STATE OF OHIO, PLAINTIFF-APPELLEE, v. GERRICK ANTHONY SHELDON, DEFENDANT-APPELLANT.
CASE NO. 6-18-07
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY
October 7, 2019
[Cite as State v. Sheldon, 2019-Ohio-4123.]
ZIMMERMAN, P.J.
OPINION; Appeal from Hardin County Common Pleas Court; Trial Court No. CRI 2017 2116; Judgment Affirmed
Todd A. Workman for Appellant
Jason M. Miller for Appellee
{1} Defendant-appellant, Gerrick Anthony Sheldon (“Sheldon“), appeals the May 9, 2018 judgment entry of sentence of the Hardin County Court of Common Pleas. For the reasons that follow, we affirm.
{2} This case stems from the August 12-13, 2017 foiled plan of Sheldon to have his minor son, G.E.S., start a fire in the dryer vent of the residence of Sheldon‘s estranged wife, D.S., in order to cause her death.12 At the time Sheldon solicited G.E.S. to start the fire, D.S.‘s son, G.N.S., was residing (and was present) at the residence.3
{3} On August 23, 2017, the Hardin County Grand Jury indicted Sheldon on fifteen counts: Counts One and Two of complicity to attempted aggravated murder in violation of
{4} The case proceeded to a jury trial on March 26-30 and April 2-3, 2018. (Doc. No. 137). On April 3, 2018, the jury found Sheldon guilty of Counts One, Two, Three, Four, Five, Six, Eleven, Twelve, Thirteen, and Fourteen, but not guilty of Count Fifteen of the indictment. (Doc. Nos. 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 137).5
{5} On May 1, 2018, the trial court sentenced Sheldon to 7 years on Counts One and Two, respectively; 36 months on Count Five; 12 months on Count Eleven;
{6} Sheldon filed his notice of appeal on June 5, 2018 and raises three assignments of error for our review. (Doc. No. 145).
Assignment of Error No. I
The evidence presented by the State was insufficient to support findings of guilt and findings of guilt were against the manifest weight of the evidence presented.
{7} In his first assignment of error, Sheldon argues that his convictions are based on insufficient evidence and are against the manifest weight of the evidence. In particular, he argues that the State presented insufficient evidence that he: (1) was complicit in the attempted aggravated murders of D.S. and G.N.S.; (2) was complicit in the attempted aggravated arson of the residence located at 13912 County Road 60 in Dunkirk, Ohio; (3) was complicit in the unlawful possession of dangerous ordnance; (4) was complicit in possessing criminal tools; (5)
Standard of Review
{8} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Thus, we address each legal concept individually.
{9} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 102 (1997), fn. 4. Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
{10} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Sufficiency of the Evidence
{11} As an initial matter, although Sheldon challenges the sufficiency and the weight of the evidence supporting the jury‘s findings of guilt as to the
{12} In this case, error, if any, with respect to the sufficiency or weight of the evidence as to Sheldon‘s complicity-to-attempted-aggravated-arson charges under Counts Three, Four, and Six or as to his complicity-to-possessing-criminal-tools charge under Count Twelve is harmless beyond a reasonable doubt because
Complicity to Attempted Aggravated Murder
{14} Sheldon was convicted of complicity to attempted aggravated murder under
(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense.
* * *
(4) Cause an innocent or irresponsible person to commit the offense.
* * *
(C) No person shall be convicted of complicity under this section unless an offense is actually committed, but a person may be convicted of complicity in an attempt to commit an offense in violation of section 2923.02 of the Revised Code.
{15} In this case, Sheldon was convicted of being complicit in the attempted aggravated murders of D.S. and G.N.S. Ohio‘s aggravated-murder statute,
{16} On appeal, Sheldon argues only that there is insufficient evidence that he acted with prior calculation and design and that the State presented insufficient
“the phrase, ‘prior calculation and design,’ to indicate an act of studied care in planning or analyzing the means of the crime, as well as a scheme compassing the death of the victim. Neither the degree of care nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves, but they must be sufficient to meet the proposed test of ‘prior calculation and design.‘”
State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, ¶ 17, quoting Ohio Legislative Service Commission, Proposed Ohio Criminal Code: Final Report of the Technical Committee to Study Ohio Criminal Laws and Procedures, at 71 (1971), and citing State v. Taylor, 78 Ohio St.3d 15, 18-19 (1997). See also State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, ¶ 133 (“‘Prior calculation and design’ requires ‘a scheme designed to implement the calculated decision to kill.‘“), quoting State v. Cotton, 56 Ohio St.2d 8, 11 (1978). “The General Assembly has defined the mens rea of purpose, stating that ‘[a] person acts purposely when it is the person‘s specific intention to cause a certain result.‘” Id., quoting
{17} “[T]he existence of prior calculation and design is determined on a case-by-case basis analysis of the facts and evidence.” State v. Harris, 8th Dist. Cuyahoga No. 104329, 2017-Ohio-2751, ¶ 37, citing State v. Jones, 91 Ohio St.3d 335, 345 (2001). See also Walker at ¶ 19. “Although there is no bright-line test for determining prior calculation and design,” the Supreme Court of Ohio has offered the following three factors to consider when determining whether the totality of the circumstances surrounding the murder suggest that the defendant acted with prior calculation and design: (1) “whether the accused and the victim knew each other” and, if so, whether their relationship was strained; (2) “whether there was thought or preparation in choosing the murder weapon or murder site“; and (3) “whether the act was ‘drawn out’ or ‘an almost instantaneous eruption of events.‘” Id. at ¶ 20.
{18} In this case, the State presented sufficient evidence that Sheldon engaged in a scheme designed to kill D.S. and G.N.S. Sheldon and D.S., who were married to each other, were divorcing and were estranged at the time of the incident. (See, e.g., Mar. 26, 2018 Tr., Vol. IA, at 258-260); (Mar. 28, 2018 Tr., Vol. III, at 671-673). D.S. testified that their divorce hearing was scheduled for September 19,
{19} Moreover, D.S. testified that their relationship was strained. Compare State v. Miller, 8th Dist. Cuyahoga No. 103591, 2016-Ohio-7606, ¶ 65 (discussing the strained relationship between Miller and his wife—the victim—in concluding that Miller‘s attempted-murder and attempted-aggravated-murder convictions were based on sufficient evidence). In particular, D.S. testified that she contacted the Hardin County Sheriff‘s Office several times prior to the (August 12-13, 2017) incident because Sheldon had “been to the house numerous times and caused damage to the house, broke in when [she] was there * * * .” (Mar. 28, 2018 Tr., Vol. III, at 677).
{20} G.N.S., who resided with D.S., testified that his relationship with Sheldon was also strained. (Mar. 28, 2018 Tr., Vol. III, at 779-780). (See also Mar. 26, 2018 Tr., Vol. IA, at 276-277). Specifically, G.N.S. testified that (when Sheldon was still residing at the house) he was “a victim of * * * violence [by Sheldon] in the house.” (Mar. 28, 2018 Tr., Vol. III, at 779-780).
{21} Furthermore, the evidence that the State presented at trial reflects that Sheldon‘s scheme was “drawn out” with thought and preparation in orchestrating the murder plan. Indeed, G.E.S. (who was 16 years old at the time of trial) testified
{22} After G.E.S. seemingly volunteered, Sheldon began making the preparations to burn the house. (Mar. 26, 2018 Tr., Vol. IA, at 263). (See also Mar. 27, 2018 Tr., Vol. IIA, at 507-508); (Mar. 29, 2018 Tr., Vol. IV, at 1093). Specifically, he
* * *
[There] wasn‘t much [gas in the lawnmower], so he poured [gas from] a weed eater.
(Mar. 26, 2018 Tr., Vol. IA, at 262-263, 266); (State‘s Exs. 27, 32). Further, Sheldon constructed a “funnel system” in which he taped a hose to a funnel for G.E.S. to use as a conduit to funnel the gasoline into the house. (Mar. 26, 2018 Tr., Vol. IA, at 268-270); (State‘s Exs. 28, 29, 30).
{23} Sheldon placed the funnel system, a candle lighter, some newspaper, a pair of gloves, and the container of gasoline into a bag (the “kit“) for G.E.S. to carry. (Mar. 26, 2018 Tr., Vol. IA, at 268, 271); (State‘s Exs. 23, 24, 25, 26). While Sheldon was assembling the materials, he began telling G.E.S. of his plan, which was for G.E.S. “to run to the back of the house by the dryer vent that comes out of the house” and “to shove * * * the funnel up into the thing, and * * * then after [he] pour[ed] all the gas in there, * * * shove the newspaper in there and light it, so it will catch.” (Mar. 26, 2018 Tr., Vol. IA, at 290). Sheldon further instructed G.E.S. to light the fire through the dryer vent because it was “right beside” D.S.‘s bedroom. (Id. at 291). Importantly, before leaving the house, Sheldon and G.E.S. tested the candle lighter to ensure that it worked. (Id. at 267). Lastly, Sheldon instructed
{24} Thereafter, G.E.S. got into a vehicle with Sheldon, placing the “kit” between his feet, and Sheldon drove G.E.S. to the residence. (Id. at 264, 271, 322-323). According to G.E.S., they drove past the residence “about three times.” (Id. at 271). “[T]he first time he was just seeing if anyone was up and * * * he came straight past it again in the same direction, and just making sure. And then he got down to the end of the road, and he stopped, and then he turned around and came back down.” (Id. at 272). “[A]fter the third time, he went past the house a little bit, and there‘s this dirt path farmers use, he stopped * * * there, and [G.E.S.] had to run straight through the neighbor‘s yard.” (Id. at 274-275). G.E.S. testified that—because D.S. and G.N.S. do not park their vehicles in a garage—he and Sheldon knew that D.S. and G.N.S. were home because they saw (as they were driving by) that their vehicles were parked in the driveway. (Id. at 313-314).
{25} Viewing this evidence from the lens of which we view the sufficiency of the evidence, we conclude that the State presented sufficient evidence that Sheldon acted with prior calculation and design in devising a scheme intended to kill D.S., and then by attempting to carry it out. Furthermore, this evidence is sufficient evidence that Sheldon acted with prior calculation and design as to G.N.S.
{26} Nevertheless, Sheldon contends that there is insufficient evidence that he acted with prior calculation and design because “[t]here was no credible testiony [sic] given as to the calculation and design element of the crime.” (Appellant‘s Brief at 10). Sheldon‘s credibility argument is misplaced. “In assessing the sufficiency of the evidence, we do not resolve evidentiary conflicts or assess the credibility of
{27} Next, Sheldon argues that his complicity-to-attempted-aggravated-murder convictions are based on insufficient evidence because the State did not present any evidence reflecting that the plan, if carried out successfully, would have resulted in the deaths of D.S. and G.N.S. We disagree. The State may establish the elements of a crime with direct or circumstantial evidence. Miller, 2016-Ohio-7606, at ¶ 60, citing State v. Durr, 58 Ohio St.3d 86, 92 (1991). “‘Circumstantial evidence’ is the ‘proof of facts by direct evidence from which the trier of fact may infer or derive by reasoning or other facts.‘” State v. Lawwill, 12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 12, quoting State v. Wells, 12th Dist. Warren No. CA2006-02-029, 2007-Ohio-1362, ¶ 11, citing State v. Griesheimer, 10th Dist. Franklin No. 05AP-1039, 2007-Ohio-837, ¶ 26. Circumstantial evidence has no less probative value than direct evidence. Griesheimer at ¶ 26, citing Jenks at paragraph one of the syllabus. See also State v. Heinish, 50 Ohio St.3d 231, 238 (1990) (“This court has long held that circumstantial evidence is sufficient to sustain
{28} Sheldon contends that the State presented insufficient evidence reflecting “the ability of [the] plan to work” because
[w]e are never told what the drier [sic] vent is made or [sic], whether or not it is flammable, or whether or not fire could be started in the vent and spread to the rest of the home resulting in a fire that could cause injury to its occupants.
(Appellant‘s Brief at 9-10). Sheldon‘s argument is misplaced. Instead, the jury could infer that starting a fire in an occupied structure (at nighttime), and in a room close to the intended victim‘s bedroom, is conduct that, if successful, could result in the victim‘s death. See State v. Simpson, 10th Dist. Franklin No. 01AP-757, 2002-Ohio-3717, ¶ 97. More plainly, the jury could infer that a fire would result from the combined use of a candle lighter, newspaper, and flammable liquid; that
Complicity to Attempted Aggravated Arson
{29} We also reject Sheldon‘s argument that his complicity-to-attempted-arson conviction under Count Five of the indictment is based on insufficient evidence. In addition to Ohio‘s complicity and attempt-crime statue that we previously identified, the arson offense of which Sheldon was convicted under Count Five provides, in its relevant part, “No person, by means of fire or explosion, shall knowingly * * * [c]ause physical harm to any occupied structure.”
A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.
“Physical harm to property” means any tangible or intangible damage to property that, in any degree, results in loss to its value or interferes with its use or enjoyment. “Physical harm to property” does not include wear and tear occasioned by normal use.
“Occupied structure” means any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies:
(1) It is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present.
(2) At the time, it is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present.
(3) At the time, it is specially adapted for the overnight accommodation of any person, whether or not any person is actually present.
(4) At the time, any person is present or likely to be present in it.
{30} Thus, similar to Sheldon‘s complicity-to-attempted-aggravated-murder convictions, the State was required to prove that Sheldon knowingly
{31} Here, Sheldon offers a similar argument to the argument he posed regarding the sufficiency of the evidence supporting the attempt element of his complicity-to-attempted-aggravated-murder convictions. That is, he argues: (1) that the State “did not present any evidence as to the damaging effect of a fire placed in the dryer vent“; and (2) that the State did not present any evidence that Sheldon “would have any reason to know what damaging effect this half baked plan may have.” (Appellant‘s Brief at 11). Since he challenges only the physical-harm-to-a-structure and standard-of-culpability elements of his complicity-to-attempted-aggravated-arson conviction under
{32} Sheldon‘s arguments fail to consider (as we previously discussed) that the State may prove elements of criminal offenses by way of circumstantial evidence. See Miller, 2016-Ohio-7606, at ¶ 60, citing Durr, 58 Ohio St.3d at 92. Indeed, it is well established that circumstantial evidence is sufficient to sustain arson convictions because “[b]ased upon the very nature of the crime, proof of arson must, of necessity, often rely heavily on circumstantial evidence.” State v. Weber, 124 Ohio App.3d 451, 462 (10th Dist.1997), citing State v. Pruiett, 9th Dist. Summit No. 12858, 1987 WL 9839, *1 (Apr. 15, 1987). See State v. Simpson, 7th Dist. Columbiana No. 01-CO-29, 2002-Ohio-5374, ¶ 47, citing State v. Webb, 8th Dist. Cuyahoga No. 72588, 1998 WL 338071, *3 (June 25, 1998), citing State v. Zayed, 8th Dist. Cuyahoga No. 71039, 1997 WL 450045, *3 (Aug. 7, 1997), State v. Wills, 120 Ohio App.3d 320, 330-332 (8th Dist.1997), Weber at 462, State v. Alba, 6th Dist. Sandusky No. S-94-018, 1995 WL 326394, *7 (June 2, 1995), and State v. Wright, 3d Dist. Crawford No. 3-92-24, 1994 WL 725919, *2 (Dec. 30, 1994).
{33} Accordingly, the jury could infer that there would be a damaging effect to the house from a fire placed in a dryer vent. That is, the jury could infer that a fire placed in a dryer vent would result in any tangible or intangible damage to the residence, which would result, in any degree, in a loss to its value or would interfere with the use or enjoyment of the residence. See State v. Sheline, 8th Dist. Cuyahoga No. 106649, 2019-Ohio-528, ¶ 93 (concluding that “it would be ludicrous to suggest that a fire [would] not result in loss to the value of the victim‘s house [or] did not interfere with the use or enjoyment of the house“). See also State v. Dixon, 5th Dist. Stark No. 2013 CA 00003, 2013-Ohio-4149, ¶ 44; Mitchell, 2000 WL 1114848, at *3-4. Thus, the State presented sufficient evidence of the physical-harm-to-a-structure element.
{35} In this case, the State presented evidence that Sheldon instructed G.E.S. to pour gasoline—a flammable liquid—inside the dryer vent (by way of a funnel system), then ignite the liquid by setting fire to newspaper (a material typically used to start fires) and “shov[ing]” the newspaper into the dryer vent. To ensure the success of his plan, Sheldon tested the candle lighter that he provided G.E.S. prior to leaving his residence. Based on this evidence, the jury could infer that Sheldon was aware that starting a fire in the dryer vent would probably cause
Complicity to Unlawful Possession of Dangerous Ordnance
{36} Next, we will address the sufficiency of the evidence supporting Sheldon‘s complicity-to-unlawful-possession-of-dangerous-ordnance conviction. We previously defined Ohio‘s complicity statute.
{37} On appeal, Sheldon contends only that the State presented insufficient evidence that he knowingly possessed dangerous ordnance because “the possession of gasoline in a gallon jug does not fit within the definition of dangerous ordinance [sic] * * *” (Appellant‘s Brief at 11). This argument is feckless. A plastic
Complicity to Violating a Protection Order and Endangering Children
{38} Finally, we will address the sufficiency of the evidence supporting Sheldon‘s complicity-to-violating-a-protection-order and endangering-children convictions. Sheldon argues that his complicity-to-violating-a-protection-order conviction is based on insufficient evidence because “[t]here is nothing in [
{39} In addition to Ohio‘s complicity statute, the State was required to establish the elements of the crime of violating a protection order under
A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person‘s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
{40} The criminal offense of endangering children is codified in
No person, who is the parent * * * of a child under eighteen years of age * * *, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.”
{41} In these arguments, Sheldon failed to present any citations to case law or statues in support of his assertions. See State v. Stevens, 3d Dist. Allen No. 1-14-58, 2016-Ohio-446, ¶ 81; State v. Russell, 9th Dist. Summit No. 25154, 2010-Ohio-5466, ¶ 17. “[A] defendant has the burden of affirmatively demonstrating the error of the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can support this assignment of error, it is not this court‘s duty to root it out.‘” Id., quoting Cook at ¶ 27.
{42} “App.R. 12(A)(2) provides that an appellate court ‘may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A).‘” State v. Jackson, 10th Dist. Franklin No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally, App.R. 16(A)(7) requires that an appellant‘s brief include ‘[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on
Manifest Weight of the Evidence
{43} Having concluded that Sheldon‘s complicity-to-attempted-aggravated-murder convictions, complicity-to-attempted-aggravated-arson conviction under Count Five of the indictment, and his complicity-to-possession-of-dangerous-ordnance convictions are based on sufficient evidence, we next address Sheldon‘s arguments that his complicity-to-attempted-aggravated-murder convictions, complicity-to-attempted-aggravated-arson conviction under Count Five of the indictment, complicity-to-possession-of-dangerous-ordnance conviction, complicity-to-violating-a-protection-order conviction, and endangering-children conviction are against the manifest weight of the evidence. Velez, 2014-Ohio-1788, at ¶ 76.
{44} Sheldon contends that his complicity-to-attempted-aggravated-murder convictions, complicity-to-attempted-aggravated-arson conviction under Count
{45} “Although we consider the credibility of witnesses in a manifest weight challenge, we are mindful that the determination regarding witness credibility rests primarily with the trier of fact because the trier of fact is in the best position to view the witnesses and observe their demeanor, gestures, and voice inflections—observations that are critical to determining a witness‘s credibility.” State v. Bentz, 3d Dist. Allen No. 1-16-17, 2017-Ohio-5483, ¶ 98, quoting State v. Williams, 8th Dist. Cuyahoga No. 98210, 2013-Ohio-573, ¶ 31, citing State v. Clark, 8th Dist. Cuyahoga No. 94050, 2010-Ohio-4354, ¶ 17, citing State v. Hill, 75 Ohio St.3d 195, 205 (1996) and State v. Antill, 176 Ohio St. 61, 66 (1964).
““[N]inety percent of the total meaning of testimony is interpreted through non-verbal behavior, such as voice inflections, hand gestures, and the overall visual demeanor of the witness. The witness‘[s] choice of words accounts for only ten percent of the meaning of their testimony.‘”
In re D.L., 3d Dist. Crawford No. 3-11-08, 2012-Ohio-1796, ¶ 32, quoting State v. Brown, 3d Dist. Allen No. 1-10-31, 2011-Ohio-1461, ¶ 51, quoting State v. Evans, 67 Ohio St.3d 405, 410-411 (1993). “Thus, the decision whether, and to what extent, to believe the testimony of each witness is within the province of the factfinder.” Id., citing State v. Key, 2d Dist. Montgomery No. 22609, 2009-Ohio-422, ¶ 25. Accordingly, we will not second guess “the jury‘s witness-credibility determination unless it is clear that the jury lost its way and a miscarriage of justice
{46} Furthermore, “[a] defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial.” State v. Campbell, 10th Dist. Franklin No. 07AP-1001, 2008-Ohio-4831, ¶ 23, citing State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21. The trier of fact ““‘may take note of the inconsistencies and resolve or discount them accordingly, [but] such inconsistencies do not render [a] defendant‘s conviction against the manifest weight or sufficiency of the evidence.‘“” State v. Ealy, 10th Dist. Franklin No. 15AP-600, 2016-Ohio-1185, ¶ 19, quoting State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639, ¶ 113 (10th Dist.), quoting State v. Craig, 10th Dist. Franklin No. 99AP-739, 2000 WL 297252, *3 (Mar. 23, 2000).
{47} After reviewing the evidence, we cannot conclude that the jury lost its way and created such a manifest miscarriage of justice in its witness-credibility determination requiring that we reverse Sheldon‘s convictions and order a new trial. At trial, the State presented the testimony of 22 witnesses over seven days; whereas, the defense called a single witness. Importantly, the State presented the testimony of three law enforcement officers who interviewed G.E.S. or Sheldon regarding the August 12-13, 2017 incident—Deputy Justin Dick (“Deputy Dick“), Deputy Mark
{48} While at D.S.‘s residence, G.E.S. provided Deputy Dick with a sworn, written statement describing the incident. (Mar. 28, 2018 Tr., Vol. III, at 814-819); (Mar. 28, 2018 Tr., Vol. IIIA, at 820-822); (State‘s Ex. 2). Prior to codifying the statement, Deputy Dick informed G.E.S. that he would be charged with a felony offense—perjury if he was later determined to be lying. (State‘s Ex. 15).
{49} Because G.E.S. informed Deputy Dick that Sheldon drove him to D.S.‘s residence in a silver PT Cruiser—and Sheldon was “circling the block” in that vehicle—Deputy Dick left the residence to search for the silver PT Cruiser. (Mar. 28, 2018 Tr., Vol. IIIA, at 827); (State‘s Ex. 15). “As [he was] getting into [his] cruiser to leave the residence, [Deputy Dick saw] the [silver] PT Cruiser drive in front of the house * * *” (Mar. 28, 2018 Tr., Vol. IIIA, at 827-828). Deputy Ellis (who was nearby) stopped the silver PT Cruiser, which was operated by Sheldon, and Deputy Dick later joined Deputy Ellis and Sheldon. (Id. at 829-830). When asked why he was operating his vehicle in the vicinity of D.S.‘s residence,
{50} Deputy Dick informed Sheldon of G.E.S.‘s statement and Sheldon denied any involvement in the plan to burn D.S.‘s residence. (State‘s Ex. 15). (See also Mar. 30, 2018 Tr., Vol. VA, at 1508-1509). Thereafter, Sheldon informed Deputies Dick and Ellis that he was searching for G.E.S. at D.S.‘s residence because G.E.S. “mentioned that he was wanting to get a bicycle from [D.S.‘s] house.” (Mar. 28, 2018 Tr., Vol. IIIA, at 834). Deputies Dick and Ellis instructed Sheldon to meet them at the Hardin County Sheriff‘s Office to provide them with a statement. (State‘s Ex. 15). Once at the sheriff‘s office, Deputy Ellis (relying on an interview tactic) informed Sheldon that he did not believe his version of events. (Mar. 28, 2018 Tr., Vol. IIIA, 854, 935-936); (State‘s Ex. 15).
{51} Because of G.E.S.‘s and Sheldon‘s conflicting statements, the investigation was transferred to Detective Conley. Detective Conley, on August 13, 2017, first interviewed G.E.S., then Sheldon; then, Detective Conley interviewed G.E.S. again on August 18, 2017. (Mar. 29, 2018 Tr., Vol. IV, at 1086-1087). The video recordings of those interviews were presented to the jury. (See State‘s Exs. 19, 73). After reviewing the evidence that he collected during his investigation, Detective Conley concluded that he did not “have any evidence to charge” G.E.S.
{52} Further, when Detective Conley asked G.E.S. about what happened, G.E.S. provided “the story about that situation in the house,” while Sheldon (instead of providing only what happened that night) provided “an entire family history.” (Mar. 30, 2018 Tr., Vol. VA, at 1503-1504). Detective Conley also testified that Sheldon (during his interview with Detective Conley) “didn‘t know anything about what happened out at D.S.‘s” residence and “was totally amazed [that G.E.S.] was even at the house” despite Deputy Dick informing Sheldon as to G.E.S.‘s version of events.10 (Id. at 1508-1509). Detective Conley further testified that Sheldon would deflect or change the subject of questions that Detective Conley posed to Sheldon. (Id. at 1537). In sum, Detective Conley concluded (based on the totality of his investigation) that the August 12-13, 2017 incident did not involve a “conspiracy” in which G.E.S. conspired with others to frame Sheldon. (Id. at 1528-1529).
{53} The State also presented the testimony of D.S., G.E.S.‘s brothers, T.S. and Hunter Sheldon (“Hunter“), Hunter‘s girlfriend, Cidra Billiel (“Billiel“), and G.E.S.‘s biological mother, Geneva Chrysanthus (“Chrysanthus“)—all of whose testimony was consistent to the testimony of G.E.S. Compare State v. Hightower, 8th Dist. Cuyahoga No. 93024, 2010-Ohio-1055, ¶ 18 (“Despite some minor
{54} Next, Hunter testified that G.E.S. contacted him, informed him of Sheldon‘s plan, and asked him to warn D.S. (Id. at 542, 549-550, 555-559). (See State‘s Exs. 4, 12). (See also State‘s Ex. 83). Based on his conversation with G.E.S., Hunter contacted D.S. to relay G.E.S.‘s warning and to inform her that G.E.S. planned to “meet [her] at the screen door out back.” (Mar. 27, 2018 Tr., Vol. IIA, at 551, 554); (State‘s Ex. 14). Likewise, Billiel testified that G.E.S. initially contacted Hunter through the Facebook application on her phone. (Mar. 27, 2018 Tr., Vol. IIA, at 608-609). She also testified that she previously overheard Sheldon discussing a plan around July 4, 2017 “to set the house on fire and blame it on fireworks.” (Id. at 612-613).
{56} D.S. also testified that she received a phone call from Hunter relaying G.E.S.‘s warning and informing her that G.E.S. “was going to knock on the door.” (Mar. 28, 2018 Tr., Vol. III, at 676, 712-713). (See State‘s Ex. 12). In response to Hunter‘s message, D.S. requested that Hunter “send * * * the messages he was getting from [G.E.S.] to [her] email, and hung up with Hunter, and called the Sheriff, and told them what [she] was told.” (Mar. 28, 2018 Tr., Vol. III, at 676). According to D.S., she requested that Hunter forward the messages to her because she wanted to show the messages to law enforcement, not because she suspected G.E.S. or Hunter were trying to “trick” her. (Id. at 710-711).
{57} Because Deputy Dick responded to her residence before G.E.S. arrived, Deputy Dick instructed that “if [she] heard a knock at the back door to call
{58} The State also presented the testimony of Detective Terry Sneary (“Detective Sneary“) of the Hardin County Sheriff‘s Office who analyzed the data contained in G.E.S.‘s, D.S.‘s, and Sheldon‘s cell phones. (See State‘s Exs. 4, 7, 17, 44, 45, 104). (See also State‘s Ex. 8, 12, 13, 14). Detective Sneary recovered (from G.E.S.‘s and D.S.‘s cell phones) the calls and messages that were exchanged between G.E.S., D.S., Hunter, Billiel, and Chrysanthus. (Mar. 29, 2018 Tr., Vol. IV, at 1004, 1009-1011, 1014-1016). In relation to Sheldon‘s cell phone, Detective Sneary did not recover any evidence of significance to Sheldon‘s convictions. (Id. at 993-998).
{59} In his defense, Sheldon offered the testimony of Jonathan Rhoads (“Rhoads“), who was incarcerated with Sheldon. (Apr. 2, 2018 Tr., Vol. VIA, at 1784, 1787). Rhoads testified that he conversed with Billiel in August 2017—after the August 12-13, 2017 incident and after she ended her relationship with Hunter. (Id. at 1787-1788). According to Rhoads, Billiel informed him that G.E.S. and Hunter “were trying to set [Sheldon] up * * *” (Id. at 1792). Rhoads provided
{60} Although Sheldon did not testify in his defense, the jury was able to observe Sheldon‘s interactions with Deputies Dick and Ellis and Sheldon‘s interview with Detective Conley. (See State‘s Exs. 15, 19). It was well within the province of the trier of fact to determine the credibility of the evidence presented at trial. See State v. Bitting, 9th Dist. Summit No. 25774, 2011-Ohio-5892, ¶ 11; Hightower, 2010-Ohio-1055, at ¶ 16-17; State v. Jackson, 8th Dist. Cuyahoga No. 94761, 2011-Ohio-462, ¶ 16. See also State v. Clark, 6th Dist. Lucas No. L-17-1256, 2018-Ohio-4759, ¶ 24. Indeed, it was well within the province of the trier-of-fact to determine Rhoads‘s credibility in recounting his conversation with Billiel, including the prerogative to find Rhoads not to be truthful. Moreover, it was well within the jury‘s prerogative to find Sheldon‘s denials—as evidenced in State‘s Exhibits 15 and 19—not to be truthful. See State v. Voll, 3d Dist. Union No. 14-12-04, 2012-Ohio-3900, ¶ 27.
{62} Finally, the evidence that we summarized in our sufficiency-of-the-evidence and witness-credibility analyses is weightier than Deputy Elliss testimony
{63} Therefore, we conclude that Sheldons complicity-to-attempted-aggravated-murder convictions, complicity-to-attempted-aggravated-arson conviction under Count Five of the indictment, complicity-to-possession-of-dangerous-ordnance conviction, complicity-to-violating-a-protection-order conviction, and endangering-children conviction are not against the manifest weight of the evidence.
{64} Sheldons first assignment of error is overruled.
Assignment of Error No. II
The Trial Court erred in failing to give an instruction as to the weight given to the testimony of an accomplice.
Standard of Review
{66} “Ordinarily, the trial court has discretion to decide to give or refuse a particular instruction, and an appellate court will not disturb that decision absent an abuse of discretion.” State v. Teitelbaum, 10th Dist. Franklin No. 14AP-310, 2016-Ohio-3524, ¶ 127, citing Clark v. Grant Med. Ctr., 10th Dist. Franklin No. 14AP-833, 2015-Ohio-4958, ¶ 50. See State v. Glenn, 2d Dist. Montgomery No. 27639, 2018-Ohio-2326, ¶ 20. See also State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-1419, ¶ 61; State v. Brown, 11th Dist. Lake No. 2014-L-037, 2016-Ohio-1358, ¶ 71, abrogated on other grounds, State v. Smith, 11th Dist. Ashtabula No. 2015-A-0027, 2016-Ohio-8420. However, when a jury instruction raises a question of law, we apply a de novo standard of review. See Glenn at ¶ 20. See also Teitelbaum at ¶ 127, citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 21, citing Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93 (1995). “De novo review is independent, without deference to the lower courts decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.
{67}
If an alleged accomplice of the defendant testifies against the defendant in a case in which the defendant is charged with complicity in the commission of or an attempt to commit an offense, an attempt to commit an offense, or an offense, the court, when it charges the jury, shall state substantially the following:
“The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution.
It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth.”
(Emphasis added.) See State v. Woodson, 10th Dist. Franklin No. 03AP-736, 2004-Ohio-5713, ¶ 17 (stating that “trial courts must comply with
{68} To require the jury instruction under
{69} “However, there could be a rare circumstance where an instruction is required despite the witness not being indicted for the crime of complicity.” State v. Reed, 9th Dist. Wayne No. 12CA0051, 2013-Ohio-3970, ¶ 67, citing State v. Smith, 9th Dist. Summit No. 25650, 2012-Ohio-794, ¶ 22, citing Sillett at ¶ 19. “An example of such a case might be when the accomplice is offered immunity in exchange for testimony and thus may never be indicted for the crime.” Id., citing Sillett at ¶ 19 (recognizing “that there may be rare instances in which a person who may be an accomplice is not indicted for a crime, but has motivation to lie or conceal the truth in return for their testimony. For example, an accomplice may be offered immunity in exchange for testimony and never be indicted for the crime. In such cases, there is reason for the witness[s] testimony to be viewed with the same suspicion as that of an indicted accomplice“), citing State v. Santine, 11th Dist. Ashtabula No. 97-A-0025, 1998 WL 552991, *4-5 (June 26, 1998).
Assignment of Error No. III
The Trial Court erred in allowing testimony from witnesses that were not timely disclosed to Appellants trial counsel.11
Standard of Review
{72}
Analysis
{73} The failure to comply with
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not
disclosed, or it may make such other order as it deems just under the circumstances.
{74} The prosecutions violation of
{75} In this case, Sheldon contends that the State failed to disclose five exhibits: States Exhibit 9 (audio recordings of D.S.s calls to the Hardin County Sheriffs Office); States Exhibit 10 (a copy of the protection order); States Exhibit
{76} Regardless, we see no evidence in the record that the State failed to disclose States Exhibits 9, 10, 12, or 13. (See, e.g., Doc. Nos. 11, 37). In response to Sheldons trial counsels allegations that the State failed to provide those exhibits, the State specifically denied the allegations. (See Mar. 26, 2018 Tr., Vol. I, at 128-132). Further, Sheldon admitted that he received Exhibits 12 and 13 on March 21, 2018—several days before the first day of his trial on March 26, 2018. (See Apr. 2, 2018 Tr., Vol. VI, at 1743). (See also Mar. 26, 2018 Tr., Vol. I, at 133). In response to Sheldons objection to States Exhibits 12 and 13, the State responded, “We gave it to them, we continued the trial, they had more time to run it back than we did * * *.” (Apr. 2, 2018 Tr., Vol. VI, at 1743). The rule requires the provision of specific evidence; however, the rule does not explicitly state when provision of that evidence
{77} Sheldons argument as to States Exhibit 9 lacks merit since he presented to the jury and sought admission into evidence the same evidence—Defendants Exhibit GGG. (See also Doc. No. 111). Likewise, Sheldon did not object to the State playing the portion of (the original) recordings reflected by States Exhibit 9—D.S.s calls to the Hardin County Sheriffs Office.12 (See Mar. 26, 2018 Tr., Vol. IA, at 217-219). However, at the time that the trial court was admitting the States exhibits into evidence, Sheldon objected (on another ground) to the admission of the original version of States Exhibit 9. (Apr. 2, 2018 Tr., Vol. VI, at 1740). As a remedy to his objection, Sheldon requested that the trial court exclude the portion of States Exhibit 9 containing the interview of Chrysanthus, which it did. (Id. at 1742). Accordingly, the trial court committed no error by permitting the States use of D.S.s calls to the Hardin County Sheriffs Office or by admitting the calls into evidence.
{78} As to States Exhibit 10, Sheldon objected at the time the State introduced it and at the time that the State sought to admit it into evidence. However, the trial court overruled Sheldons objections after concluding that
{79} Next, even though Sheldon objected to the introduction and admission of States Exhibit 12, his argument (on appeal) lacks merit. (Mar. 27, 2018 Tr., Vol. IIA at 545); (Apr. 2, 2018 Tr., Vol. VI, at 1743). In addition to the lack of evidence in the record reflecting that Exhibit 12 was not provided, the evidence in the record reflects that Exhibit 12 is not new evidence. Particularly, States Exhibit 12 reflects screenshots of an email from Hunter to D.S. depicting screenshots of the Facebook messenger conversation between Hunter and G.E.S. The content of the Facebook messenger conversation merely bolsters G.E.S.s, Hunters, and D.S.s version of the events. Accordingly, even assuming that the State should have provided the evidence sooner, Sheldon was not prejudiced by the evidence.
{80} Next, and notwithstanding Sheldons objection as to the introduction and admission of States Exhibit 13, Sheldons discovery-violation claim regarding States Exhibit 13 is disingenuous. Specifically, States Exhibit 13 reflects
{81} In reference to States Exhibit 84, the only argument that Sheldon presents on appeal is that he was prejudiced by the States late disclosure because he “was given a short period in order to review a video interview that was previously undisclosed.” (Appellants Brief at 17). In other words, Sheldon failed to make an argument with respect to whether the State willfully failed to disclose the interview of T.S.; whether the disclosure of the evidence would have changed his trial preparation; or as to the specific prejudice he suffered as a result of the late disclosure as he is required to do. See Dougherty, 1996 WL 517300, at *6; App.R. 16. Notwithstanding Sheldons failure to present a proper argument on appeal, the trial court exercised its discretion by inquiring into the circumstances of the discovery violation and imposed the least severe sanction as was consistent with the purpose of the rules of discovery. Specifically, Sheldon notified the trial court of the discovery violation prior to the start of trial and objected to the State calling T.S. (the subject of the interview contained on States Exhibit 84) as a witness. (Mar. 26, 2018 Tr., Vol. I, at 135); (Mar. 26, 2018 Tr., Vol. IA, at 245-246). After
{82} In sum, Sheldon contends that “it seems the sheer number of exhibits and testimony that was [sic] not properly disclosed, but was [sic] used at trial would have to prejudice [him] in violation of the rules of discovery.” (Appellants Brief at 17). Importantly, there is no automatic presumption of prejudice when one or more discovery-rule violations occurs; rather, a defendant has an affirmative burden of demonstrating how he was prejudiced by the discovery-rule violation—that is, that the outcome of his trial would have been different. See State v. Thomas, 7th Dist. Belmont No. 17 BE 0028, 2018-Ohio-3768, ¶ 32; State v. Green, 8th Dist. Cuyahoga No. 81232, 2003-Ohio-1722, ¶ 20; State v. Wangler, 3d Dist. Allen No. 1-11-18, 2012-Ohio-4878, ¶ 108.
{83} Considering the nature of the evidence of which Sheldon contends formed the basis of a discovery-rule violation, we see no indication that any of the
{84} Sheldons third assignment of error is overruled.
{85} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
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