the yard of the residence at 1524 Mabert Road.
{13} Also during Lieutenant Hamilton‘s testimony, appellant‘s interview with law enforcement was played for the jury. During the interview, appellant stated that he had been in a three-year relationship with White; but that the past “five or six months have been on and off.” Appellant told the detectives that he has two other kids with White, and that they had lived in Portsmouth; Huntington, West Virginia; South Shore, Kentucky; and then returned back to Portsmouth in June 2016. He stated that upon their return to Portsmouth they had been homeless for a period, had lived in a truck, squatted in abandoned houses, and also had lived at the Royal Inn sometime in July or August 2016. He denied that TJ was malnourished, that he ever withheld food or water from TJ, and denied having any part in TJ‘s death. He stated that White had given up custody of TJ to a friend or aunt; and he never saw him again. Appellant claimed in his interview with law enforcement that he played a large role in TJ‘s development, including improvements in the area of bathroom training and general behavior. Appellant claimed during the interview that he only used appropriate disciplinary methods with TJ.
{15} Carol Withrow, an employee at City National Bank in Cross Lanes, West Virginia, was the next witness to testify for the State. Withrow testified that White was TJ‘s representative payee for his SSI disability claim in the amount of $733.00 per month.
{16} Dr. Elizabeth Kryszak, a clinical psychologist at Nationwide Children‘s Hospital in Columbus, Ohio, testified about TJ‘s autism diagnosis. Dr. Kryszak testified that she first evaluated TJ in March 2013 and diagnosed him with autism. The last time that she saw TJ was in March 2014 at a follow-up appointment. She stated that no serious health concerns were reported to her during her evaluations in 2013 and 2014. Dr. Kryszak, in her prior evaluations of TJ, noted that screaming was his primary consistent behavior for various different reasons, along with flapping of his hands, grinding his teeth, and walking on his toes. Dr. Kryszak testified that TJ appeared to be physically healthy the last time she saw him in March 2014, and that White reported that he was eating well at that time. Dr. Kryszak testified about a number of recommendations she made to White to help TJ‘s developmental and behavioral issues, but noted that White never returned TJ for another follow-up appointment.
{17} Charles Lennex, Jr., the next witness called by the State, admitted to being a prior felon and drug addict. Lennex testified that he was familiar with appellant and had been for a
{18} Geoff Pattmore, a caseworker at the Scioto County Children Services Board, also testified at trial. Pattmore verified that several reports had been made to children services agencies in both Scioto County and in Kentucky regarding the safety of the children in appellant‘s and White‘s care. Pattmore testified that as part of his investigation into these claims
{19} Tim Wilson, retired Chief of Police of the Russell (Kentucky) Police Department also testified at trial. Wilson testified that White‘s aunt contacted him in July 2016 because she was concerned about TJ‘s safety. Wilson testified that the aunt thought White might be residing in Scioto County; so Wilson contacted the Scioto County Sheriff‘s Office. Wilson began working together with Jodi Conkel of the Sheriff‘s Office and was present for White‘s arrest in November 2016.
{20} Detective Jodi Conkel of the Scioto County Sheriff‘s Office also testified at trial. Detective Conkel verified that she became involved in the investigation in an official capacity on November 13, 2016. She testified that she was present for White‘s arrest at Gatti‘s Pizza on that date. Detective Conkel testified that White was advised of her Miranda rights but agreed to talk to her. Detective Conkel testified that White first told her that TJ was staying in Kentucky with a friend, but when Detective Conkel insisted White was not telling the truth, White agreed to take Detective Conkel to TJ. Detective Conkel testified that White then led her and Detective Malone to Mabert Road and told them that TJ‘s body was up against an abandoned house with a round
{21} Detective Conkel also testified that she was involved in appellant‘s arrest. She verified that Charles Lennex had worked in conjunction with law enforcement to help apprehend appellant.
{22} Detective Steve Timberlake of the Portsmouth Police Department testified consistently with the events surrounding the discovery of TJ‘s body on November 13, 2016. Detective Timberlake also testified about a second interview he conducted with appellant on November 20, 2016. During the second interview, a recording of which was played for the jury, appellant stated that the last time he saw TJ was when they were staying at the Royal Inn. Appellant also stated in the interview that White told him two accounts of where TJ was staying; the first being with a friend, and the second being with an aunt. Appellant also claimed during the interview that he overheard White tell someone on the phone that TJ had a seizure. Appellant denied being present when TJ died, and further claimed that he did not see his body at any time.
{23} Immediately following Detective Timberlake, Detective Steve Brewer of the Portsmouth Police Department was called as a witness by the State. Detective Brewer testified that his involvement in the case was primarily as the evidence technician, and that he processed
{24} Hallie Dreyer, a Forensic Scientist with the Ohio Bureau of Criminal Investigation, testified that she performed the DNA testing on the remains found at the Mabert Road residence. Dryer testified that the DNA testing verified that the remains were of a biological child of Margarita White and Michael Caudill. Dryer further testified that DNA taken from the cooler found at the neighboring Mabert Road residence was analyzed, but was insufficient for comparison to any of the parties of the case.
{25} Diana Cook, appellant‘s mother, also testified as a witness for the State. Cook testified that she first met White and TJ in the fall of 2014 or early 2015. Cook recalled visiting appellant, White, TJ, and her other grandchild (appellant and White‘s first biological son) in early 2015 at their home on Lincoln Road in Portsmouth. However, according to Cook, by the summer of 2016 appellant, White, and the three children2 were homeless and living out of a truck. Cook testified that they came and visited her while they were living out of the truck in June 2016 and that TJ “had a sore on his mouth and he looked like he was in a daze. And he love popsicles. He wouldn‘t take the popsicle.” Cook testified that after the visit she lost contact with her son, and then eventually tracked him down at the Royal Inn. Cook testified that when she visited the Royal Inn an “awful odor” was coming from appellant and White‘s room, and that when she asked to see the kids only White, appellant, and her two grandsons came outside. Cook asked where TJ was and White told her that he was “in Ashland with a friend.” Later in the fall of 2016, Cook testified that White contacted her and asked if she would take care of the two grandchildren because they did not have a place to stay. Cook eventually agreed to take custody of the two children and she testified that they were in “horrible” condition – left with no clothes,
{26} Mitch Waring III, the next witness called by the State, admitted to being a prior felon and drug abuser. Waring testified that he started living at 1524 Mabert Road in the fall of 2016 and that appellant, White, and their two children were already living there. Waring‘s girlfriend, Marie Anderson, was the renter or owner of the home. Waring testified that all of the adult occupants of the home were using drugs, specifically Suboxone and Methamphetamine. Waring further testified that he rarely saw the appellant, that he was private, and mainly stayed in the bedroom. Waring testified that while appellant was living at the home, a man named James Queen rummaged through appellant‘s belongings, and Waring told Queen to stop just as he uncovered a cooler. When Waring saw the cooler he immediately thought something was amiss because the cooler was covered with a tarp and sealed, airtight. Waring testified that when Queen started to remove the tarp from the cooler an “ungodly” “smell of rotten flesh, decay” overwhelmed him. Waring was unsure if Queen ever opened the cooler. Waring later questioned the smell; and it was explained to Waring that the odor of decay was from a cat; and Waring testified that he did in fact later see a half-decomposed cat near the belongings. Waring further testified that he and his girlfriend confronted White, and later appellant, about the location of their “third child“; but that appellant and White did not respond at all. Waring testified that he then put his hands on the appellant in an attempt to get a response, but that appellant pulled out a
{27} James Queen testified directly after Waring. Queen testified that he was currently serving time in prison, and that he had previously been convicted of aggravated burglary and aggravated assault. Queen also admitted that he had abused methamphetamine, Xanex, heroin, and other drugs in the past. Queen testified that he was high on methamphetamine when he rummaged through appellant‘s belongings at the residence on Mabert Road and smelled the rotten odor coming from the cooler. He described the smell as if something was dead. He also confirmed the dead cat story, testifying as follows:
Yeah. For like two or three days in a row Marie [Anderson] had come to me, she said, “Jamie“, she said, “There‘s a dead cat outside the back door.” And I thought it was kind of weird because for like two or three days in a row she told me this. I‘d go out there with a stick or something and pick up a dead kitten that was rotten, and I‘d throw it over in the bushes back behind the other house. And then sure enough, the next night, there‘d be another one there. I mean, that happened like two or three other times.
Queen confirmed on cross-examination that he never opened the cooler.
{28} As previously mentioned appellant‘s co-defendant, and TJ‘s mother, Margarita White, testified during the State‘s case. White openly admitted that she reached a plea deal with the State; requiring that she testify truthfully about what happened to TJ in exchange for a
{30} White testified that she resorted to panhandling for the purpose of obtaining money for food and drugs. She claimed that during this time, around July or August of 2016, TJ was barely being fed, was not receiving liquids, and was forced to stay in the shower of the camper at all times. When TJ was given juice, White claimed that it ran straight through him and was causing extreme diarrhea. White testified that she did not take TJ to the hospital because appellant told her they would end up in trouble. Eventually, they all moved to the Royal Inn on August 10, 2016; and White testified that appellant continued to abuse TJ: picking up, squeezing, and yanking him by the arm. White testified that on the last day she saw TJ alive, August 23, she left him in appellant‘s care at the Royal Inn while she panhandled for money. She described TJ‘s appearance that day as similar to a “holocaust victim“, “like the pictures you would see in the books.” She testified that when she returned she found TJ laying in the corner deceased, and appellant told her he might have had a seizure. However, White testified that she thinks TJ died because he was malnourished. When asked why she did not seek help for TJ, White responded, “I don‘t know.” Neither appellant nor White tried to resuscitate TJ or call 911, because the child was blue and swollen when they discovered him laying in the corner. White claimed that she was
{31} White testified that upon discovering that TJ had died, appellant directed her to get ice from the hotel ice machine. According to White, appellant then locked her and the other two children out of the room while he placed TJ‘s body in a cooler and washed a comforter that had been used to cover TJ‘s body. White testified that when the appellant let her back into the room “he had a smile on his face like – like everything was okay.” White testified that they let the cooler with TJ‘s body sit in the bathroom of the hotel room from August 23, 2016, until September 22, 2016, when they moved out of the hotel. White stated that they went from the hotel to Marie Anderson‘s house on Mabert Road because the police and child protection services had showed up at the Royal Inn the last day they were there. White testified that appellant then placed the cooler and everything else they owned out back behind Marie Anderson‘s house. She stated that he placed two garbage bags over the cooler and sprayed perfume because the smell was so bad. White testified that she still called no one at that time because “she was scared of getting in trouble. I was scared of him. I was scared of him trying to run with one of the other kids.” She also testified that she believed that appellant was killing cats and placing them out back to mask the decomposition smell. White testified further that appellant eventually removed the body and cleaned out the cooler when the other occupants of the home began questioning the smell. After the police showed up to the Mabert Road residence looking for White, White testified that she and appellant gave their other two kids to appellant‘s mother, and she and appellant began sleeping in the woods and at the residence of one of appellant‘s ex-girlfriends. She claimed that appellant told her to tell people that TJ was in Ashland, Kentucky, with a friend if they asked; and if they found the body, to tell law
{32} White testified that she continued to correspond with appellant even after they were arrested. The two wrote letters while in jail; and White even testified that on one occasion she and the appellant had sex while they were at the Scioto County Jail.
{33} On cross-examination, White conceded that she had a chance to get away and save TJ when she took him to the hospital for his broken leg. White further testified on cross-examination that she could have removed herself and the children from appellant in June 2015, when appellant was arrested on an unrelated matter. White also testified on cross-examination that she refused any help from her parents, despite her parent‘s willingness and eagerness to remove appellant from her life. She also testified about other instances where she could have reported the abuse but did not. Finally, on cross-examination, White again testified that she had entered into a plea deal with the State, in which she pleaded guilty to the murder of her son, TJ. As part of the plea deal, White confirmed that she agreed to testify against appellant.
{34} The State‘s final witness was Dr. Lee Lehman, the Chief Deputy Coroner at the Montgomery County Coroner‘s Office. Dr. Lehman was designated as an expert and opined that the autopsy of TJ‘s remains revealed evidence of abuse and neglect. Specifically, Dr. Lehman noted eight fractures of the ribs and arms, which he opined was typical fractures associated with child abuse. Dr. Lehman further testified that there was evidence of malnourishment in the Harris lines across TJ‘s bones. He also testified that there was noticeable bone growth delay, which is evidence that TJ was not getting proper nutrition. Based on the “totality of the injuries, and all the information that indicates that there was abuse and neglect“, Dr. Lehman opined that abuse
{35} As previously stated, appellant rested without testifying or calling any witnesses on his behalf.
{36} On September 8, 2017, the jury found appellant guilty of all counts of the indictment. At sentencing, certain counts were merged; and appellant was ultimately sentenced to an aggregate prison term of life without the possibility of parole, plus 11 years.
{37} Appellant filed a timely notice of appeal.
II. Assignments of Error
{38} On appeal, appellant assigns the following errors for our review:
Assignment of Error I:
Defendant‘s Convictions for (A) Aggravated Murder, (B) Murder, (C) Child Endangering, (D) Tampering With Evidence, And (E) Gross Abuse Of A Corpse Were Against The Manifest Weight And Sufficiency Of The Evidence.
Assignment of Error II:
The Trial Court abused its discretion when it denied Defendant‘s Motion for a Continuance of the Jury Trial.
Assignment of Error III:
The Trial Court abused its discretion when it limited the cross examination of Appellant‘s Co-Defendant Margarita White.
Assignment of Error IV:
The Trial Court abused its discretion and committed plain error when it failed to give the appropriate jury instruction regarding co-defendant testimony.
Assignment of Error V:
Appellant‘s Counsel was ineffective for (a) failing to object to improper opinion testimony, (b) failing to request a proper jury instruction on co-defendant
testimony, (c) failing to object to prior bad acts evidence, and (d) failing to object to the prosecutor‘s improper comments during closing.
Assignment of Error VI:
There were improper comments made by the prosecutor in its closing argument.
Assignment of Error VII:
The Court abused its discretion in failing to order a jury view of the scene.
Assignment of Error VIII:
The Trial Court abused its discretion in admitting improper hearsay evidence from Mitch Waring.
Assignment of Error IX:
Cumulative errors committed during Appellant‘s trial deprived him of a fair trial and require reversal of his convictions.
III. Law and Analysis
{39} For ease of analysis, we will address appellant‘s assignments of error out of order.
A. The Trial Court Did Not Abuse Its Discretion in Denying the Motion for Continuance of Jury Trial
{40} In his second assignment of error, appellant contends that the trial court abused its discretion when it denied his motion for continuance of the jury trial. Appellant asserts that a continuance was necessary because his co-defendant, White, took a plea deal and agreed to testify against him a week before scheduled trial. He asserts that White was the State‘s key witness, and without a continuance, his trial counsel was unable to properly prepare his defense, thus depriving him of a fair trial.
{41} “The grant or denial of a continuance is a matter entrusted to the sound discretion of the trial court.” In re Fortney, 162 Ohio App.3d 170, 2005-Ohio-3618, 832 N.E.2d 1257, ¶ 59
{42} In considering a motion for continuance, “[a] trial court must weigh ‘any potential prejudice to a defendant’ against ‘concerns such as a court‘s right to control its own docket and the public‘s interest in the prompt and efficient dispatch of justice.’ ” Id. at ¶ 60, quoting Unger at 67. Specifically:
“In evaluating a motion for continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case.”
Id., quoting Unger at 67-68.
{43} As previously stated, appellant requested a continuance of his jury trial on August 28, 2017. Appellant‘s motion claimed that the recent plea deal struck by White along with her disclosure as a witness against him had significantly altered his trial strategy and as such he would need additional time to prepare for trial. Appellant‘s request was denied by entry of the
trial court the following day. The trial court, aside from stating that the motion was not well taken, gave no reasoning in its denial. White was then officially disclosed as a witness by the State in a supplemental discovery request on August 31, 2017; and appellant‘s trial commenced on September 5, 2017, as scheduled.
B. The Trial Court Did Not Abuse Its Discretion by Failing to Order a Jury View of the Scene
{45} In his seventh assignment of error, appellant contends that the trial court abused its discretion by failing to order a jury view of the scene at 1522 Mabert Road and 1524 Mabert Road. He contends that a jury view of the scene was essential to his “constitutional right to effectively confront the State‘s case and to ensure receipt of effective assistance of counsel“; and to assist the jury with its understanding of the facts presented at trial.
{47} The purpose of a jury view of the property is not evidentiary but rather to give the jury a chance to apply the evidence offered at trial. See generally 42 Ohio Jurisprudence 3d, Evidence and Witnesses, Section 8, at 216 (1983). “The grant or denial of a jury view is within the sound discretion of the trial court“; and “[t]he decision of the trial court will not be reversed absent an abuse of discretion.” State v. Taylor, 4th Dist. Adams No. 95CA601, 1996 WL 205593, *2 (Apr. 24, 1996). As discussed above, the term “abuse of discretion” implies that the trial court‘s ruling was unreasonable, arbitrary, or unconscionable. Id.
{48} “There are no particular requirements as to when the trial court should grant a jury view.” Id. However,
When it is proper for the jurors to have a view of the place at which a material fact occurred, the trial court may order them to be conducted in a body, under the charge of the sheriff or other officer, to such place, which shall be shown to them by a person designated by the court. * * *
“Thus, the facts of each case determine whether the court abused its discretion.” Taylor at *2.
{49} Here, there is nothing in the record to support appellant‘s assertion that the trial court acted unreasonably, unconscionably, or arbitrarily in denying the jury view. At trial, several photographs of 1522 Mabert Road, where TJ‘s body was located, were presented to the jury and admitted as evidence. Moreover, photographs of the remains of TJ‘s body as they were
C. The Trial Court Did Not Abuse Its Discretion in Limiting the Scope of Cross-Examination of the Co-Defendant White
{50} In his third assignment of error, appellant contends that the trial court abused its discretion when it limited the cross-examination of his co-defendant, Margarita White.
{51} During cross-examination of White, numerous questions were asked about White‘s involvement in TJ‘s death; and the plea deal that she struck with the State. White testified that she was originally charged with the same crimes that appellant was charged with; but that she only agreed to plea guilty to child endangering and murder. When asked if she killed her son, White testified that she did not, but she did admit to “turning [her] head to what [appellant] was doing.” Defense counsel continued to press White on the issue, and the following exchange occurred:
| Q. | And you‘ve admitted to pleading guilty to murder of your own child; correct? |
| A. | I turned a blind eye —child endangering. |
| Q. | Not what I asked you. |
| A. | Which caused in the murder of my son, but I did not |
| Q. | Did you -did you-- * * * |
| A. | I did not — |
| [Assistant Prosecutor]: Your Honor, I object. * * * | |
| THE COURT: Sustained. You may answer the question. | |
| [Defense Counsel]: She‘s not answering the question, Your Honor. That‘s not what I asked. I asked if she pleaded guilty to murdering her own child and — | |
| THE COURT: And that‘s been gone over about six times now. Okay. Let‘s move on. | |
{52} Appellant contends that the trial court‘s restriction on the cross-examination of White violated his constitutional right of confrontation. Specifically, he submits that his theme throughout trial was that White directly caused the death of her child and was the sole party responsible, and when the trial court limited his cross-examination, it compromised his theme and interfered with his attempt to destroy her credibility.
{53} The
{54} Here, immediately prior to the contested inquiry, White admitted that she pleaded guilty to murder: “I pled to murder, not the aggravated murder. * * * Yes, sir.” Furthermore, during her direct testimony she acknowledged that she faces 15 years to life in prison “for murder“. Thus, it is clear that White answered the question of whether she pleaded guilty to murder on both direct and cross-examination and appellant‘s confrontation rights were not violated. Requiring White to answer the question again would have minimal impact and would result in harassment of the witness and repetitive testimony. Thus, the trial court did not abuse its discretion in limiting cross-examination on this issue. Accordingly, appellant‘s third assignment of error is overruled.
D. The Trial Court Did Not Err in Overruling Appellant‘s Hearsay Objection
{55} In his eighth assignment of error, appellant contends that the trial court erred in admitting improper hearsay evidence during Mitch Waring‘s testimony. In particular, appellant takes issue with Waring‘s testimony that Marie Anderson, after an encounter with law enforcement, asked White “where‘s your third kid, where‘s your kid at, you‘re supposed to have three kids.” Appellant also takes issue with Waring‘s testimony, that during the same encounter, Anderson screamed at White, saying “don‘t leave your two kids for this man. You‘re going to chase a man and leave your other two kids here.” Defense counsel objected to the statements but
{56} As discussed in the previous assignment of error, the
{57} “‘Hearsay’ is 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.”
{58} Ohio courts apply the following four-part test to determine the admissibility of statements as an excited utterance:
“(a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties
and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement of declaration spontaneous and unreflective, (b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs,
(c) that the statement or declaration related to such startling occurrence or the circumstances of such starling occurrence, and
(d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.”
(Emphasis in original.) State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 166, quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955), paragraph two of the syllabus. Accord State v. Felts, 2016-Ohio-2755, 52 N.E.3d 1223, ¶¶ 52-53 (4th Dist.). “The rationale of the rule is that circumstances surrounding the excited statement prevent the declarant from using reflective processes to fabricate a statement.” Felts at ¶ 53.
{59} Here, the statements at issue were immediately preceded by a startling event. Waring testified that immediately before the statements at issue were made, police had arrived to the house on Mabert Road looking for White, appellant, and the “three” children. Waring, Anderson, White, and appellant were all at the house at the time, but only Anderson spoke to the police on the porch while the rest remained hidden inside. After the police left Waring testified
{60} Accordingly, there is no dispute that the requirements for the application of the excited-utterance exception exist here; and thus, the trial court did not err in overruling appellant‘s hearsay objection. Appellant‘s eighth assignment of error is overruled.
E. The Prosecuting Attorney Did Not Engage in Prosecutorial Misconduct
{61} In his sixth assignment of error, appellant contends that the prosecuting attorney made improper remarks in rebuttal closing argument that resulted in prosecutorial misconduct. Thus, he argues that his convictions should be reversed. Notably, appellant did not object to the remarks during the trial proceedings.
{62} This Court previously set forth in Wellston v. Horsley, 4th Dist. Jackson No. 05CA18, 2006-Ohio-4386, the standard that applies when evaluating claims that the prosecutor engaged in misconduct by improperly commenting in closing argument. In that case we stated the following:
The Supreme Court of Ohio has admonished us that prosecutorial misconduct constitutes reversible error only in ” ‘rare instances.’ ” State v. Keenan (1993), 66 Ohio St.3d 402, 405, 613 N.E.2d 203, quoting State v. DePew (1988), 38 Ohio St.3d 275, 288, 528 N.E.2d 542. “The test for prosecutorial misconduct is whether the conduct complained of deprived the defendant of a fair trial.” State v. Jackson (2001), 92 Ohio St.3d 436, 441, 751 N.E.2d 946. “The test for prejudice regarding prosecutorial misconduct * * * is ’ “whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.” ’ ” State v. Hartman (2001), 93 Ohio St.3d 274, 295, 754 N.E.2d 1150 (quoting State v. Hessler (2000), 90 Ohio St.3d 108, 125, 734 N.E.2d 1237 and State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883). To establish prejudice, an accused must show that a reasonable probability exists that, but for the prosecutor‘s improper remarks, the result of the proceeding would have been different. State v. Loza (1994), 71 Ohio St.3d 61, 83, 641 N.E.2d 1082. An appellate court must examine the prosecution‘s closing argument in its entirety to determine whether the remarks prejudiced the defendant. State v. Treesh (2001), 90 Ohio St.3d 460, 466, 739 N.E.2d 749; State v. Keenan (1993), 66 Ohio St.3d 402, 410, 613 N.E.2d 203. It amounts to a de novo independent review.
During closing arguments, the prosecution is given wide latitude to convincingly advance its strongest arguments and positions. See State v. Phillips (1995), 74 Ohio St.3d 72, 90, 656 N.E.2d 643; Treesh, 90 Ohio St.3d at 466. Nevertheless, the prosecutor must avoid going beyond the
evidence presented to the jury in order to obtain a conviction. See, e.g., State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883. “[P]rosecutors must be diligent in their efforts to stay within the boundaries of acceptable argument and must refrain from the desire to make outlandish remarks, misstate evidence, or confuse legal concepts.” State v. Fears (1999), 86 Ohio St.3d 329, 332, 715 N.E.2d 136. When in a case like this, a defendant fails to object to the prosecutor‘s alleged misconduct, he waives all but plain error.3 See
Crim.R. 52 ; State v. Hartman (2001), 93 Ohio St.3d 274, 294, 754 N.E.2d 1150; State v. Ballew (1996), 76 Ohio St.3d 244, 254, 667 N.E.2d 369. Notice of plain error underCrim.R. 52(B) is to be taken with the utmost of caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. See, e.g., State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240; State v. Hill (2001), 92 Ohio St.3d 191, 196, 749 N.E.2d 274. Plain error should not be invoked unless it can be said that, but for the error, the outcome of the trial would clearly have been otherwise. See, e.g., State v. Jackson (2001), 92 Ohio St.3d 436, 438; State v. Sanders (2001), 92 Ohio St.3d 245, 263, 750 N.E.2d 90.
{63} Here, appellant claims that the following statement, made by the prosecutor during rebuttal closing argument, implies that he should have taken responsibility for TJ‘s death:
In this videos (sic) did he ever once stand up and take it like a man? Listen, I‘m in charge out there. I‘m the one that‘s -- took her to the doctor -- took him to the doctor. I‘m the one
that did this. I‘m the one that potty trained him. Stand up and take it like a man.
Appellant further claims that the statement implies that he should have given up his right to remain silent, and that the remarks deprived him of his right to a fair trial.
{64} After reviewing the prosecutor‘s remarks during closing arguments, we do not find that the remarks were improper. When read in proper context, it is clear that the prosecutor was responding to appellant‘s closing argument, in which he advanced a theory that White was “the monster“, and should be solely responsible for TJ‘s death and only testified to “save her own neck“. The language used by the prosecutor was not intended to be a comment on appellant‘s failure to admit to the crime, but rather, was meant to dispute appellant‘s version of events. Furthermore, appellant‘s interviews with law enforcement were played for the jury; and the prosecutor could fairly comment on the content of those interviews. We do not believe that such remarks are improper, or go beyond the bounds of acceptable argument. Moreover, the comments do not constitute a penalty on appellant‘s decision to exercise his constitutional right to trial or right to remain silent.
{65} Accordingly, we find no merit to appellant‘s arguments, and overrule his sixth assignment of error.
F. The Trial Court Did Not Commit Plain Error When It Failed to Include the Accomplice Jury Instruction — R.C. 2923.03(D)
{66} In his fourth assignment of error, appellant contends that the trial court committed plain error when it failed to include a jury instruction regarding the testimony of an accomplice.
{68}
If an alleged accomplice of the defendant testifies against the defendant in a case in which the defendant is charged with complicity in the commission of or an attempt to commit an offense, an attempt to commit an offense, or an offense, the court, when it charges the jury, shall state substantially the following:
“The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed
complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution. It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth.”
{69} Here, it is undisputed that White and appellant were accomplices. It is also undisputed that the trial court did not give the accomplice jury instruction pursuant to
{70} On the facts before us, we are not persuaded that the trial court‘s failure to include the
{71} Accordingly, appellant has not shown plain error, and appellant‘s fourth assignment of error is overruled.
G. The Murder Conviction is Supported By Sufficient Evidence and the Other Convictions are Not Against the Manifest Weight of the Evidence
{72} In his first assignment of error, appellant contends that his convictions are supported by insufficient evidence, or alternatively, are against the manifest weight of the evidence. He essentially argues that the State‘s witnesses, especially White, are not credible, and without their testimony, no evidence exists that he had any involvement or knowledge of what happened to TJ.
{73} Whether a conviction is supported by sufficient evidence is a question of law that we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997); State v. Allah, 4th Dist. Gallia No. 14CA12, 2015–Ohio–5060, ¶ 8. In making this determination, we must determine whether the evidence adduced at the trial, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. State v. Davis, 4th Dist. Ross No. 12CA3336, 2013–Ohio-1504, ¶ 12. “The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{74} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable
{75} Appellant contends that his conviction for murder is based on insufficient evidence because White is not credible and without her testimony, no evidence exists that would support actual participation by appellant in TJ‘s death. “Questions of witness credibility are irrelevant to the issue of whether there is sufficient evidence to support a conviction, however.” State v. Ruark, 10th Dist. Franklin No. 10AP-50, 2011-Ohio-2225, ¶ 21, citing State v. Preston-Glenn, 10th Dist. Franklin No. 09AP-92, 2009-Ohio-6771, ¶ 38. “In determining whether a conviction is based on sufficient evidence, we do not address whether the evidence is to be believed, but whether, if believed, the evidence against defendant would support a conviction.” Id., citing State v. Smith, 10th Dist. Franklin No. 08AP-736, 2009-Ohio-2166, ¶ 26, State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, and State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.
{77} Appellant argues that his remaining convictions for aggravated murder, child endangering, tampering with evidence, and gross abuse of a corpse are against the manifest weight of the evidence because of the “credibility issues” of the witnesses — particularly White. He argues that the witnesses’ credibility has been destroyed due to their personal and criminal histories - and in the case of White, her incredible explanation of events that “def[ies] explanation” - and thus could not be relied upon by the jury. “However, * * * a conviction is not against the manifest weight of the evidence simply because the jury believed the prosecution testimony. * * * [A]s the trier of fact, the jury was free to believe or disbelieve all, part, or none of the testimony of the witnesses presented at trial.” (Citations omitted.) State v. Erickson, 12th Dist. Warren No. CA2014-10-131, 2015-Ohio-2086, ¶ 42.
{78} The jury apparently believed all or part of White‘s testimony that appellant perpetrated abuse and neglect against TJ that ultimately resulted in his death; and they were free to do so. State v. Shirley, 4th Dist. Ross No. 16CA3562, 2017-Ohio-1520, ¶ 23. They also apparently believed the testimony of the State‘s other witnesses whose testimony bolstered and corroborated much of the evidence presented through White. The jury was able to observe the witnesses on the witness stand, and was in the best position to judge and weigh the credibility of
{79} After a thorough review of the record, we cannot say that this is an exceptional case where the evidence weighs heavily in favor of appellant and where it is clear that the jury lost its way or created a manifest miscarriage of justice.
{80} Accordingly, having concluded that appellant‘s murder conviction is supported by sufficient evidence, and that his remaining convictions are not against the manifest weight of the evidence, we overrule appellant‘s first assignment of error.
H. Appellant was Not Deprived of the Effective Assistance of Counsel
{81} In his fifth assignment of error, appellant alleges numerous instances where his counsel performed deficiently, and argues that the prejudicial effect of the errors deprived him of his right to the effective assistance of counsel.
{82} To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different. State v. Short, 129 Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either part of the test is fatal to the claim. Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). “Because this issue cannot be presented at trial, we conduct the initial review.” State v. Plymale, 4th Dist. Gallia No. 15CA1, 2016–Ohio–3340, ¶ 34.
{84} Appellant first contends that his trial counsel acted deficiently because he failed to object to the opinion testimony of the coroner, Dr. Lehman, or to the admission of Lehman‘s autopsy report. Appellant notes that attached to the autopsy report is a report from Dr. Elizabeth Murray, a forensic anthropologist consulted by Dr. Lehman. Dr. Murray did not testify at trial, and Murray‘s report includes a questionnaire that was circulated to a number of unnamed colleagues. The answers provided by these unnamed colleagues were attached to the autopsy report and allowed to be seen by the jury. Appellants submits that his trial counsel was ineffective because he should have (1) objected to the opinion testimony of Dr. Lehman as it was based on the opinions of numerous other individuals, and (2) objected to the admission of the autopsy report due to inadmissible hearsay.
{85} We conclude that appellant‘s trial counsel did not perform deficiently when it failed to object to Dr. Lehman‘s testimony or to the admission of the autopsy report. “[A]n autopsy report [prepared by a nontestifying medical examiner] that is neither prepared for the primary purpose of accusing a targeted individual nor prepared for the primary purpose of
{86} Next, appellant asserts that his trial counsel‘s failure to request the jury instruction set forth in
{88} We initially note that appellant‘s claim that the State failed to file a notice of intention to use other acts evidence is inaccurate. In fact, the State filed such notice on August 30, 2017; revealing that it intended to introduce evidence of other acts such as drug abuse and a pattern of abusive behavior towards children.
{89} “A trial court has broad discretion in the admission or exclusion of evidence, and so long as such discretion is exercised in line with the rules of procedure and evidence, its judgment will not be reversed absent a clear showing of an abuse of discretion with attendant material prejudice to defendant.” State v. Dunham, 4th Dist. Scioto No. 04CA2931, 2005-Ohio-3642, ¶ 28.
{90}
{91} Here, the State introduced the evidence to show motive, scheme, planning, and knowledge as it pertained to appellant‘s participation in the offenses charged in the indictment. Therefore, the evidence was admissible pursuant to
{92} Appellant contends that even if the evidence is relevant, his trial counsel still provided ineffective assistance by failing to object to its admission under
{93} Here, White testified, inter alia, that appellant would choke her until she passed out, and that he would “fold” up their child Noah until his oxygen supply would be cut-off and he would turn blue. She also testified that appellant would beat her for hours on end. While this testimony is certainly disturbing, it is also highly relevant for the reasons previously discussed. Hence, we find that the probative value of the bad acts testimony outweighs any prejudice to appellant. Therefore, his trial counsel was not ineffective for failing to object to the testimony on the basis of
{94} Lastly, appellant contends that his trial counsel‘s failure to object to the alleged improper remarks of the prosecutor during rebuttal closing argument deprived him of his right to the effective assistance of counsel. However, in resolving appellant‘s sixth assignment of error, we determined that the prosecutor‘s remarks during closing arguments were not improper.
{95} Based on the foregoing, appellant‘s fifth assignment of error is overruled.
I. The Cumulative Error Principle is Inapplicable
{96} In his ninth and final assignment of error, appellant contends that cumulative errors committed during his trial deprived him of a fair trial and require a reversal of his convictions. Under the doctrine of cumulative error, “a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of [the] numerous instances of trial court error does not individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995).
{97} “Before we consider whether ‘cumulative errors’ are present, we must first find that the trial court committed multiple errors.” State v. Harrington, 4th Dist. Scioto No. 05CA3038, 2006–Ohio–4388, ¶ 57, citing State v. Goff, 82 Ohio St.3d 123, 140, 694 N.E.2d 916 (1998). Because we have found no errors, the cumulative error principle is inapplicable. Accordingly, we overrule appellant‘s ninth assignment of error.
IV. Conclusion
{98} Having overruled all of appellant‘s assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
By: ______________________________
Marie Hoover, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.