STATE OF OHIO v. DANA PARKS
C.A. No. 30049
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
October 18, 2024
[Cite as State v. Parks, 2024-Ohio-5026.]
Trial Court Case No. 2021 CR 03098/1 (Criminal Appeal from Common Pleas Court)
Rendered on October 18, 2024
CHRISTOPHER BAZELEY, Attorney for Appellant
MATHIAS H. HECK, JR., by NATHAN B. VANDERHORST, Attorney for Appellee
WELBAUM, J.
{¶ 1} Defendant-Appellant, Dana Parks, appeals from his convictions and sentences related to the July 2021 murder of K.H. In support of his appeal, Parks raises
{¶ 2} After reviewing the record, we conclude that the conviction for attempted arson was supported by sufficient evidence, as Parks was not present as an innocent bystander when the murder victim‘s car was burned. In addition, the trial court did not commit plain error in admitting alleged gruesome photos because the photos aided in proving the charges. The evidence against Parks was also overwhelming, and this case does not present exceptional circumstances warranting reversal to prevent a manifest miscarriage of justice.
{¶ 3} Further, Parks‘s trial counsel did not commit ineffective assistance in failing to ask for a mistrial based on an outside party‘s communication with a juror. The trial court properly held a hearing and found no reason that the juror could not be impartial. Given this fact, there was no reason to move for a mistrial. The trial court did not err in ordering a minimal amount of restitution. The court did not have to expressly state that it considered Parks‘s ability to pay; consideration can be inferred from the circumstances
{¶ 4} Additionally, Parks incorrectly claims that
I. Facts and Course of Proceedings
{¶ 5} On December 9, 2021, an indictment was filed charging Parks with 11 crimes related to K.H.‘s murder, which occurred on July 4, 2021. The charges included: two counts of murder (Counts One and Three); two counts of felonious assault (deadly weapon and serious harm) (Counts Two and Four); three counts of tampering with evidence (alter/destroy) (Counts Five, Six, and Seven); gross abuse of a corpse (Count Eight); attempt to commit arson (Count Nine); arson (Count Ten); and having weapons under disability (prior offense of violence) (Count Eleven). Five counts included a three-year firearm specification. Following the indictment, Parks pled not guilty, counsel was appointed, and bond was set at $1,000,000 (surety bond). In February 2022, Parks filed a waiver of speedy trial requirements, and in April 2022, the court reduced the bond to an
{¶ 6} Prior to trial (which ultimately began on November 13, 2023), Parks filed a motion in limine asking the court to exclude evidence, including a bullet casing found on the rear porch of his residence. The court overruled the motion at trial. See Transcript of Proceedings (Jury Trial and Sentencing Hearing) (“Tr.“), 503. During trial, the court granted Parks‘s
{¶ 7} At sentencing, the court merged Counts One through Four (the murders and felonious assaults), and the State elected to have the court sentence Parks on Count One (murder). During the hearing, the court imposed the following sentences: 15 years to life in prison on Count One, with the three-year gun specification imposed prior to and consecutive to that term; three years in prison on the firearm specification for Count Two, imposed prior to and consecutive to the term for Count One; concurrent sentences for the firearm specifications for Counts Three and Four; 36 months each on Counts Five and Six, concurrent to Count One; 24 months on Count Seven, consecutive to Count One; 12 months on Count Eight, concurrent to Count One; 24 months on Count Eleven, concurrent to Count One, and an additional three years in prison on the firearm specification for
{¶ 8} On January 5, 2024, the trial court filed its judgment entry, and Parks timely appealed. However, we dismissed the appeal for lack of a final appealable order because the judgment entry failed to reflect that the trial court had resolved all the pending charges against Parks. State v. Parks, 2d Dist. Montgomery No. 30020 (Decision & Final Judgment Entry, Feb. 15, 2024), p. 2-3. After the court filed an amended judgment entry on February 16, 2024, Parks again timely appealed, and we designated this appeal as 2d Dist. Montgomery C.A. No. 30049. We appointed appellate counsel for Parks on February 21, 2024, but for some reason, Parks filed a pro se notice of appeal on April 5, 2024. We dismissed that appeal as duplicative. See State v. Parks, 2d Dist. Montgomery No. 30097 (Decision & Final Judgment Entry, Apr. 9, 2024).
II. Sufficiency of the Evidence on Attempted Arson
{¶ 9} Parks‘s first assignment of error states that:
Parks’ Conviction for Attempted Arson as a Felony of the Fifth Degree Is Not Supported by Legally Sufficient Evidence.
{¶ 10} Parks contends that his attempted arson conviction, which involved burning the victim‘s automobile, was not supported by sufficient evidence. According to Parks, he lacked prior knowledge that his brother, Ernest, was going to set fire to the car, and he (Parks) was merely present at the scene. Parks further contends that the State failed to present sufficient evidence that the value of the automobile was more than $1,000.
{¶ 11} ” ‘Whether the evidence is legally sufficient to sustain a verdict is a question
{¶ 12} In addition to being charged with murder and felonious assault, Parks was charged with three counts of tampering with evidence relating to: the Valencia shooting scene (Count Five); personal items and the body of K.H. “in the wooded area of West Riverview and Linnbrook Drive” (Count Six); and a Buick motor vehicle associated with victim, K.H. (Count Seven). These were all third-degree felonies.
{¶ 13} Parks was also charged with abuse of a corpse (Count Eight, a fifth-degree felony); attempt to commit arson (Count Nine, a fourth-degree felony), and arson (Count Ten, a first-degree misdemeanor). At trial, the court overruled Parks‘s
{¶ 14} The crime alleged in Count Nine was a violation of
{¶ 15} However, since only an attempt was alleged, the conviction would be a fifth-degree felony. See
{¶ 16} To place the attempted arson charge in context, we note the following background (construing the evidence in the State‘s favor). The victim, K.H., was Parks‘s best friend and had been the best man at Parks‘s wedding a few months before the murder. Tr. at 243, 306, 308, and 317. On the evening of July 3, 2021, K.H. attended a family get-together held at the home of a longtime friend, J.H., and left her house around 12:38 a.m., i.e., in the early morning of July 4. J.H. expected to hear from K.H. later that night, but he did not call, which was unusual. Id. at 303, 308, and 310-311.1
{¶ 17} On the evening of July 3, Parks and several others attended a comedy show in Dayton, Ohio. The people who attended were: Parks and his wife, Heidi; Parks‘s brother, Ernest, and Ernest‘s girlfriend, Crystal; Heidi‘s friend, Reggie; and S.L., who had been dating K.H. for about a year. Id. at 326-327 and 597-598. S.L. arrived at the club
{¶ 18} Parks and the rest of the group returned to Parks‘s house on Valencia Street in Riverside on the east side of Dayton, which was around 18 to 20 minutes away from Ernest‘s home. They decided to go out again, so Ernest drove to Parks‘s house. Crystal did not want to go, so she stayed at home. Id. at 327, 328, 599, 600, and 792. All five members of the remaining group intended to go out, but Heidi and Parks had some sort of dispute, so he stayed home. According to Ernest, Parks had been drinking and was a bit more agitated and aggressive than normal. Id. at 328, 602-603, and 605. Ernest, Heidi, S.L., and Reggie left in Ernest‘s Black Tahoe and went to Deja Brew, which was about a half-mile away. They did not stay long and then went to a place called Jay and Jean‘s in Huber Heights, which was about 20 minutes away. They stayed there until closing, which was around 2:00 to 2:30 a.m. Id. at 606 and 607-608.
{¶ 19} Before they left the bar, S.L. was receiving communications from K.H., and her mood changed. She wanted to leave, so they left. The bar was closing anyway. Tr. at 608-609. On the way home, Ernest was driving, and S.L. was sitting in the front passenger seat. When they arrived back at Parks‘s house, K.H. was parked out front; Ernest parked his car in the neighbor‘s driveway, because Parks lived in a double and two cars were on Parks‘s side. Id. at 320, 609, and 611-612.
{¶ 20} After Ernest parked, K.H. got out of his own car, opened the passenger side
{¶ 21} On July 3, 2021, D.M. and his girlfriend lived in the other side of the duplex where Parks and Heidi lived. That evening, D.M. was sitting outside in his front yard listening to music and saw K.H. pull up and park his car. D.M. knew K.H. but did not know Parks‘s brother, Ernest. K.H. did not get out of his car. D.M. then went to his backyard and was talking to his girlfriend when he heard Parks outside talking wildly and getting wilder and wilder, like he was arguing with someone. D.M. heard two male voices; Parks‘s tone was angry and his volume was loud. Id. at 347, 348, and 357.
{¶ 22} At the same time, another neighbor, K.C. was at her caretaker‘s house, which was across the street from Parks‘s house. K.C. had lived on Valencia Street for seven years, just down the street. She knew Parks, Heidi, K.H., and Ernest, but had seen Ernest more often because he was friends with someone she knew. K.C. also
{¶ 23} K.C. was sitting by the front door of her caretaker‘s house when her attention was drawn by arguing. She heard male and female voices. K.C. saw Parks and two other males outside. She also saw Heidi and another taller, brown-haired girl. K.C. knew Parks, Heidi, and K.H., and she could identify their voices Id. at 245 and 248-249. At that time, K.H.‘s voice was mad and loud, Heidi‘s voice was angry and almost loud, and Parks‘s tone was very angry. His volume was loud. She heard K.H. say, “I told you, mother effer.” Id. at 250. She next heard pushing; K.H., Parks, and Heidi were pushing. K.C. then saw Parks pull out a gun and shoot K.H. in the face. After Parks shot K.H., he was standing over K.H. saying, “I told you. I told you.” K.C. did not call the police because she was scared. Id. at 251 and 257-259.
{¶ 24} During the same time frame, D.M. went upstairs and looked out the bedroom window. He could hear Parks arguing. Parks was getting louder and louder. D.M. went downstairs and still heard them arguing. He then went back upstairs, and he and his daughter were looking out the window. D.M. heard Heidi say, “No, Dana,” in a loud voice and heard a gunshot. At that point, D.M. saw Parks walk up the street holding a gun in his hand, down by his side. Parks came right back and threw the gun into a black SUV that was parked in front by the mailbox. Id. at 360-361.
{¶ 25} According to Ernest, after their initial confrontation, he and K.H. went inside and then K.H. wanted to go back outside. After they went out, they continued to argue.
{¶ 26} K.C. (the witness across the street) testified that, after K.H. was shot, Parks and Ernest picked up the body and put it in a deep maroon car. She could not tell if they put it in the trunk or the back of the car, as both doors were open. She saw headlights, and the car was leaving. Id. at 252-253. Ernest also testified that they put K.H. in the back of K.H.‘s car, pulled around the corner, and parked the car in the back of some apartments. One of them drove the car and the other followed in a black car (apparently Ernest‘s black Tahoe). They then came back to Park‘s house and all talked about getting rid of the evidence. The blood needed to be cleaned up, and Parks also had a door camera. Id. at 626-628. At that point, Ernest drove home and returned with another vehicle, a white pickup truck.
{¶ 27} According to forensic cell phone evidence, the cell phones of K.H., Parks, and Ernest were all in the vicinity of Valencia Street between 3:04 a.m. and 3:06 a.m. on July 4. The last outgoing user input from K.H.‘s phone was at 3:00 a.m. Id. at 747, 757-762, and 774. Between 3:41 a.m. and 3:58 a.m., Ernest‘s cell phone moved from the Valencia area to Military Blvd. Around 4:30 a.m., his cell phone was no longer at Military, and there were no more records for that phone until 6:54 a.m. Id. at 762-768.
{¶ 29} When Ernest got back to Parks‘s home, the doorbell camera was gone. Id. at 632. They discussed the fact that K.H.‘s car was too close to the house, so they went to get it. Ernest then drove the car with the body in it, and Parks drove the white truck. They did not have a plan where to go, but once Ernest began driving, he figured out where he was going to go. He had previously lived in an area in Greenwich Village (an area on the west side of Dayton) that he knew had all-terrain vehicle (ATV) trails, so they drove there. Parks waited on the street while Ernest drove down a ravine into a wooded area. Id. at 634-635.
{¶ 30} At that point, Ernest expected Parks to wait because Parks did not know if Ernest was going to walk out on foot or drive the car out. When Ernest got down to the woods, he pulled K.H. out of the car and laid him down. K.H.‘s identification and cell phone fell out, so Ernest picked them up and placed them on the body. As Ernest was about to leave, he saw a gas can. He then sprinkled gas around the body and set it on fire to make sure his DNA was not on the body, and he recognized the possibility that the identification would burn, too. Parks and Ernest had not discussed getting rid of the
{¶ 31} Ernest took the gas can with him. He was able to get K.H.‘s car out of the ravine, and he and Parks then drove to Westside Auto Wreckers, a junkyard with which Ernest was familiar. Ernest parked the car in an alley next to the junkyard and used the gas to set it on fire. Parks was sitting there when Ernest set the car on fire and watched him do it. Ernest and Parks then left. Tr. at 641-643 and 683.
{¶ 32} On July 4, 2021, a teenager riding his father‘s ATV in the woods spotted a body at around 11:00 a.m. or 12:00 p.m., and the police were called. Id. at 392-395. Due to identification left at the scene, the police had an idea of who the victim was. They were able to obtain an address on Valencia (the house where Parks lived) by running a name found on a debit card near the body. They also found potential family and obtained information about where the family had last seen K.H. and about what vehicle he drove, which was a red Buick LaCrosse. At the time, the police had no idea that the murder had occurred at Parks‘s address, but they went there on July 4 to see if they could make contact with someone who knew K.H. The police spoke to Parks the day the body was discovered. At that time, Parks said K.H. had been down the street from his house the night before around 2:30 or 3:00 a.m. and had gotten into an argument with S.L., who ran off on foot. He further said that K.H. took off after S.L. in his car and that was the last time he had seen or heard from him. When the police told Parks they had found a body that was possibly K.H., Parks began crying and yelling and punched a tree. Id. at 423, 792-796, and 842.
{¶ 34} As noted, the trial court granted Parks‘s motion for acquittal of charges of abusing a corpse and the related arson because there was no evidence that Parks knew Ernest intended to set the victim‘s body on fire; thus, there was no evidence that Parks aided and abetted in those crimes. Tr. at 879-880. However, the court rejected the acquittal motion on the attempted arson charge related to K.H.‘s car.
{¶ 35} In discussing these matters, the court referred to the complicity statute. Id. at 879. The court also instructed the jury that to be guilty of a crime, an individual may be the principal offender or may have “aided or abetted one or more individuals in committing an offense or offenses knowing that he was facilitating the offense charged in
{¶ 36} The court further told the jury that: “An aider or abettor is a person who knowingly aids, helps, assists, encourages, or directs himself with another person or persons to commit an offense. An aider or abettor is regarded as if he were the principal offender and is just as guilty as if he personally performed every act constituting the offenses.” Id. at 932. This was consistent with the definition of aiding and abetting used by the Supreme Court of Ohio. E.g., State v. Johnson, 93 Ohio St.3d 240, 243 (2001).
{¶ 37} During the jury instructions and, in particular with reference to the attempted arson charge, the trial court also said: “The State argues that the act or failure to act of the Defendant caused or created a substantial risk of physical harm to property. Cause is an essential element of the offense. Cause is an act or failure to act, which in a natural and continuous sequence, directly produces the physical harm to property, and without which it would not have occurred.” Tr. at 959.
{¶ 38} In arguing that insufficient evidence of his complicity existed, Parks notes that he was merely present at the scene of the car fire. Parks Brief, p. 5. In Johnson, the court noted that ” ‘the mere presence of an accused at the scene of a crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor.’ ” Johnson at 243, quoting State v. Widner, 69 Ohio St.2d 267, 269 (1982). However, the court
{¶ 39} From the moment the murder occurred, Parks‘s focus was to conceal and destroy all evidence that could connect him to the crime. He was not present at the junkyard as an innocent bystander. Parks followed Ernest to the junkyard and watched while Ernest set the fire. He could have acted to stop it but did not do so. This situation was quite different from what occurred at the scene where the body was burned, as there was no evidence that Parks knew about or saw anything connected with that fire. In fact, that would not have been possible, since Ernest testified that he used a gas can he found in the woods.
{¶ 40} Parks‘s second point under this assignment of error is that the finding about the value of K.H.‘s vehicle was unsupported by the evidence because the only evidence of value came from Detective House, who was not an automobile expert. As noted, the crime‘s degree was elevated from a misdemeanor to a felony because the car‘s value was found to be more than $1,000. See
{¶ 41} Under
{¶ 42} In this vein, the statute provides three sets of criteria. The first, in
{¶ 43} Detective House testified that K.H.‘s vehicle was a 2014 Buick LaCrosse four-door sedan that appeared to be in “good operable condition” other than the burn damage. House further stated that the vehicle‘s value was “significantly more” than $1,000. Id. at 821. There was no question that the vehicle was operable, even though it was missing a battery, because Ernest had driven it to the junkyard only a few days before it was found. There was also no evidence that the vehicle could not be substantially restored to its former condition. As a result,
{¶ 44} In arguing that it provided sufficient evidence, the State cites State v. Williams, 2006-Ohio-4653 (2d Dist.). State‘s Brief, p. 16. According to the State, the
{¶ 45} In Williams, we found that photographs of a vehicle could reasonably let the jury find that its damage “would require a substantial amount of money to repair.” Id. at ¶ 24. We subsequently distinguished Williams, noting that the jury could find from the photographs alone in Williams that the damage was more than $500. However, in the case then before us, “a reasonable finder of fact, based solely upon these photographs, would not be warranted in finding, beyond reasonable doubt, that the cost of repairing the damage depicted therein equals or exceeds $500.” State v. Hunter, 2007-Ohio-5370, ¶ 14 (2d Dist.). In contrast, in a case the State has also cited, the Eighth District Court of Appeals found, based on testimony and photos, “that rational jurors could determine from these photos that the cost to repair the vehicle was $1,000 or more.” State v. Stubbs, 2024-Ohio-839, ¶ 40 (8th Dist.), citing Williams at ¶ 24.
{¶ 46} Here, the jury could reasonably have found that more than $1,000 in damage occurred. There was no apparent damage to the vehicle before the murder. When the vehicle was found, there was a large amount of soot inside the interior. Tr. at 472-475, 480, and 821. Furthermore, while there was smoke damage to the car which might have been possible to clean, the back seat had also been set on fire. A reasonable inference was that the seat would have to be replaced. Under the circumstances, the
{¶ 47} Based on the preceding discussion, the first assignment of error has no merit and is overruled.
III. Admission of Photographs
{¶ 48} Parks‘s second assignment of error states that:
The Trial Court Plainly Erred When It Allowed the Jury to Review Gruesome and Duplicative Photographs from the Autopsy and Crime Scene.
{¶ 49} Under this assignment of error, Parks argues that, because the cause of death was not in reasonable dispute, the trial court erred in allowing the jury to see gruesome photos of the crime scene and autopsy that had no connection to K.H.‘s death. Parks also contends that even if the autopsy photos were appropriate, they were cumulative and identical to photos from the crime scene.
{¶ 50} “Under
{¶ 51} Notably, failure to object at trial to exhibits, including photographs, forfeits
{¶ 52} “Under the plain-error doctrine, intervention by a reviewing court is warranted only under exceptional circumstances to prevent injustice.” State v. Bailey, 2022-Ohio-4407, ¶ 8, citing State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. To prevail under this doctrine, a defendant must show ” ‘an error, i.e., a deviation from a legal rule’ that constitutes ‘an “obvious” defect in the trial proceedings.’ ” Rogers at ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002). However, “even if the error is obvious, it must have affected substantial rights,” meaning that the defendant “is therefore required to demonstrate a reasonable probability that the error resulted in prejudice – the same deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis in original.) Id., citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83 (2004).
{¶ 53} Furthermore, “even if an accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it“; instead, the Supreme Court of Ohio has admonished ” ‘courts to notice plain error “with the utmost caution, under exceptional circumstances and only to prevent a manifest
{¶ 54} Even if we found an obvious error (which we do not), there would be no reasonable probability that it affected the outcome of the trial court proceedings. The evidence against Parks was overwhelming. Not only did Parks‘s brother implicate him, one neighbor saw him shoot the victim and another saw him walking from the scene with a gun in his hand. Furthermore, Parks does not suggest how the outcome of the proceedings would have been different, other than suggesting the photos served no purpose other than to inflame the jury. Parks‘s Brief at p. 8-9.
{¶ 55} As the State notes, the coroner who testified stated that the autopsy photos and x-rays (Ex. 11-20) would assist in his testimony. Tr. at 288. Furthermore, the murder was not the only crime involved; the State also had to prove that the victim‘s body had been burned and how that occurred. The photos at the crime scene aided in establishing these facts. In addition, our review of the transcript (as well as the photographs in question) reveals no evidence that the jury was inflamed. Certainly, viewing photos of murder victims was unpleasant. However, the jury actually indicated at one point during deliberations that it was deadlocked on four of the eight counts. Tr. at 974. Had the jury been inflamed or acting out of passion, such a deadlock would have been unlikely.
{¶ 56} In any event, for the reasons stated, this case does not present the type of exceptional circumstances warranting reversal based on a manifest miscarriage of justice. As we said, the evidence against Parks was overwhelming. Accordingly, the second assignment of error is overruled.
IV. Ineffective Assistance of Counsel
{¶ 57} Parks‘s third assignment of error states that:
Parks’ Defense Was Prejudiced by Ineffective Assistance of Counsel for Failure to Move for a Mistrial.
{¶ 58} Under this assignment of error, Parks contends that trial counsel acted ineffectively by failing to ask for a mistrial when a juror reported that she and “another juror heard a bystander try to influence them to find Parks guilty.” Parks‘s Brief at p. 9.
{¶ 59} Allegations of ineffective assistance of trial counsel are reviewed “under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984), which was adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136 (1989).” State v. Gillilan, 2024-Ohio-4603, ¶ 51 (2d Dist.). “To establish ineffective assistance, [a defendant] must show (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 proceeding‘s result would have been different.” State v. Hale, 2008-Ohio-3426, ¶ 204, citing Strickland at 687-688 and Bradley at 136, paragraph two of the syllabus. Having reviewed the record, we find no deficient performance by counsel nor any reasonable probability that but for the alleged error, the trial outcome would have been different.
{¶ 60} On the third day of trial, a juror reported that on the prior evening, she may have come in contact with persons who were spectators in the courtroom. Tr. at 725.
The Court: Okay. But these people appeared to have some knowledge about this trial? There — is there —
[Juror]: Well, we didn‘t speak. At some point, I heard them speaking, and it was, I believe, directly related to this trial.
. . .
The Court: Okay. You — can you tell us what they said?
[Juror]: I heard one word. It was “guilty.”
The Court: All right. Okay. And can you lay out [for] me — how far out were these people?
[Juror]: Okay. Looking at this parking lot — I think this is our parking lot?
. . .
The Court: The normal juror parking lot at —
. . .
The Court: East lot where you would have parked.
[Juror]: Okay. Right there. Those things with the yellow tips. I was parked kind of beyond that to the right — right hand side. . . .
. . .
[Juror]: And . . . I came through the little gate, and I was kind of walking almost directly straight, kind of back to that. And most of the jurors were kind of heading right to me. And there was people standing next to maybe that last little pole there with the yellow top, two females were standing there.
. . .
The Court: . . . So maybe they were . . . about 50 yards from you, would you say?
. . .
The Court: — they weren‘t really close?
[Juror]: Not at that time, no —
. . .
. . . So I got to my car, I was on the passenger side putting things into my car.
. . . And I didn‘t hear anything around me. I know there were a couple of male jurors behind me kind of talking and chattering.
. . .
[Juror]: And so I was putting my stuff in my car. And at that point, before I put my head up, after putting things into my car, that‘s when I heard a female voice — it felt like it was directed towards me — saying “guilty.” I don‘t know if there were words said before that or after that.
. . .
But I didn‘t hear them say anything before or after that but I did hear that word.
. . .
[Juror]: And that‘s all that it occurred. I looked at them because I put my head up, like, I was shocked to hear that being —
. . .
[Juror]: said.
Tr. at 725-728.
{¶ 61} After hearing this comment, the juror got into her car and left. Id. at 729. During the voir dire, the juror also said she could put this matter out of her mind and decide the case based on what occurring during the courtroom. Id. at 730.
{¶ 62} The trial court then allowed both counsel to speak to the juror. During the prosecutor‘s questioning, the juror stated she did not know the comment was directed to her and did not know if she could recognize the persons’ faces. Id. at 731-732. The prosecutor also told the juror that additional security would be walking the jurors out; the juror responded that this would help alleviate concerns. Id. at 732. In response to defense counsel‘s questions, the juror said she did not think she was in any physical danger and again stressed that she could base deliberations only on what was presented in the courtroom. Id. at 732-733. The juror further told the court that she wanted to continue to serve and felt she could do her job as a juror. Id. at 733.
{¶ 63} Contrary to Parks‘s contention, there was no evidence that another juror
{¶ 64} “The Sixth Amendment guarantees a defendant the right to trial by an impartial jury.” United States v. Lanier, 988 F.3d 284, 294 (6th Cir. 2021). “When a trial court learns of an improper outside communication with a juror, it must hold a hearing to determine whether the communication biased the juror.” State v. Phillips, 74 Ohio St.3d 72, 88 (1995), citing Smith v. Phillips, 455 U.S. 209, 215-216 (1982), and Remmer v. United States, 347 U.S. 227, 229-230 (1954). The trial court complied here by questioning the juror about the communication and letting counsel participate.
{¶ 65} Trial courts also have broad discretion in deciding if a mistrial is warranted, and “the complaining party must show actual prejudice . . . , i.e., he must show that the communication biased one or more jurors.” State v. Herring, 94 Ohio St.3d 246, 259 (2002), citing
{¶ 66} The juror here said she was able to continue to be impartial and would base her decision only on what was presented in the courtroom. “A trial court may rely upon a juror‘s testimony as a basis for finding that her impartiality was not affected.” Herring at 259, citing Smith at 217, fn. 7, and Zelinka, 862 F.2d at 95-96.
{¶ 67} Furthermore, “‘[m]istrials need be declared only when the ends of justice so require and a fair trial is no longer possible.‘” State v. Knuff, 2024-Ohio-902, ¶ 150, quoting State v. Franklin, 62 Ohio St.3d 118, 127 (1991). As an example, the Supreme Court of Ohio found in Franklin that a mistrial was not warranted where the trial court made an improper remark during a death-penalty hearing. This was based on the court‘s later explanation of its remarks and a curative instruction. Franklin at 127-128. In Knuff, the court also found an isolated and unclear reference to a polygraph test, while prohibited, was not grounds for a mistrial. Knuff at ¶¶ 149-155. The Supreme Court of Ohio has also affirmed denial of a mistrial where a state witness improperly mentioned the defendant‘s prior conviction in front of the jury. The court found no likelihood of prejudice based on overwhelming evidence of the defendant‘s guilt. State v. Trimble, 2009-Ohio-2961, ¶¶ 147-175.
{¶ 68} In the case before us, the trial court followed proper procedures, and there
V. Restitution Order
{¶ 69} Parks‘s fourth assignment of error states that:
The Trial Court‘s Sentence Ordering Parks to Pay Restitution Is Contrary to Law.
{¶ 70} Under this assignment of error, Parks contends that the restitution order was contrary to law because the trial court did not indicate that it considered his present or future ability to pay. During the sentencing hearing, the court ordered Parks to pay $2,220 to the victim‘s father for funeral expenses. Tr. at 990 and 1003. The court noted during the hearing that it had reviewed the presentence investigation (“PSI“) report and had reviewed materials supporting restitution. Id. at 988-989. When the court imposed restitution, it did not make any specific findings concerning Parks‘s ability to pay. However, Parks did not object.
{¶ 71} Subsequently, the court filed an amended judgment entry ordering payment of $2,220 in restitution to the victim‘s father or the fiduciary of his estate, if the father were deceased. Amended Termination Entry (Feb. 16, 2024), p. 3. Again, the court did not make any specific findings about Parks‘s ability to pay.
{¶ 72} Because Parks failed to object in the trial court, we review this assignment of error only for plain error. “A defendant who does not dispute an amount of restitution,
{¶ 73} Before a trial court imposes a financial sanction under
{¶ 74} “While it might be preferable, a trial court is not required to expressly state that it considered Defendant‘s ability to pay a fine.” State v. Parker, 2004-Ohio-1313, ¶ 42 (2d Dist.), citing State v. Slater, 2002-Ohio-5343 (4th Dist.). “The court‘s consideration of that issue may be inferred from the record under appropriate circumstances.” Id. For example, a “court may comply with its obligation by considering a presentence investigation report . . . which includes information about the defendant‘s age, health, education, and work history.” (Citation omitted.) State v. Willis, 2012-Ohio-294, ¶ 4 (2d Dist.). Accord State v. Kirchgessner, 2022-Ohio-3944, ¶ 36 (2d Dist.); State v. Moore, 2019-Ohio-4806, ¶ 22 (2d Dist.).
{¶ 75} The PSI report indicated that the victim‘s family had requested $2,200 for
{¶ 76} Specifically, while Parks was not employed at the time of sentencing (because he had been in jail), his motion for bond review stated that he had been employed at Energizer at the time of his arrest and that he was the main financial provider for his family. See Motion for Bond Reduction (September 13, 2022), p. 2. Another motion for bond reduction filed in February 2023 claimed that if Parks were released, he had a job waiting at the Energizer Factory in Dayton. Motion for Reduction of Bond (Feb. 22, 2023), p. 1. Although the court did not grant the bond motions, it was aware that Parks was able to work.
{¶ 77} It is true that Parks‘s sentence was long, but he received nearly two years of jail credit and would be around 62 years old if released at the end of the minimum 23-year term. We have held that “[a] lengthy prison sentence does not necessarily preclude the imposition of financial sanctions.” State v. Harwell, 2015-Ohio-2966, ¶ 69, quoting State v. Western, 2015-Ohio-627, ¶ 57 (2d Dist.). Here, the restitution amount was minimal, and we find no exceptional circumstances that would warrant finding a manifest miscarriage of justice. Accordingly, the fourth assignment of error is overruled.
VI. Double Jeopardy
R.C. 2929.14(B)(1)(g) Violates the Double Jeopardy Protections Provided for in the U.S. and Ohio Constitutions.
{¶ 79} Parks argues that his sentence is contrary to law because the trial court imposed a sentence from a firearm specification on a merged charge consecutively to a definite term of incarceration. According to Parks, this violated the double jeopardy protection against imposition of multiple punishments for the same offense.
{¶ 80} The relevant facts are as follows. At sentencing, the trial court merged Counts One through Four, and the State elected to have Parks sentenced on Count One. Tr. at 993-994. The indictment alleged in Count One that Parks had caused K.H.‘s death as a proximate result of committing or attempting to commit an offense of violence, i.e., felonious assault (deadly weapon), in violation of
{¶ 81} At the sentencing hearing, the court imposed a 15-year to life sentence on Count One and a three-year sentence for the firearm specification attached to that count, to be served prior to and consecutive to the 15-year term. Tr. at 1001. The court also imposed a three-year sentence for the firearm specification in Count II, even though that count had been merged, and ordered the three-year term to run prior to and consecutive
{¶ 82} Parks concedes that under Bollar, the Supreme Court of Ohio interpreted
{¶ 83} “Among the protections of the Fifth Amendment to the United States Constitution is that no person ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ The Ohio Constitution contains a similarly worded guarantee: ‘No person shall be twice put in jeopardy for the same offense.’ Ohio Constitution, Article I, Section 10.” City of Girard v. Giordano, 2018-Ohio-5024, ¶ 6. The Supreme Court of Ohio reads “the double-jeopardy provisions as protecting against three distinct wrongs: ‘(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.‘” Id. at ¶ 8, quoting State v. Gustafson, 76 Ohio St.3d 425, 432 (1996). The case before us involves the third wrong, i.e., whether Parks was improperly subjected to multiple punishments for the same offense.
{¶ 84} When Parks was sentenced,
If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.
{¶ 85} As indicated, Count Two of the indictment charged Parks with a firearm specification in violation of
{¶ 86} Our court has not yet considered Bollar, which was decided in 2022. In that case, the Supreme Court of Ohio certified a conflict among districts and asked the parties to address this question:
Whether Ohio‘s legislature has specifically authorized cumulative punishments for multiple firearm specifications that were committed as part of the same act or transaction under the narrowly tailored, specifically designated circumstances set forth in
R.C. 2929.14(B)(1)(g) , when the underlying felonies attendant to the firearm specifications are merged at sentencing as allied offenses of similar import pursuant toR.C. 2941.25 .
Bollar, 2022-Ohio-4370, at ¶ 7, quoting State v. Bollar, 2021-Ohio-2795.
{¶ 87} In addressing this question, the court reached several conclusions. First, the court found that
{¶ 88} The court noted that Whitfield had defined “conviction” for purposes of
{¶ 89} To resolve this “tension,” the court clarified that Whitfield‘s definition does not apply to
{¶ 90} The court also briefly addressed double jeopardy, stating that:
In requiring that offenders like Bollar be subject to separate prison terms for multiple firearm specifications, the General Assembly appears to have acknowledged that the use of firearms in certain violent crimes should carry a hefty penalty. As the Fifth District acknowledged below, double-jeopardy protections are not violated when the legislature specifically authorizes cumulative punishment. . . . Thus, while one could argue that common sense dictates that an offender should not be sentenced on a specification when the offender has not been sentenced on the underlying criminal offense, the General Assembly exercised its discretion in requiring that the sentence include separate prison terms for multiple specifications. This court defers to that legislative choice. If the General Assembly determines
that this should no longer be the law in Ohio, the legislature may use its discretion to amend R.C. 2929.14(B)(1)(g) to require a different approach.
Bollar, 2022-Ohio-4370, at ¶ 20, citing Bollar, 2021-Ohio-1578, ¶ 25 (5th Dist.).
{¶ 91} Finally, the Supreme Court of Ohio found that
{¶ 92} Although the Supreme Court of Ohio mentioned double jeopardy only briefly, the Fifth District‘s discussion was more detailed. The court of appeals remarked that: “Both the Fifth Amendment to the United States Constitution and Section 10, Article I, Ohio Constitution, guard against successive prosecutions. Both provisions also guard against cumulative punishments for the same offense.
{¶ 93} The Fifth District went on to stress that: “‘With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.‘” Id. at ¶ 24, quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983). Thus, because the Ohio legislature had authorized multiple punishments in “narrowly tailored, specifically designated circumstances set forth in
{¶ 95} The Supreme Court of Ohio clearly considered the effect of double jeopardy in Bollar and found it did not preclude multiple punishments as set out in
{¶ 96} Based on the preceding discussion, the fifth assignment of error is overruled.
VII. Admission of Evidence
{¶ 97} Parks‘s sixth assignment of error states that:
The Trial Court Erred When It Allowed Evidence of an Old Casing
Found in Parks’ Backyard and Box of Bullets Found in a Neighbor‘s Yard into Evidence.
{¶ 98} Parks contends the trial court erred in admitting evidence of a .40 caliber bullet casing into evidence because the casing was found on the handrail of Parks‘s back deck, was weathered, and could not have been from the bullet that killed K.H. because the shooting occurred in front of the home. In addition, Parks argues that the court improperly admitted evidence of a box of bullets found on a neighbor‘s roof.
{¶ 99} Because trial courts have broad discretion in admitting evidence, we review evidentiary decisions for abuse of discretion. State v. Morris, 2012-Ohio-2407, ¶ 14. An abuse of discretion “has been described as including a ruling that lacks a ‘sound reasoning process.‘” Id., quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990).4 This type of review is deferential, and “[i]t is not sufficient for an appellate court to determine that a trial court abused its discretion simply because the appellate court might not have reached the same conclusion or is, itself, less persuaded by the trial court‘s reasoning process than by the countervailing arguments.” Id.
{¶ 100} As noted, Parks filed a motion in limine prior to trial seeking to exclude evidence about a .40 caliber bullet casing that had been found on the rear porch of his residence, and the court overruled the motion during trial. After the State rested, Parks
{¶ 101} The casing was discovered and collected during a search of Parks‘s home on July 8, 2021. Id. at 555-556 and 809-810. The casing‘s headstamp bore the initials “R-P” (which is the brand stamping for Remington) and “40 S&W” (which stands for Smith & Wesson). Id. at 491, 558-559 and 818. When the casing was collected, the police did not yet know that the bullet recovered from K.H.‘s body was a .40 caliber. The police did not send the casing for testing as it was weathered. Det. House indicated that if the casing were connected to the crime, it had been exposed to the elements for some time, and it would not have gotten to the back porch by being fired in front of the house; someone would had to have picked up the casing and moved it. Id. at 817-818.
{¶ 102} Regarding the box of bullets, L.W., who also lived on Valencia, testified that around 3:00 a.m. on July 4, 2021, she was awakened by loud music that her neighbor, D.M., was playing. As a result, L.W. went to D.M.‘s house and asked him to turn down the music, which he ultimately did. No one else was outside. L.W. then walked back to her house. She did not see a bag on her roof at that time. L.W. went back to sleep and was awakened around 4:00 a.m. by Parks‘s knocking on her door. At some later point, L.W. saw what looked like trash on top of her roof. Id. at 412-417 and 420.
{¶ 103} On July 9, 2021, L.W. called the Riverside police to report that she had found a bag on her garage roof and it contained ammunition. An officer responded and recovered the bag, which contained a box of Remington UMC pistol revolver cartridges.
{¶ 104} The bullet removed from the victim‘s body was consistent with a .40 caliber bullet. Id. at 299 and 494-495. At trial, the State argued that the .40 caliber casing found on the porch was highly relevant because of the efforts to clean up the scene and because an expert had identified the bullet found in K.H.‘s body as a bullet of that caliber. The casing thus linked the house where Parks was living with that type of bullet. The trial court agreed and overruled the motion in limine. Id. at 502-503.
{¶ 105} Parks did not object during testimony about the box of bullets but did object to admission of that exhibit at the close of the State‘s case. The State asserted that this evidence was relevant to the charge of tampering with evidence, and the court admitted the exhibit. Id. at 871.
{¶ 106} In view of the above facts, we find no abuse of discretion in admission of evidence pertaining to the bullet casing on the back porch or the box of bullets. Count Five of the Indictment charged Parks with tampering with evidence from Valencia, in violation of
{¶ 107} After shooting K.H., Parks attempted to dispose of any evidence that would
{¶ 108} Parks also argues that there was no evidence, beyond circumstantial, that he placed the ammunition on L.W.‘s roof. That is incorrect, as Ernest testified that Parks told him that he threw the bag containing bullets on D.W.‘s roof and had to get them before the police came. Tr. at 647. Consequently, there was direct evidence, and finding the bag of bullets on the roof also corroborated Ernest‘s testimony. Furthermore, the Supreme Court of Ohio has stressed that “[c]ircumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence.” Jenks, 61 Ohio St.3d at 272. Accord State v. Martin, 2017-Ohio-7556, ¶ 112.
{¶ 109} Based on the preceding discussion, the sixth assignment of error is overruled.
VIII. Conclusion
{¶ 110} All of Parks‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
. . . . . . . . . . . .
TUCKER, J. and LEWIS, J., concur.