STATE OF OHIO, Plaintiff-Appellee, vs. DYLAN HURT, Defendant-Appellant.
APPEAL NO. C-230370
TRIAL NO. B-2001994-B
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
August 16, 2024
[Cite as State v. Hurt, 2024-Ohio-3115.]
Bock, Presiding Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 16, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Angela J. Glaser, for Defendant-Appellant.
{1} Defendant-appellant Dylan Hurt appeals his convictions for aggravated murder and attempted murder stemming from two drive-by shootings in April 2020.
{2} Hurt first argues that the trial court erred in quashing his subpoena of his codefendant Leaunte Baltimore without holding a hearing. Because Baltimore‘s attorneys appeared before the court and stated that Baltimore intended to invoke his privilege against self-incrimination, and Hurt‘s attorneys did not proffer any non-incriminating line of questioning, we hold that the trial court did not err in quashing the subpoena without questioning the codefendant personally.
{3} Next, Hurt asserts that the trial court violated his right to confront the witnesses against him when it removed him from the courtroom twice during his jury trial. We overrule Hurt‘s assignment of error because we cannot say that the trial court abused its discretion by finding that Hurt was voluntarily absent after Hurt initially refused to come to court and then refused to answer the trial court‘s direct questions regarding his desire to be present.
{4} Hurt further contends that the trial court committed plain error in not severing the counts in the indictment related to the two separate shootings, and that he received ineffective assistance of counsel because his attorneys failed to argue a prior motion to sever. Because the evidence related to both shootings was simple and distinct, we hold that Hurt was unable to demonstrate prejudice by the joinder of the counts and we accordingly overrule both assignments of error.
{5} Finally, Hurt argues that his convictions are based on insufficient evidence and against the manifest weight of the evidence. We overrule this assignment
{6} Because we find no error, we affirm the trial court‘s judgment.
I. FACTS AND PROCEDURE
A. Procedural history
{7} The state indicted Hurt for aggravated murder, murder, attempted murder, felonious assault, and having weapons under disability (“WUD“).1 The charges stemmed from two shootings: one on Llewellyn Avenue and another that resulted in the death of David Norwood. Each count other than the WUD counts carried gun specifications. And in a separate case later consolidated with the shooting cases, Hurt was charged with failure to comply for attempting to flee during his arrest.
{8} Hurt‘s first set of attorneys moved to sever the Llewellyn shooting counts from the Norwood shooting counts. Before the court ruled on the motion, Hurt‘s attorneys withdrew. At a hearing on another motion, Hurt‘s new attorneys stated they were adopting prior counsel‘s motion to sever. While the trial court stated it would hear arguments on the motion to sever later, it did not rule on that motion and Hurt‘s counsel did not pursue it.
{9} After the state produced a purported confession authored by Hurt‘s codefendant Leaunte Baltimore, Hurt subpoenaed Baltimore to testify at trial. The trial court granted Baltimore‘s motion to quash Hurt‘s subpoena based on Baltimore‘s attorney‘s representation that Baltimore would invoke his Fifth Amendment right against self-incrimination and refuse to answer any questions asked by Hurt‘s counsel.
{11} After merging several counts, the trial court sentenced Hurt to life in prison without parole for aggravated murder with a five-year term for the gun specification and a ten-to-15-year term in prison on the attempted-murder charges with a five-year gun specification. The trial court ordered the two attempted-murder sentences to run concurrently and the remainder to run consecutively, for an aggregate sentence of 20-25 years consecutive to life in prison without parole.
B. Facts
{12} Hurt‘s charges stemmed from two shootings in Cincinnati‘s South Cumminsville neighborhood in April 2020.
1. Llewellyn Avenue Shooting
{13} On April 7, 2020, shortly before 3:58 p.m., a truck driver witnessed a drive-by shooting at the intersection of Llewellyn Avenue and Elmore Street targeting A.O., J.G, and a third unidentified individual (“the Llewellyn shooting“). The truck driver described seeing a dark-colored Jeep Wrangler with the doors and roof removed drive to where A.O, J.G., and the third individual were standing. He recalled seeing three occupants in the Jeep. Two occupants stood up in the Jeep and shot at the three people standing on the corner. Two of the people on the corner took cover behind an SUV and the third was lying on the ground. The Jeep then sped away.
{15} After the Jeep left the scene, the truck driver observed one of the people on the corner move the person lying on the ground to a truck and drive away. The third person followed him in a separate car. Casings recovered from the scene suggested that a person standing on the corner had returned fire at the Jeep.
{16} On cross-examination, the truck driver stated that he had told detectives a week after the shooting that the person in the Jeep had been wearing an orange hoodie. The truck driver did not identify Hurt as one of the people in the Jeep.
{17} Sergeant Kevin Lynn went to the University of Cincinnati Medical Center (“U.C.M.C.“) to see if any shooting victims had arrived at the hospital. He learned that A.O. had brought J.G. to U.C.M.C. When A.O. attempted to leave the hospital, Lynn stopped and detained him.
{18} When Detective Joseph Coombs asked about J.G.‘s status, U.C.M.C. personnel told him that J.G. was in surgery for nonlife-threatening injuries. Coombs did not have any contact with J.G. at the hospital. Coombs later went to the police station where he interviewed A.O., who did not cooperate with investigators. The state later charged A.O. with having weapons under a disability. Coombs testified that at A.O.‘s court dates from 2020 through 2022, he had contact with both A.O. and J.G.,
2. David Norwood‘s murder
{19} On April 15, 2020, around 4:21 p.m., David Norwood died in a drive-by shooting on Cass Avenue in South Cumminsville. A resident testified that he saw a black Jeep and a silver sedan driving down the road. When the silver sedan “pulled over like he was gonna let the truck by,” the Jeep began to pass the sedan. But the Jeep stopped and “somebody stuck a gun out the window and started shooting at that little car. And another passenger came from the back window with another gun shooting out the back of the car.” The Jeep then drove away. The Jeep had tinted windows, and the witness was unable to identify any of its occupants.
{20} The resident testified that he was a “car guy” and that the Jeep caught his eye because it was “a really good-looking truck.” The shooters’ Jeep had all the doors attached. The state showed the resident two photographs of a Jeep that Hurt had rented. The resident testified that the shooters’ Jeep looked different. On cross-examination, the witness stated that he had told detectives shortly after the shooting that the Jeep had a red stripe on it and that the Jeep‘s fender had silver bolts on it. He agreed that the state‘s photos looked different than the Jeep he remembered.
3. A funeral, a police chase, and a gun
{21} Two days after Norwood‘s murder, officers monitored Sanchez Lee‘s funeral. Lee, Baltimore‘s brother, had been murdered. Officer Eric Schaible observed Hurt at the funeral and saw Hurt get into the driver‘s seat of a black Kia Altima. Officers attempted to initiate a traffic stop, but the vehicle fled. The police followed the car, but called off the pursuit after they lost sight of the car.
4. The state presented circumstantial evidence
{23} The state produced circumstantial evidence that (1) before the shootings, Hurt had rented a Jeep matching the description of the shooters’ Jeep; (2) video showed the Jeep in the area of both shootings near the time of the shootings and Hurt wearing clothing similar to the clothing worn by a person in the Jeep on the days of both shootings; (3) Hurt‘s and Baltimore‘s cell phones were together “in the area” of the shootings on both days; and (4) shell casings recovered from the Jeep matched shell casings recovered from both crime scenes and the Cobray found on the road.
a) K.F. rented a Jeep for Hurt
{24} After the Llewellyn shooting, officers searched license plate readers (“LPR“) in the area to identify a vehicle matching the description of the shooters’ vehicle. Officers located an LPR a mile from the Llewellyn shooting that recorded a dark-colored Jeep with the doors removed going north into the Villages at Roll Hill apartment complex (“Roll Hill“) near the time of the shooting. The Jeep had a Kentucky license plate.
{25} Detective Dewayne McMenama determined that the Jeep was a rental from Avis Car Rental at the Northern Kentucky Airport (“CVG“). McMenama learned from Avis that K.F. had rented the Jeep. When McMenama interviewed K.F., she confirmed that she had rented the Jeep days before the Llewellyn shooting. K.F.
{26} K.F. testified that the day before the Llewellyn shooting, she and Hurt returned to Avis because Hurt had lost the keys to the Jeep. K.F. again identified Hurt as the man with her in the CVG surveillance video. The video shows Hurt wearing a red and black sweatshirt, black pants, and black and white slides.
{27} A few days after the Llewellyn shooting, Hurt texted K.F. two photos: one showed the Jeep with damage to the rear passenger-side window and the other was the license plate, which matched the rented Jeep‘s license plate. When K.F. took the Jeep to be repaired, she noticed it had bullet holes. Hurt paid for the repairs.
b) Video evidence
i. The Jeep was near Llewellyn Avenue before the shooting
{28} Officers recovered video footage from cameras near both shootings. Cameras at Roll Hill, about a mile from Llewellyn Avenue, captured the Jeep, with its doors and windows removed, entering Roll Hill at 3:25 p.m. and parking in front of Baltimore‘s girlfriend‘s (“C.B.“) apartment. A man in a white t-shirt exited from the car and entered the apartment. A man in a red sweatshirt moved from the passenger side of the Jeep into the driver‘s seat. A third person moved to the passenger side of the car. The man in the white t-shirt returned to the Jeep. When the Jeep left Roll Hill, the driver was wearing a red sweatshirt, black pants, black and white slides, and large, white-framed sunglasses. A video recovered from Baltimore‘s phone showed Hurt wearing similar sunglasses.
{29} The Jeep left and returned to the apartment before leaving Roll Hill again at 3:33 p.m., about 25 minutes before the Llewellyn shooting. LPR footage
ii. Hurt‘s Jeep and Norwood‘s vehicle were captured on camera before Norwood‘s murder
{30} Police found a video on Baltimore‘s phone with time and date stamps corresponding with footage from LPRs and various cameras belonging to neighborhood businesses, a church, and a Metro bus. Baltimore‘s video showed Baltimore in a black jacket with the hood up in what appears to be the interior of the Jeep. The Jeep‘s driver was a man wearing a green-hooded sweatshirt, a surgical mask covering his face, and a black knitted cap. McMenama testified that this man was “clearly Hurt.” The sweatshirt had an orange logo on the right side of the chest. A video from Baltimore‘s phone recorded a few days before Norwood‘s murder showed Hurt wearing a similar sweatshirt and hat.
{31} The various neighborhood cameras showed a dark Jeep, with “damage that stood out” on the passenger side, driving in and near the South Cumminsville neighborhood. Footage showed the Jeep leaving C.B.‘s apartment approximately 11 minutes before Norwood‘s 4:21 p.m.2 murder. Two people left C.B.‘s apartment and got into the Jeep. One wore a green-hooded sweatshirt with the hood up and a surgical mask. The other wore a dark jacket with the hood up.
{32} The cameras captured the Jeep driving on several streets, turning around, and driving at a high rate of speed. The damage to the Jeep‘s passenger side was visible in parts of the footage. At 4:19—two minutes before the murder—footage
{33} At 4:31 p.m., after Norwood‘s murder, cameras captured a dark Jeep passing a nearby apartment complex and then turning onto Beekman Street, near an entrance ramp to I-74 West.
c) Hurt‘s and Baltimore‘s cell phones were in the area of both shootings
{34} Lance Kepple, a retired FBI agent, testified as an expert cellular phone record analyst. He testified that cellular phone towers each create a unique cell. Radio signals from the tower go to a phone, which then sends a signal back to the tower. As a phone moves, it receives and provides signals to different towers. The integrated system “constantly” measures a phone‘s distance from a tower, permitting an analyst to determine that a phone was “at or near” a location. “At or near” can mean up to a mile from a location.
{35} Police identified Hurt‘s cellphone number and two phone numbers associated with Baltimore. Kepple compared these cell phone records with dates and times when Hurt was at CVG and of the two shootings. Kepple testified that Hurt‘s cellphone was at or near CVG at the time that he and K.F. rented the Jeep and when they returned to replace the lost keys.
{36} On the day of the Llewelyn shooting, Hurt‘s and Baltimore‘s phones were at or near Roll Hill. Between 3:49 p.m. and 3:57 p.m., Baltimore‘s phone switched towers, which most commonly is caused by the phone moving, from one west of Llewellyn Avenue to another tower about a half mile east of Llewellyn Avenue, suggesting that the phone had moved towards the scene of the shooting.
d) Police found shell casings used in the shootings inside the Jeep
{38} A week after Norwood‘s murder, Officer Taylor Howard spotted the Jeep that Hurt had been driving and initiated a traffic stop. The driver, R.S., was the sole occupant. Law enforcement processed the Jeep for evidence.
{39} Officers found 9 mm and .40-caliber casings in the Jeep. Kelsey Cramer, a forensic scientist, testified that the 9 mm casings found in the Jeep matched casings found at the Llewelyn Shooting. A test fire from the Cobray that police found after Hurt fled matched 9 mm casings found at the Llewellyn shooting. And a .40-caliber casing found in the Jeep matched casings found at the Norwood murder scene.
{40} Officers observed signs that the Jeep had been damaged and repaired including broken glass, a rear passenger-side window that was a different brand than the other windows, and bullet holes in the rear passenger panel, which had been patched and painted.
II. Law and Analysis
A. First assignment of error: Quashed subpoena
{41} In his first assignment of error, Hurt argues that the trial court abused
{42} Baltimore‘s attorneys moved to quash the subpoena and represented to the court that they had advised Baltimore not to testify and Baltimore “was quite clear that he was not interested in” testifying for the state or Hurt. Baltimore‘s attorneys reaffirmed this position later in the trial. At the time, Baltimore faced criminal charges related to the shootings. The trial court quashed the subpoena without hearing directly from Baltimore.
1. Sixth Amendment Compulsory Process
{43} We review a trial court‘s ruling on a motion to quash a subpoena for an abuse of discretion. State v. Bussle, 2017-Ohio-4045, ¶ 14 (11th Dist.).
{44} The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides in relevant part, “In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.” See Gannett Co. v. DePasquale, 443 U.S. 368, 379 (1979). “Few rights are more fundamental than the right of an accused to present witnesses on his behalf.” State v. Brown, 64 Ohio St.3d 649, 652 (1992). A defendant‘s right to present a complete defense, however, can run counter to a potential witness‘s privilege against self-incrimination found in the Fifth Amendment. Hoffman v. United States, 341 U.S. 479, 485-486 (1951).
{46} Trial courts must “conduct a sufficient inquiry to determine that the witness will not offer any testimony” and instead intends to invoke the Fifth Amendment privilege as it relates to all proposed lines of questioning. State v. Wade, 2023-Ohio-3490, ¶ 58 (10th Dist.). The trial court must ensure the defendant seeks to elicit only incriminating testimony. Id. A trial court need not compel a person to testify on behalf of a criminal defendant when it determines that, rather than offering testimony, the person will merely invoke the Fifth Amendment privilege against self-incrimination. State v. Kirk, 72 Ohio St.3d 564, 569 (1995); but see Rios-Vargas v. People, 2023 CO 35 (reasoning that the Fifth Amendment right is an “option of refusal, not a prohibition of inquiry,” and holding that a defendant may call a nonparty alternate suspect and question the witness in front of the jury); State v. Herbert, 234 W.Va. 576, 584 (2014) (same). Moreover, there is no Sixth Amendment right to call a witness to the stand for the sole purpose of having that witness invoke the Fifth Amendment in front of the jury. Kirk at 569.
{47} A trial court conducts a sufficient inquiry where a witness‘s attorney informs the court that the witness has been advised not to testify and the witness does not intend to testify. See State v. T.S., 2021-Ohio-2203, ¶ 31 (10th Dist.); see also State v. Spangler, 2017-Ohio-268, ¶ 36 (5th Dist.) (“While [the witness] herself was not
2. Granting the motion to quash was within the trial court‘s discretion
{48} The trial court did not abuse its discretion in quashing the subpoena issued to Baltimore because his attorneys represented that he would invoke his Fifth Amendment privilege. Hurt intended to question Baltimore about the substance of the alleged confession. He did not suggest that he would question Baltimore about any nonincriminating topic. Because an answer to questions about the alleged confession would have a “reasonable tendency” to incriminate Baltimore, his assertion of the Fifth Amendment privilege was valid. See Arnold, 2016-Ohio-1595, at ¶ 45. Given Baltimore‘s counsel‘s representations and the only topic about which Hurt intended to illicit testimony—the alleged confession—the trial court conducted a sufficient inquiry.
{49} Hurt asserts that the trial court was required to conduct a hearing before quashing the motion. He is correct that this court has stated, “When deciding a motion to quash a subpoena under
{50} While generally a trial court should hold a hearing to determine whether a witness is validly invoking the Fifth Amendment privilege against self-incrimination, under the circumstances of this case—Baltimore‘s attorneys represented to the court that they had advised Baltimore not to testify, he had no intention of testifying, and Hurt‘s counsel proposed no line of question that would not incriminate Baltimore—the trial court could clearly ascertain that Baltimore‘s assertion of his privilege was valid and a hearing was not required.
{51} We overrule Hurt‘s first assignment of error.
B. Second assignment of error: Hurt‘s removal from his trial
{52} Hurt‘s second assignment of error asserts that the trial court violated his constitutional right to be present at his trial when it removed him from the courtroom. During Hurt‘s trial, the trial court removed him from the courtroom on multiple days. Because Hurt‘s arguments are limited to his removal on the third and fourth days of trial, we limit our analysis to those days.
1. Criminal defendants have the right to attend their trials
{53} A trial court‘s decision to remove a defendant from the courtroom is reviewed for an abuse of discretion. See Illinois v. Allen, 397 U.S. 337, 343 (1970).
{54} A defendant has the right to be present in the courtroom at every stage of the trial “absent waiver of his rights or other extraordinary circumstances.” State v. Williams, 6 Ohio St.3d 281, 286 (1983). A defendant‘s right to be present at every critical stage of a trial is guaranteed by the United States Constitution‘s Sixth Amendment‘s Confrontation Clause and the Fifth Amendment‘s Due Process Clause.
{55} Moreover,
{56} Like most rights, however, a defendant‘s right to be present at trial can be waived. Waiver of a constitutional right involves “the intentional relinquishment or abandonment of a known right or privilege.” State v. Stone, 43 Ohio St.2d 163, 166 (1975). This court has stated that the constitutional right to be present at trial, as codified in
{57}
{58} Defendants are voluntarily absent where they refuse to leave their jail cells. State v. Grate, 2020-Ohio-5584, ¶ 85. The Eleventh Circuit has held that, after a defendant initially refuses to come to court from jail, the defendant‘s subsequent repeated refusal to answer whether the defendant wants to be present can constitute a waiver of the right to be present. United States v. Sterling, 738 F.3d 228, 237 (11th Cir. 2013).
2. The trial court did not abuse its discretion in continuing trial without Hurt
{59} Based on the specific circumstances in this case, we hold that the trial court did not abuse its discretion by conducting trial without Hurt present.
a) Day four
{60} Hurt was present for the first three days of his trial. But on the morning of the fourth day of trial, deputies informed the trial court that Hurt had told them he did not want to go to court. Hurt told them that he “felt like his defense team wasn‘t working for him.” The trial court ordered the deputies to bring Hurt to the courtroom. When he arrived in the courtroom, the following exchange occurred:
COURT: And, Mr. Hurt, I will give you the option to stay and take part in your defense. At this time, would you like to do that?
HURT: I keep telling you all the same thing. I keep telling you the same thing. I have a right to a fair trial. I mean, go to trial. Ain‘t fair.
. . .
COURT: Okay. Would you like to stay here and participate or not? It‘s a yes or no question, because we‘ve got to move on here.
HURT: Proceed. But, like, I don‘t know what is going on. Like, I‘m not comfortable with sitting here and they not doing what I asking them to do, asking them to -- asking them to say and not comfortable with doing it.
COURT: Okay. I am going to ask you one more time. It‘s a yes or no question. Would you like to stay here and participate in your trial, or would you like to be taken back upstairs?
HURT: I don‘t want to proceed if I‘m not here. I don‘t know what is going on.
COURT: Well, then you need to stay here. Doesn‘t that seem like that --
HURT: That‘s a problem with me staying here though.
COURT: What‘s the problem?
HURT: I just told you. I keep saying the same thing.
COURT: Well, I‘m going to have to disagree with you there, but I‘m not going to fight with you over what you think your attorneys are doing, because the last time I checked, you didn‘t graduate from law school and they did, and they are pretty highly regarded in this courthouse. Are you going to stay or not? Yes or no?
HURT: I keep telling you the same thing.
COURT: Okay. Then take him back upstairs because that‘s a no to me, to this court. All right. Thank you. We‘ll continue the trial without you.
{61} After deputies removed Hurt, his counsel stated that unless Hurt gave an unequivocal “no” on the record, the court needed “to be very careful.” The trial court agreed, brought Hurt back to the courtroom, and stated:
COURT: I‘ll ask you one more time. Do you want to participate in this. It‘s a yes—
HURT: I just told you.
COURT: Don‘t tell me you just told me.
HURT: You just keep asking the same thing. I just told you. That‘s it.
COURT: Mr. Hurt —
HURT: I told you.
COURT: — yes or no, would you like to stay and participate in your trial? Yes or no?
HURT: You told them to take me back.
COURT: Would you like to stay?
HURT: I told you what I said.
CRIMINAL BAILIFF: Yes or no? You need to say yes or you need to say no.
COURT: Okay. Mr. Hurt, I‘m going to take your noncompliance —
HURT: I‘m uncomfortable.
COURT: No, no. That‘s okay. I‘m going to take your noncompliance with answering the question as a no, and, unless you say yes or no, and tell me affirmatively you want to stay here, I‘m going to send you back upstairs and we‘re going to continue without you. Are you going to give me an affirmative?
HURT: I keep saying the same thing.
COURT: Okay. I will see you later, Mr. Hurt. Thank you for your help.
{62} The trial court then removed Hurt from the courtroom without any
{63} Competent, credible evidence supported the trial court‘s finding that Hurt was voluntarily absent on the fourth day of trial. The trial court‘s exchange with Hurt began because of Hurt‘s initial refusal to leave the jail, and Hurt was only present in court because the trial court ordered the deputies to bring Hurt to the courtroom. While generally, a defendant‘s silence or refusal to answer should not be viewed as a waiver, in this case, the trial court only engaged Hurt in a discussion about whether he wanted to be present because Hurt initially refused to come to court.
{64} When asked by the trial court if he wanted to be present, Hurt responded both “proceed,” and that he did not want the trial to continue if he was not there. Had that been the extent of Hurt‘s statements, his absence would have been involuntary. Instead, Hurt conditioned his presence at trial on the trial court acquiescing to his request for new counsel. For example, immediately after Hurt said he wanted to proceed, he continued, “But, like, I don‘t know what is going on. Like, I‘m not comfortable with sitting here and they [his counsel] not doing what I asking them to do.” Hurt‘s conditional statements created the ambiguity that the trial court was seeking to resolve and it was reasonable for it to ask Hurt to provide an unequivocal answer to whether he wanted to attend trial.
{65} We find it particularly important that, after the trial court initially removed Hurt, it brought him back to give Hurt another chance to clarify his position.
But Hurt continued to refuse to answer yes or no, despite the trial court‘s indication that absent a clear “yes,” it would remove him.
{¶66} Considering Hurt‘s initial refusal to come to court and refusal to directly answer the trial court‘s question—did he want to be present for his trial—even after the trial court brought Hurt back, competent, credible evidence supported the trial court‘s factual finding that Hurt voluntarily waived his right to attend his trial. Accordingly, the trial court did not abuse its discretion by continuing trial without Hurt attending.
b) Day five
{¶67} The next morning, Hurt‘s counsel addressed the court:
DEFENSE COUNSEL: . . . I asked Mr. Hurt what his position is today as to being here. He said his position was the same as it was yesterday.
COURT: He does not want to be here; is that correct? Mr. Hurt, you have to speak up for the record. Do you want to participate in your defense today?
HURT: I told you yesterday I‘m not comfortable with my attorneys and stuff like that so I don‘t know --
COURT: I‘m asking you a yes or no question. Please respond.
HURT: I keep telling you the same thing.
COURT: I got the explanation.
HURT: Ain‘t nothing else for me to say.
COURT: Yes or no to my question whether you would like to sit today and participate in your trial?
HURT: Told you the same thing yesterday.
COURT: Is that yes or no? Can you please give me a yes or no answer?
HURT: I told you the same thing yesterday.
COURT: Mr. Hurt, we will take you back upstairs. We will proceed with the trial without your presence.
{¶68} The trial court then stated:
Again, today, he didn‘t refuse to come over, but he did come down and has refused on the record to participate in his defense. So at this time this court has done everything, along with the help of the attorneys and the sheriff‘s office frankly, to see to it that Mr. Hurt is comfortable and able to participate in his trial; but he is choosing to, for lack of a better word, manipulate the circumstances and will not sit and participate.
{¶69} The trial court instructed the jury not to consider Hurt‘s absence.
{¶70} Unlike the dialogue from day four, Hurt made no definitive statement that he wanted to be present. Given Hurt‘s counsel‘s representation that Hurt‘s position was “the same as it was yesterday,” the trial court‘s asking Hurt whether he wanted to be present at his trial was reasonable. Considering that the trial court removed Hurt from the courtroom the day before, Hurt‘s continued refusal to state that he wished to be present constituted waiver.
{¶71} We note that, other than instructing the jury to disregard Hurt‘s absence, the trial court took no measures to minimize prejudice to Hurt‘s case. Because the purpose of the right to confrontation is, in part, to facilitate “full and effective cross-examination,” Kentucky v. Stincer, 482 U.S. 730, 744 (1987), a cautionary instruction to the jury, while important, does not fully protect the interests the right to be present serves. There is no indication that Hurt‘s counsel was permitted
{¶72} While the better practice would have been to institute additional safeguards, because that Hurt was voluntarily absent, the trial court‘s failure to do so did not violate Hurt‘s constitutional rights. See State v. Evans, 2023-Ohio-237, ¶ 34 (5th Dist.) (“Appellant did not have an absolute right to watch the proceedings by video.“); People v. Paige, 22 N.Y.S.3d 220, ¶ 3 (2015) (stating that while courts should generally permit an excluded defendant to remotely observe the trial, it was not error to deny a request to do so under the facts of the case). The trial court did not abuse its discretion when it continued the trial without Hurt present. We overrule Hurt‘s second assignment of error.
C. Third assignment of error: severance
{¶73} Hurt‘s third assignment of error asserts that the trial court committed plain error when it failed to separate the counts arising from the Llewellyn shooting from those arising from Norwood‘s murder. A trial court‘s denial of a motion to sever counts is ordinarily reviewed for an abuse of discretion. State v. Torres, 66 Ohio St.2d 340, 343 (1981). But a defendant‘s failure to renew a motion to sever at the close of the case waives all but plain error. State v. Jordan, 2022-Ohio-2566, ¶ 40 (1st Dist.). For Hurt to prevail, he would have to demonstrate the trial court committed an obvious error that affected the outcome of the trial. State v. Mullins, 2024-Ohio-421, ¶ 11 (1st Dist.), quoting State v. Sowders, 2023-Ohio-4498, ¶ 11 (1st Dist.).
{¶74}
{¶75} But even if joinder is proper under
{¶76} Evidence is simple and direct, causing no prejudice to the defendant, when the evidence is uncomplicated to a degree that a jury can separate the proof required to establish the elements of each offense. State v. Nitsche, 2016-Ohio-3170, ¶ 87 (8th Dist.). Requiring the evidence to be simple and direct when joining offenses is intended to “prevent the jury from improperly considering evidence of various crimes as corroborative of each other. The very essence of the rule is that the evidence be such that the jury is unlikely to be confused by it or misuse it.” Id. If a conviction is the result of the jury combining proof on all offenses and the evidence on each individual count would be insufficient to support all the convictions, joinder was prejudicial. State v. Echols, 128 Ohio App.3d 677, 695 (1st Dist. 1998).
{¶77} The evidence in this case was simple and direct. There were two separate shootings, involving different victims, occurring in different locations, and on different dates. Different eyewitnesses observed and testified about the two shootings. See State v. Decker, 88 Ohio App.3d 544, 549 (1st Dist. 1993) (“The factual situation of each crime charged was easy to understand and was capable of segregation since the crimes charged involved different victims, different factual scenarios and different witnesses.“).
{¶78} We acknowledge that several witnesses testified about both shootings, including Detective McMenama, the firearms analyst, and the cell-phone analyst. And while the cell-phone and firearm evidence was complex, the ultimate conclusions that these experts offered—Hurt‘s cell phone was “in the area” of both shootings and shell casings found in the Jeep matched casings found at the scenes of both crimes—were not confusing. See State v. Marshall, 2023-Ohio-3542, ¶ 40 (6th Dist.) (“Evidence offered to prove a joined offense may be complex so long as it is not confused with evidence offered to prove the other joined offenses.“).
{¶79} The evidence was simple and direct and Hurt has failed to establish prejudice from the joinder of the counts. Because Hurt failed to demonstrate plain error, we overrule his third assignment of error.
D. Fourth assignment of error: ineffective assistance of counsel
{¶80} In his fourth assignment of error, Hurt argues that he received ineffective assistance of counsel because his attorneys failed to argue the motion to sever. As noted, though Hurt‘s first set of attorneys moved to sever the counts related to the Llewellyn shooting from the Norwood murder, and his second set of attorneys
{¶81} A licensed attorney is presumed to be competent. State v. Hamblin, 37 Ohio St.3d 153 (1988). Accordingly, defendants claiming ineffective assistance of counsel bear the burden of proving their counsel was ineffective. Id. Defendants asserting ineffective assistance must show both that their counsel‘s performance was deficient, and that had counsel been effective, the outcome of the proceedings would have been different. State v. Johnson, 2016-Ohio-4934, ¶ 28 (1st Dist.); see Strickland v. Washington, 466 U.S. 668, 687 (1984).
{¶82} As discussed above, Hurt was not prejudiced by the joinder of the counts related to the two shootings and cannot establish ineffective assistance of counsel. We overrule his fourth assignment of error.
E. Fifth assignment of error: sufficiency and weight of the evidence
{¶83} Hurt argues in his fifth assignment of error that his convictions were based on insufficient evidence and against the manifest weight of the evidence.
1. Sufficiency of the evidence
{¶84} A sufficiency-of-the-evidence challenge “tests ‘the adequacy of the evidence on each element of the offense.’ ” State v. Wright, 2024-Ohio-851, ¶ 25 (1st Dist.), quoting State v. Staley, 2021-Ohio-3086, ¶ 9 (1st Dist.). This court, viewing the evidence in a light most favorable to the state, must determine whether a reasonable fact finder could have found that the state proved beyond a reasonable doubt all the essential elements of each offense. State v. Kendrick, 2023-Ohio-1763, ¶ 15 (1st Dist.), citing State v. MacDonald, 2019-Ohio-3595, ¶ 12 (1st Dist.). This court does not weigh the evidence and when faced with evidence subject to more than one possible interpretation, we adopt an interpretation of the evidence consistent with the trial
{¶85} The state argued at trial that Hurt was the person driving the Jeep at both shootings and therefore he was, at a minimum, guilty on a theory of complicity of aggravated murder (Norwood) and attempted murder (A.O. and J.G.).
{¶86}
{¶87} To convict a defendant under a theory of aiding and abetting, the state must prove that the defendant ” ‘supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal.’ ” State v. McFarland, 2020-Ohio-3343, ¶ 29, quoting State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. The defendant‘s intent may be inferred from the surrounding circumstances, including the defendant‘s presence at the crime scene and conduct before, during, and after the crime. Johnson at 245. The presence of the defendant at the scene of the crime alone is not sufficient to prove that the defendant was an accomplice. Id. at 245.
a) Sufficient evidence supported attempted-murder convictions
{¶88} As an initial matter, Hurt cites
{¶89} To convict Hurt of attempted murder under
{¶90} Hurt argues that because there was no evidence that J.G. was harmed, because neither victim testified or participated in the investigation, and because no one specifically identified a shooter, the state failed to sufficiently support the attempted-murder charges. First, the state did not need to demonstrate that either victim suffered any physical harm. It only needed to show that Hurt‘s conduct, if successful, would have resulted in another person‘s death. And a defendant may be convicted of murder based on solely circumstantial evidence. State v. Nicely, 39 Ohio St.3d 147, 151 (1988). And ” ‘[c]ircumstantial evidence is not less probative than direct evidence, and, in some instances, is even more reliable.’ ” Id., quoting United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir. 1974). When the state produces evidence demonstrating that the defendant aided and abetted the person who pulled the trigger, that evidence sufficiently supports an attempted-murder conviction. State v. Jones, 2020-Ohio-4915, ¶ 46 (8th Dist.); see
{¶91} The eyewitness to the Llewellyn shooting testified that he saw a doorless dark-colored Jeep stop at the corner of Llewellyn and Elmore Street, where J.G., A.O.,
b) Sufficient evidence supported Hurt‘s aggravated-murder conviction3
{¶92} To convict Hurt of Norwood‘s aggravated murder, the state had to prove beyond a reasonable doubt that Hurt, purposely and with prior calculation and design, caused Norwood‘s death.
{¶93} The state presented evidence that occupants of a dark Jeep Wrangler
{¶94} Given the above, the state presented sufficient evidence that Hurt participated in Norwood‘s murder.
2. Hurt‘s conviction was not against the manifest weight of the evidence
{¶95} A manifest-weight-of-the-evidence challenge argues that the state did not carry its burden of persuasion at trial. Kendrick, 2023-Ohio-1763, at ¶ 16 (1st Dist.). In reviewing a conviction under this standard, an appellate court sits “as a ‘thirteenth juror’ ” and must “independently ‘review the entire record, weigh the evidence, consider the credibility of the witnesses, and determine whether the trier of fact clearly lost its way and created a manifest miscarriage of justice.’ ” State v. Kizilkaya, 2023-Ohio-3989, ¶ 15 (1st Dist.), quoting State v. Powell, 2020-Ohio-4283,
{¶96} Other than reciting the manifest-weight standard of review and saying that “[h]e was convicted on insufficient lean circumstantial evidence,” Hurt fails to develop a manifest-weight argument. For example, Hurt fails to attack the state‘s witnesses’ credibility, argue that the jury drew improper inferences from the evidence, or that the jury improperly resolved disputed evidence. Instead, he only argues that the evidence was insufficient. See State v. Laws, 2021-Ohio-166, ¶ 32 (3d Dist.). But sufficiency and weight are separate concepts requiring separate analyses. Id. This court need not develop Hurt‘s manifest-weight argument for him and we decline to do so.
{¶97} We overrule Hurt‘s fifth assignment of error.
III. Conclusion
{¶98} We overrule Hurt‘s assignments of error and affirm the trial court‘s judgment.
Judgment affirmed.
ZAYAS and BERGERON, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.