STATE OF OHIO, Plaintiff-Appellee, v. MICHAEL PRESTON, Defendant-Appellant.
No. 109572
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
RELEASED AND JOURNALIZED: July 1, 2021
[Cite as State v. Preston, 2021-Ohio-2278.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-634913-A
JUDGMENT: AFFIRMED
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristin M. Karkutt, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
EILEEN T. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Michael Preston (“Preston”), appeals from his convictions and sentence. He raises the following assignments of error for review:
- The trial court erred when it denied appellant’s motion for acquittal under
Crim.R. 29 because the state failed to present sufficient evidenceto establish beyond a reasonable doubt the elements necessary to support the convictions. - Appellant’s convictions are against the manifest weight of the evidence.
- The trial court erred by denying appellant’s request for the lesser-included offense jury instruction on Count 4.
- The trial court erred by admitting exhibits over defense [counsel’s] objection and in violation of
Evid.R. 410 ,402 , and403 and theFifth ,Sixth , andFourteenth Amendments to the United States Constitution . - Appellant was deprived of a fair trial and due process when a detective improperly commented on the credibility of the pretrial identification.
- Appellant’s sentence is contrary to law because the record does not support the imposition of consecutive sentences.
{¶ 2} After careful review of the record and relevant case law, we affirm Preston’s convictions and sentence.
I. Procedural and Factual History
{¶ 3} In December 2018, Preston was named in a six-count indictment, charging him with aggravated murder in violation of
{¶ 4} On November 15, 2018, Jesus Omar Cruz Maldonado (“Jesus”) and his wife, Lesley Cruz DeJesus (“Lesley”), drove to their local church with their children,
{¶ 5} Jesus testified that when he confronted Preston in the front seat, Preston was attempting to start the vehicle with a screwdriver. During the altercation, Lesley was standing behind Jesus and was trying to get him out of the vehicle in order to avoid a dangerous situation. Within seconds, however, Preston successfully started the vehicle and began driving in reverse. Jesus testified that he managed to hold on to the seat while the vehicle traveled in reverse. However, Lesley was unable to hold on to the passenger’s-side door. Her body was dragged by the vehicle, leaving her unconscious on the ground. When Preston stopped driving in reverse, Jesus fell out of the vehicle and sustained injuries to his hands, legs, and feet. Preston then put the vehicle in drive and drove over Lesley’s body while fleeing the scene. Jesus explained that his wife’s body was not blocking the parking lot exit and that there was room for the vehicle to pass by without hitting her. The force of the vehicle caused Lesley to die within seconds.
{¶ 7} Officer Trevor Majid (“Officer Majid”) of the Cleveland Police Department testified that he received the broadcasted description while patrolling the area where the suspects were last seen. Within 15 minutes of the incident, Officer Majid observed a male matching one of the suspect’s description. The male, later identified as Devontae Smith (“Smith”), was walking northbound on a roadway located approximately one block south of the church parking lot. He was detained and transported to the homicide unit for further questioning.
{¶ 8} Similarly, Officer Joseph Maund (“Officer Maund”) of the Cleveland Police Department testified that he was patrolling the area when he observed a male matching one of the suspect’s description. The male, later identified as Kason Robertson (“Robertson”), attempted to flee on foot before he was apprehended in a backyard that was located approximately one quarter mile from the church parking lot. Robertson, who attempted to discard a firearm as he fled, was arrested within minutes of the incident.
{¶ 9} Detective Troy Edge (“Det. Edge”) of the Cleveland Police Department testified that he was assigned to document the crime scene. In the course of his investigation, Det. Edge photographed and collected items of evidentiary value that
{¶ 10} Detective Arthur Echols (“Det. Echols”) of the Cleveland Police Department, Homicide Unit, testified that he and his partner, Detective Morris Bruce Vowell (“Det. Vowell”), were assigned to investigate Lesley’s death. Det. Echols explained that in the course of the investigation, the homicide detectives “received investigational leads that [identified] Preston as a very strong person of interest.” (Tr. 1024.) As a result of this information, Det. Echols created a computer-generated photo array using a law enforcement database. The photo array contained photographs of six men, including Preston, who shared similar physical features and characteristics.
{¶ 11} On November 24, 2018, Det. Echols and a uniformed officer, who was intended to serve as a blind administrator, presented the photo array to Jesus for identification purposes. Upon arriving at the residence where Jesus was staying, however, Det. Echols encountered language barriers that required Jesus’s family member to serve as a translator. Thereafter, Jesus identified Preston, marked No. 4, as the assailant in the driver’s seat of his vehicle. He also identified a second individual, A.B., as the individual he removed from the passenger’s seat of his vehicle. Det. Echols confirmed that his department had no investigational leads to tie A.B. to the crime. Based on Jesus’s photo identification and the investigational
{¶ 12} At trial, Jesus reiterated that the person depicted in photograph No. 4 of the photo array was the person he encountered in the driver’s side of his vehicle and the person who ran Lesley over with the vehicle while fleeing the scene. (Tr. 457.) Jesus further identified Preston in court as the assailant. When asked how he was able to recognize Preston, Jesus stated, “[b]ecause the day of the incident, I struggled with him. I saw him.” (Tr. 459.)
{¶ 13} During cross-examination, Det. Echols confirmed that Jesus did not conclusively identify Preston as the driver, but “merely stated that [Preston’s] photo looked the closest to the person that was driving the van that day.” (Tr. 1034.) Thus, Jesus did not express his level of confidence in his identification on the photo array sheet. Det. Echols further admitted that he remained in the room during the identification process and used Jesus’s family friend to translate the instructions for the administration of the photo array. Det. Echols, and not the uniformed officer, continued to provide Jesus instructions via the translator throughout the process. Although Det. Echols maintained that he complied with the statutory procedures for photo identifications, the trial court provided the jury with the following instruction regarding the reliability of the eyewitness identification:
Under Ohio law, all law enforcement agencies that conduct photo lineups must adopt specific procedures for conducting photo lineups that meet certain basic requirements.
In considering the surrounding circumstances under which a witness has identified the defendant in the photo lineup, you must consider whether the lineup procedures used met these requirements.
You may consider evidence of noncompliance with these requirements in determining the reliability of the eyewitness identification resulting from or related to this lineup.
These basic requirements include at a minimum the following:
Unless it was not practical, a blind or blinded administrator conducted the lineup.
If it was not practical for a blind or blinded administrator to conduct the lineup, the lineup administrator stated in writing the reason for that impracticability.
The lineup administrator made a written record that included all the following information:
All identification and non-identification results obtained during the lineup, signed by the eyewitness including the eyewitness’ confidence statements made immediately at the time of the identification.
The names of all persons present at the lineup.
The date and time of the lineup.
Any eyewitness identification of one or more fillers in the lineup, and the names of the lineup members, other relevant identifying information, and the sources of all photographs used in the lineup.
The blind administrator who conducted the lineup informed the eyewitness that the suspect may or may not have been in the lineup.
Photo lineup means the identification procedure in which an array of photographs, including a photograph of the suspected perpetrator of an offense and additional photographs of other persons not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the
eyewitness identifies the suspect as the perpetrator of the offense. Administrator is the person conducting the photo lineup.
Blind administrator or blinded administrator means an administrator who does not know the identity of the suspect.
(Tr. 1422-1425.) See
{¶ 14} Det. Vowell testified that he was assigned to investigate Lesley’s death. While assessing the crime scene, Det. Vowell learned that two individuals matching the suspects’ descriptions were detained by patrolling officers and transported to the homicide unit. Det. Vowell then returned to the homicide unit, where he interviewed Smith and Robertson and collected buccal swabs for DNA forensic testing. Ultimately, the decision was made to release Smith from custody. Robertson, however, was arrested and booked for carrying a concealed weapon. Subsequently, Det. Vowell assisted detectives in collecting evidence from the scene where Jesus’s family vehicle was abandoned. The evidence was sealed in separate envelopes and transported to the Cuyahoga County forensic lab. In addition, Det. Vowell submitted a buccal swab that was taken from Preston at the time of his arrest.
{¶ 15} Laura Evans (“Evans”), a forensic DNA analyst with the Cuyahoga County Medical Examiner’s Office, testified that she conducted an analysis of the DNA evidence obtained in this matter. Relevant to this appeal, Evans explained that her office uses a computer software program known as TrueAllele to analyze samples that contain mixtures of DNA. According to Evans, swabs taken from the surface of the screwdriver used to start Jesus’s vehicle revealed that it contained a
{¶ 16} Forensic pathologist and medical examiner, Dr. Dan Galita (“Dr. Galita”), of the Cuyahoga County Medical Examiner’s Office testified that he performed the autopsy of Lesley. Dr. Galita testified that Lesley sustained significant internal injuries as a result of the tremendous pressure applied to her chest and upper abdomen when the wheels of the vehicle passed over her body. Lesley’s ribs were crushed, causing her lungs to separate from their vascular connection with her heart and airway. She also sustained significant lacerations to her kidney and liver. Accordingly, Dr. Galita testified, to a reasonable degree of medical certainty, that Lesley’s cause of death was “blunt force injuries of head, trunk and extremities with skeletal, visceral and soft tissue injuries.” (Tr. 1008.) Furthermore, he stated that her manner of death was a homicide.
{¶ 18} On behalf of the defense, Preston’s girlfriend, Lydia John (“Lydia”), testified that on the day of the incident, she and Preston donated blood at the CSL Plasma bank located at West 25th Street in Cleveland, Ohio. Lydia explained that after she finished her shift as a nursing assistant, she met Preston at the plasma bank at approximately 3:45 p.m. Lydia testified that Preston rode his bicycle to the plasma bank and was already in the process of having his vitals checked at the time she had arrived to make her donation. According to Lydia, Preston finished his donation at approximately 6:30 p.m. Thereafter, Lydia and Preston stopped for dinner and were home by 8:00 p.m.
{¶ 19} Lydia’s mother, Jennifer John (“Jennifer”), testified that on the day of the incident she was with Preston in Lydia’s home after Lydia had left for work. Jennifer testified that Preston stayed inside the home until he left to meet Lydia at the plasma bank. Jennifer estimated that Preston left the home, on his bicycle, between 2:30 and 2:45 p.m.
{¶ 20} Sara Moss (“Moss”) is employed as a center manager at CSL Plasma. As reflected in state’s exhibit No. 222, CSL Plasma is located 1.1 miles from the church parking lot where Lesley was killed. Relevant to this case, Moss confirmed
{¶ 21} At the conclusion of trial, Preston was found guilty of reckless homicide, a lesser-included offense of the aggravated murder charged in Count 1 of the indictment; aggravated robbery as charged in Count 2 of the indictment; murder as charged in Count 3 of the indictment; felonious assault as charged in Count 4 of the indictment; and aggravated robbery as charged in Count 6 of the indictment. He was found not guilty of attempted aggravated murder as charged in Count 5 of the indictment.
{¶ 22} At sentencing, the trial court determined that Counts 1, 2, 3, and 4 were allied offenses of similar import. The state elected to proceed with sentencing on the murder offense, and the trial court imposed a prison sentence of 15 years to life. The prison term imposed on the murder offense was ordered to be served consecutively to an eight-year prison term imposed on the aggravated robbery offense charged in Count 6 of the indictment. Thus, Preston was sentenced to an aggregate prison term of 23 years to life.
{¶ 23} Preston now appeals from his conviction and sentence.
A. Sufficiency of the Evidence
{¶ 24} In his first assignment of error, Preston argues the trial court erred by denying his motion for acquittal pursuant to
{¶ 25}
{¶ 26} In challenging the sufficiency of the evidence supporting each of his convictions, Preston initially argues that there is insufficient evidence of identity. Preston reiterates his claims of innocence and contends that his convictions were
{¶ 27} “[I]dentity of the perpetrator is an essential element that must be proved beyond a reasonable doubt.” State v. Johnson, 9th Dist. Lorain No. 13CA010496, 2015-Ohio-1689, ¶ 13. As with any other element, “[t]he identity of a perpetrator may be established by the use of direct or circumstantial evidence.” State v. Deal, 8th Dist. Cuyahoga No. 92642, 2010-Ohio-153, ¶ 11, citing State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315; State v. Reed, 10th Dist. Franklin No. 08AP-20, 2008-Ohio-6082.
{¶ 28} Relevant to this appeal, this court has found that “even where discrepancies exist, eyewitness identification testimony alone is sufficient to support a conviction so long as a reasonable juror could find the eyewitness testimony to be credible.” State v. Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 52, citing State v. Bryson, 8th Dist. Cuyahoga No. 98298, 2013-Ohio-934. Similarly, DNA evidence identifying a defendant as a major contributor to the DNA profile found on an object linked to a crime is sufficient evidence to sustain a conviction. State v. Brown, 8th Dist. Cuyahoga No. 98881, 2013-Ohio-2690, ¶ 31, 35 (the evidence was sufficient where the defendant’s DNA profile was the major contributor to a sample collected from a shirt connected to the crime, notwithstanding the existence of unidentified minor contributors). See also State v. Martin, 11th Dist. Lake No. 2017-L-005, 2019-Ohio-22, ¶ 93, quoting State v. Eckard, 3d Dist. Marion No. 9-15-45, 2016-Ohio-5174, ¶ 33 (where the homeowner
{¶ 29} Viewing the evidence in a light most favorable to the prosecution, we conclude that a rational jury could have determined, beyond a reasonable doubt, that Preston was the perpetrator of the crimes committed against Jesus and Lesley. In this case, Jesus testified that he was able to observe the face of the person who was sitting in the driver’s seat of his vehicle. Jesus later identified Preston in a photo array as the person he observed in the driver’s seat of his vehicle on the day of the incident. Jesus also identified Preston in court as the person who perpetrated the crimes against himself and his wife, Lesley. When asked how he could be certain it was Preston in the driver’s seat of his vehicle, Jesus stated “because the day of the incident, I struggled with him. I saw him.” (Tr. 459.)
{¶ 30} In addition, Evans confirmed that Preston’s DNA matched DNA profiles obtained from the screwdriver, pry tool, and brick used during the commission of the crimes. Preston’s DNA was also discovered on various items located inside the vehicle, including a disposable lighter, the steering wheel, the gear shift, and the interior driver’s-side door handle. This evidence, introduced through expert testimony, was sufficient to identify Preston as the person who was in the driver’s seat of Jesus’s vehicle during the incident. Accordingly, we find the state presented sufficient evidence to satisfy the essential element of identity.
{¶ 32} Finally, Preston contends that the state failed to prove the necessary elements of felony murder, aggravated robbery, and felonious assault as charged in in Counts 2, 3, 4, and 6.
{¶ 33} As stated, Preston was convicted of felony murder in violation of
{¶ 34} In turn, Preston was also convicted of two counts of aggravated robbery in violation of
{¶ 35} Lastly, Preston was convicted of felonious assault in violation of
{¶ 36} To have acted “knowingly,” a person need not have specifically intended to cause a particular result. “A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature.”
{¶ 37} If a result is a probable consequence of a voluntary act, the actor “‘will be held to have acted knowingly to achieve it’” because a person “‘is charged by the
{¶ 38} “Serious physical harm,” as defined in
- Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
- Any physical harm that carries a substantial risk of death;
- Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
- Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
- Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
Loss of consciousness, “‘irrespective of its duration,’” has been found to constitute severe physical harm under
{¶ 39} On appeal, Preston asserts that although this was a “tragic incident,” the “facts do not reflect that [he] knowingly * * * tried to injure Lesley or Jesus.” We disagree. As previously discussed, the testimony and forensic evidence introduced at trial demonstrated that Preston was the individual attempting to start Jesus’s family vehicle with a screwdriver at the time he was confronted by Jesus and Lesley in a church parking lot. Preston did not have permission to obtain control of the
{¶ 40} Similarly, the record reflects that Lesley was dragged under the vehicle, causing her to fall to the ground. Thereafter, Preston put the vehicle in drive, turned the vehicle in the direction where Lesley was located, and “drove over” Lesley’s body as she lay unconscious on the pavement. (Tr. 428-433.) Jesus explained that Preston had room to exit the parking lot without striking his wife. As a proximate result of Preston’s conduct, Lesley died from blunt force trauma within “seconds.” A reasonable juror could conclude that Lesley’s serious physical harm and eventual death was a result within the natural and logical scope of risk created by the conduct of Preston. (Tr. 1003.)
{¶ 41} Viewing the foregoing evidence in a light most favorable to the state, we find any rational trier of fact could have found the essential elements of felony
{¶ 42} The first assignment of error is overruled.
B. Manifest Weight of the Evidence
{¶ 43} In his second assignment of error, Preston argues his convictions are against the manifest weight of the evidence.
{¶ 44} A manifest weight challenge questions whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, at ¶ 12. A reviewing court “‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “A conviction should be reversed as against the manifest weight of the evidence only in the most ‘exceptional case in which the evidence weighs heavily against the conviction.’” State v. Burks, 8th Dist. Cuyahoga No. 106639, 2018-Ohio-4777, ¶ 47, quoting Thompkins at 387.
{¶ 45} In challenging the weight of the evidence supporting his convictions, Preston contends that his alibi evidence “confirmed that he was not present at the church parking lot when the incident occurred.” With respect to the state’s evidence, Preston reiterates his position that Jesus’s pretrial identification was unreliable, stating:
Preston further suggests that the DNA testimony should be equally disregarded because the results were computer generated and were not manually verified by the forensic expert.
{¶ 46} Based on our review of the entire record in this case, weighing the strength and credibility of the evidence presented and the inferences to be reasonably drawn therefrom, we cannot say that the trier of fact lost its way and created such a manifest miscarriage of justice that Preston‘s convictions must be reversed.
{¶ 47} In this case, defense counsel thoroughly cross-examined the state witnesses regarding the reliability of the identification evidence and the TrueAllele computer program used to analyze DNA profiles containing multiple contributors. Throughout the proceedings, however, Jesus continuously and consistently identified Preston as the perpetrator of the crimes against him and his wife. While Preston correctly states that Det. Echols failed to strictly comply with the requirements for administering a photo array, the trial court provided an instruction pursuant to
{¶ 48} Similarly, the record reflects that Evans engaged in a comprehensive discussion regarding the benefits of the TrueAllele computer program, explaining that the software allows forensic scientists to interpret profiles “without bias.” (Tr. 749.) Contrary to Preston‘s position on appeal, Evans testified that TrueAllele “is a better system than before because it‘s more reliable then when we tested it originally when we looked at an eye level.” (Tr. id.) This court has previously acknowledged the general acceptance of the TrueAllele technology. See State v. Blevins, 8th Dist. Cuyahoga No. 106115, 2018-Ohio-3583, ¶ 32, citing State v. Mathis, Cuyahoga C.P. No. CR-16-611539-A (Apr. 13, 2018); People v. Wakefield, 47 Misc.3d 850, 9 N.Y.S.3d 540, 2015 NY Misc. LEXIS 306 (Sup. Ct. Schenectady, Feb. 9, 2015) (compilation of cases accepting True Allele).
{¶ 49} Collectively, we find the reliable identification testimony, when viewed in conjunction with the plethora of DNA evidence, was consistent, competent, credible evidence upon which the trier of fact could have reasonably found, beyond a reasonable doubt, that Preston was the perpetrator. Accordingly, Preston‘s convictions are not against the weight of the evidence.
{¶ 50} Preston‘s second assignment of error is overruled.
{¶ 51} In his third assignment of error, Preston argues the trial court erred by denying his request for a jury instruction on the lesser-included offense of simple assault.
{¶ 52} The lesser-included-offense doctrine is codified in Ohio law in
When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense.
See also
{¶ 53} A lesser-included offense is one in which
(i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.
State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph three of the syllabus.
{¶ 54} Generally, “a charge on a lesser included or inferior offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included or inferior offense.” State v. Carter, 2018-Ohio-3671, 119 N.E.3d 896, ¶ 59 (8th Dist.), citing State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the
To require an instruction * * * every time some evidence, however minute, is presented going to a lesser included (or inferior-degree) offense would mean that no trial judge could ever refuse to give an instruction on a lesser included (or inferior-degree) offense.
Id., quoting Shane at 633. Thus, a court must find there is sufficient evidence to allow a jury to reasonably reject the greater offense and find the defendant guilty on the lesser included or inferior offense. Shane at 632-633.
{¶ 55} Relevant to this case, the parties do not dispute that the misdemeanor offense of assault in violation of
{¶ 56} Preston‘s third assignment of error is overruled.
D. Admission of Evidence
{¶ 57} In his fourth assignment of error, Preston argues the trial court erred by admitting certain autopsy photographs over defense counsel‘s objections. Preston contends the photographs were “grossly inflammatory” and were “were not relevant or probative of any fact in issue.”
{¶ 58} “The prosecution is entitled to present evidence showing the cause of death, even if the cause is uncontested, to give the jury an ‘appreciation of the nature and circumstances of the crimes.‘” State v. Catron, 8th Dist. Cuyahoga No. 101789, 2015-Ohio-2697, ¶ 25 quoting State v. Chatmon, 8th Dist. Cuyahoga No. 99508, 2013-Ohio-5245, ¶ 41. Moreover, the state has latitude in constructing its case and determining the manner by which it meets its burden of proof. See State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 99, 103 (“[T]he state bears the burden of proof and it has no obligation to meet that burden in the least gruesome way.“); see also State v. Kirkland, Slip Opinion No. 2020-Ohio-4079,
{¶ 59} Thus, “[a]utopsy photographs are generally admissible to help the jury appreciate the nature of the crimes, to illustrate the coroner‘s or other witnesses’ testimony by portraying the wounds, to help prove the defendant‘s intent, and to show the lack of accident or mistake.‘” State v. Costell, 3d Dist. Union No. 14-15-11, 2016-Ohio-3386, ¶ 142, citing State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 52. Consequently, autopsy photographs — even if gruesome — are not per se inadmissible. Maurer at 265.
{¶ 60} The admissibility of gruesome photographs in a noncapital case is considered with reference to
{¶ 61} In this case, the disputed autopsy photographs, marked state‘s exhibit Nos. 195 and 196, are of Lesley‘s liver and kidney. The photographs show that Lesley‘s internal organs sustained extensive lacerations as a result of the pressure caused by the weight of the vehicle. Preston opposed the admission of the photographs at trial, arguing they were “grossly inflammatory” and “unfairly prejudicial under Evidence Rule 403.” (Tr. 602-606.) The trial court disagreed, stating:
I [do] find that the photographs are necessary to help the jury understand the medical examiner‘s testimony, and they‘re offered based upon the State‘s position that these photos are offered to prove elements of the offenses that they are required to, and that they have the burden of proving.
So I do find that the photographs are necessary, and that the probative value of the photos is not outweighed by the danger of unfair prejudice, so I am going to allow them, and they are only these two photos, so they are not cumulative or repetitive, so I will find that the photos are admissible.
(Tr. 932.)
{¶ 62} After careful review, we are unable to conclude that the trial court abused its discretion by permitting the state to introduce the disputed autopsy photographs. At trial, Dr. Galita testified that Lesley‘s cause of death was blunt force
{¶ 63} Preston‘s fourth assignment of error is overruled.
E. Identification Testimony
{¶ 64} In his fifth assignment of error, Preston argues he was deprived a fair trial and due process when Det. Vowell improperly commented on the credibility of the pretrial identification.1
{¶ 65} “On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967), paragraph one of the syllabus. “In our system of justice it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses.” State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988). Opinion testimony regarding another witness‘s credibility “infringe[s] upon the role of the fact finder, who is charged with making determinations of veracity and credibility.” Id. Thus, “the opinion of a witness as to whether another witness
{¶ 66} During the cross-examination of Det. Vowell, defense counsel questioned Det. Vowell extensively about his decision to seriously pursue a case against Preston while simultaneously discounting Jesus‘s identification of a second individual, A.B. On appeal, Preston‘s position that Det. Vowell improperly commented on the credibility of Jesus‘s identification relies on the following line of questions posed during the cross-examination:
DEFENSE COUNSEL: Have you ever gone out and interviewed [A.B.]?
DET. VOWELL: No.
DEFENSE COUNSEL: Has anybody in the Homicide Unit -
DET. VOWELL: Not that I know of.
DEFENSE COUNSEL: Let me finish the question. Any police officer anywhere go out and interview [A.B.]? DET. VOWELL: Not that I know of.
DEFENSE COUNSEL: So you‘re just discounting a witness’ eyewitness identification of [A.B.] as being involved, you‘re discounting that; aren‘t you?
DET. VOWELL: No.
DEFENSE COUNSEL: Then why didn‘t you go out and interview [A.B.]?
DET. VOWELL: We are still checking everything out to make sure that -- we were not sure [A.B.] was in there. If I remember right, I said he thinks that‘s the guy. I think that‘s what he said. He said that‘s the passenger.
DEFENSE COUNSEL: The jury will have the video here, and they‘ve already seen what the reaction of Jesus Cruz was when he was having that photo spread shown to him. So the video kind of speaks for itself as to his certainty, but you had no problem believing that Michael Preston was picked out by him; correct?
DET. VOWELL: Correct.
DEFENSE COUNSEL: You believed that was a valid pick of Michael Preston, don‘t you?
DET. VOWELL: Yes, because we knew him as -
DEFENSE COUNSEL: That it wasn‘t suggestive or anything like that, correct?
DET. VOWELL: Correct.
(Tr. 1185-1186.)
{¶ 67} Having reviewed Det. Vowell‘s testimony in its entirety, we find no error in the admission of the foregoing testimony. From this exchange, it is evident
{¶ 68} Moreover, even if this court were to interpret Det. Vowell‘s testimony as being improper, we are unable to conclude that Det. Vowell‘s response to a direct question posed by defense counsel affected a substantial right of the accused. As discussed, the record contains ample forensic evidence and eyewitness testimony placing Preston in the driver‘s seat of the vehicle that ran over the body of Lesley as she laid unconscious on the ground. And, beyond Det. Vowell‘s brief reference to the validity of the photo array procedure, the jury was presented with extensive evidence from which it could properly assess the reliability of Jesus‘s identification. Ultimately, the jury found Jesus‘s identification to be credible despite Preston‘s challenges to Det. Echols‘s compliance with the procedural requirements of
{¶ 69} Preston‘s fifth assignment of error is overruled.
F. Consecutive Sentences
{¶ 70} In his sixth assignment of error, Preston argues the record does not support the trial court‘s imposition of consecutive sentences.
{¶ 71} For felony sentences, an “appellate court‘s standard for review is not whether the sentencing court abused its discretion.”
{¶ 72} As the Ohio Supreme Court has explained, when reviewing consecutive sentences, ”
{¶ 74} “In Ohio, sentences are presumed to run concurrent to one another unless the trial court makes the required findings under
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender‘s conduct. (c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Id.
{¶ 75} The failure to make the above findings renders the imposition of consecutive sentences contrary to law. Gohagan at ¶ 29.
{¶ 76} In this case, the trial court made the following findings when imposing consecutive sentences:
I am ordering that the sentences be served consecutively, and that is pursuant to Revised Code Section
2929.14(C)(4) because I find that the consecutive sentences of this sentence is necessary to protect the public from future crime and to punish the offender, and that consecutive sentences are not disproportionate to the seriousness of your conduct and to the danger that you pose to the public.
I also find that at least two of the offenses were committed as part of one or more courses of conduct, and that the harm caused by two or more of the multiple offenses were so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of your conduct. I also find that your history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by you.
(Tr. 1606-1607.)
{¶ 77} Based on the foregoing statements, we find the trial court made the necessary findings for imposing consecutive sentences pursuant to
{¶ 78} Because the trial court made the requisite findings during the sentencing hearing under
{¶ 79} Finally, Preston also appears to argue that the trial court‘s imposition of consecutive sentences was contrary to “the felony sentencing guidelines,”
{¶ 80} Pursuant to
{¶ 81} Furthermore, in imposing a felony sentence, “the court shall consider the factors set forth in [
{¶ 83} Although the trial court must consider the principles and purposes of sentencing, as well as any mitigating factors, the court is not required to use particular language nor make specific findings on the record regarding its consideration of those factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13. In fact, unless the defendant affirmatively shows otherwise, it is presumed that the trial court considered the relevant sentencing factors under
{¶ 84} On appeal, Preston does not dispute that his sentences were within the permissible statutory ranges for his felony offenses and that the trial court
{¶ 85} Preston‘s sixth assignment of error is overruled.
{¶ 86} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR