State of Ohio, Plaintiff-Appellee, v. Trevor A. Teets, Defendant-Appellant.
Case No. 16CA3
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
RELEASED: 08/08/2017
[Cite as State v. Teets, 2017-Ohio-7372.]
Sadler, J.
DECISION AND JUDGMENT ENTRY
Kort Gatterdam and Erik P. Henry, Carpenter Lipps & Leland LLP, Columbus, Ohio, for appellant.
Judy C. Wolford, Pickaway County Prosecuting Attorney, Circleville, Ohio, for appellee.
Sadler, J.
{¶1} Defendant-appellant, Trevor A. Teets, appeals from the judgment entry of the Pickaway County Court of Common Pleas finding appellant guilty of murder with specification, involuntary manslaughter with specification, and domestic violence arising from the death of his ex-girlfriend. For the following reasons, we affirm the decision of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶2} On February 6, 2015, a Pickaway County Grand Jury indicted appellant on one count of murder, in violation of
{¶3} Prior to trial, appellant filed a motion to determine whether he was competent to stand trial and a motion for leave to plead not guilty by way of insanity. The trial court ordered an evaluation of competency and sanity through Netcare Forensic Center (“Netcare“), and a hearing was held on the matter. At the hearing, defense counsel indicated that appellant did not agree with the results of the Netcare evaluation and would not stipulate to the report, and requested another opinion. The trial court asked defense counsel to “specifically, in writing, indicate to [the court] what it is that you have issues with with respect to the [Netcare] report” and stated that the trial court would take it under advisement. (Tr. at 13.) Appellant filed a motion for a second examination, asserting that appellant is entitled to a hearing, pursuant to
{¶4} On November 16, 2015, рlaintiff-appellee, State of Ohio, believing the evidence did not support a sufficient reason to instruct the jury on voluntary
{¶5} Appellee commenced its case-in-chief by calling Ariana Smith as an eyewitness. Smith testified that she knew appellant through work and that appellant had indicated in some text messages to her that he had issues with his ex-girlfriend, Alicia Salyers, who had moved out of their apartment but remained on the lease. Smith had met Salyers once while at work. Smith was in the apartment with appellant at about 1:45 p.m. on Sunday, February 1, 2015, when Salyers arrived to drop off some rent money and give a key back to appellant. Salyers and appellant had a conversation about rent, in which Smith heard appellant say he wanted money and Salyers reply she did not have all of it, and appellant ask for the key. After about two to three minutes, Smith exited the apartment to address problems with her car, which was about four or five vehicles away from the entrance to the apartment. Smith opened her hood to check her car‘s oil and otherwise tended to her car for approximately ten minutes. At that point, according to Smith, she saw appellant walk out of the apartment, head to Salyers’ car, and proceed to hit the driver‘s side window of Salyers’ car with a shotgun. Salyers came out of the apartment and walked around appellant. Within a few seconds of appellant banging the shotgun against Salyers’ car window, Smith walked toward appellant but did not make it past her own driver‘s side door before she heard the shotgun go off and saw Salyers fall to the ground. Smith testified that from where she was standing she saw more of Salyers, who was taller than appellant, and she did not see appellant lift the shotgun to shoot. After the shot, appellant backed up a little bit, dropped the gun, and went into the apartment. Smith walked over to Salyers and called 911. The 911 call recording was
{¶6} On cross-examination, Smith testified that she was aware appellant had guns in the apartment upstairs, and to the best of her knowledge, he had not moved the guns downstairs prior to Salyers coming over. Smith added that appellant‘s brother was also in the living room when Salyers arrived at the apartment. She described the conversation between Salyers and appellant as starting out calmly but that Salyers indicated she was not going to give the key to the apartment back to appellant, and, at some point, Smith felt uncomfortable enough with the conversation to leave the apartment. Smith said she was checking her car and text messaging when she saw appellant come out of the apartment with the shotgun in his hands and Salyers follow “[r]ight after” him. (Tr. at 135.) Smith testified that she did not hear any yelling or fighting at that point in time but agreed with the defense attorney‘s characterization that “they were pretty damn mad at each other” when appellant was hitting Salyers’ car window with the butt of the shotgun. (Tr. at 136.) Smith clarified that Salyers walked past appellant between the two cars and turned back toward appellant, facing the apartment. Smith believed Salyers was approximately a couple feet away from appellant when they were standing between the two cars. Smith confirmed that appellant had the shotgun but that she did not see his hands, did not see him transfer the weapon‘s position, and did not see Salyers reach for the gun.
{¶7} On redirect, when asked whether she tried to walk over and stop appellant, Smith testified that she did not get very far and instead only took a few steps toward
{¶8} Appellee then called Sara Hempstead, a police officer for the Village of Ashville Police Department. Hempstead testified that she was dispatched to appellant‘s apartment at approximately 2:00 p.m. on February 1, 2015, on a report of shots fired and was the first officer to arrive at the scene. When she got out of her cruiser, appellant was standing at the front door of the apartment. According to Hempstead, appellant walked directly and calmly toward Hempstead and “[b]efore [she] could say anything to him he held his hands straight out in front of him, put his wrists together and stated, ‘take me to prison, I killed her.’ ” (Tr. at 151-52.) Hempstead put appellant in handcuffs, passed him to another officer who had arrived at the scene, and proceeded to where Salyers’ body was located between the cars. She observed a shotgun lying on the ground a couple feet from Salyers. Hempstead checked Salyers fоr signs of life and then secured the crime scene. About 20 minutes after her arrival, it started to drizzle rain, which turned to steady rain throughout the remainder of her time there. On cross-examination, Hempstead testified that about 3:30 p.m., Detective Phil Roar, an investigator for the city of Circleville Police Department, arrived at the scene and stated that he was instructed to place tarps over the firearm and the body.
{¶9} Dr. John Ellis, Pickaway County Coroner, testified to being called to the scene and finding a deceased female, Salyers, lying in the parking lot with what appeared to be a gunshot wound to her head. At some point, Dr. Ellis rolled Salyers to get a better
{¶10} Todd Fortner, a special agent with the Ohio Attorney General‘s Office, Bureau of Investigation (“BCI“), testified to assisting the city police department with investigating a suspected homicide. According to Fortner, he advised Roar on the phone that it was best to cover some of the evidence to protect them from the elements. Fortner arrived at the scene around 4:15 p.m. Once there, he conducted an initial assessment, including completing a schematic of the area, and began processing and photographing the scene. Fortner identified the weapon involved as a Mossberg, Model 935 semiautomatic 12-gauge shotgun, which holds three shells. Fortner collected two shells from the shotgun and located one fired-shot shell casing on the ground in the parking lot to the right of the shotgun. Fortner observed a key fob and keys lying next to Salyers and testified that detectives were able to ascertain the keys belonged to Salyers. Fortner additionally executed a search warrant for appellant‘s apartment.
{¶11} On cross-examination, Fortner testified that he could not tell the direction of blood splatter from the shotgun wound impact and did not observe any obvious defensive injuries such as wounds to the hands or arms. Fortner agreed that the shotgun was wet, which possibly could wash away any fingerprints or DNA evidence that might be on the weapon and preclude testing. Defense counsel asked what testing was done as a part of
{¶12} On redirect, Fortner testified that although he was not able to determine directionality based on blood splatter, he formed an opinion of the direction of the shot based on the location of Salyers, the gun, the fired-shot shell casing, and pellets. Appellee then asked Fortner to identify for the record a report from the DNA section of the BCI laboratory (“BCI report“) regarding several items of appellant‘s clothing and the shotgun. Fortner read the conclusion of the BCI report and noted that Salyers’ blood was present on appellant‘s shirt and that no DNA profile was found on the trigger or inside the barrel of the shotgun, which he stated is not unusual. On cross-examination, defense counsel asked Fortner more about the BCI report. Fortner testified that he is not a forensic scientist and did not do any of the testing but stated, bаsed on the report, he could say with certainty that presumption, as well as conclusionary, testing was conducted.
{¶13} Detective Phil Roar of the Circleville Police Department testified to receiving a call that a shooting occurred and responding to the scene. Roar called in BCI and the coroner, spoke to Hempstead, and helped to further secure the area. When asked whether he had ever made any contact with appellant, Roar responded that in the Pickaway County Sheriff‘s Office he sat down with appellant and read him his rights. Appellant indicated that he wanted an attorney, and, therefore, the interview stopped. Roar confirmed that no statement was gained from appellant. On cross-examination,
{¶14} Dispatcher Travis Adkins, a corporal with the Pickaway County Communications Center, testified that on February 1, 2015 at about 2:00 p.m., he answered a phone call from appellant on the regular, non-emergency line. A recording of that call was played for the jury. In it, appellant states: “Hi! I live at * * * and I just killed somebody.” (Tr. at 212.) When asked what he meant by that statement, appellant responded, “I shot ‘em,” then identifies the victim as Salyers and states “she‘s my ex-girlfriend and we got in a fight, you know. So I have mental issues and she pushed me to the edge and I snapped. * * * There‘s a lot of people here. I‘m going crazy. I killed her. I‘m getting close to my breaking point, nobody would help me.” (Tr. at 213-14.) Appellant explains on the call that Salyers lived with him until they got in a fight and she moved out, and again repeats “[s]he‘s dead. I shot her in the head.” (Tr. at 215.)
{¶15} Thereafter, appellee introduced exhibits, including the recording of Smith‘s 911 call, the recording of appellant‘s call to police, the coroner‘s report, the lab report from BCI, a photograph of the shotgun with Salyers’ covered body visible between the cars, a photograph of Salyers’ entire body between the cars, a close up of Salyers between the cars, a front view of Salyers, and several photographs of the shotgun and shells. Appellee agreed that it would not seek to admit Smith‘s written statement to police. Appellee then rested its case. Appellant moved for a
{¶16} Dr. Ellis confirmed that Salyers was 5‘7” and 220 pounds. Dr. Ellis testified that the stippling on Salyers’ face was consistent with a gunshot from a very close proximity but not touching the skin. He explained that the shot entrance was located on the right side of Salyers’ face. Specifically, “the shotgun charge pellets went from the front of her face out the back, and then [from her] left to right” in an upward, instead of straight, direction. (Tr. at 230.) Dr. Ellis agreed that his findings would be consistent with a shot from “somewhere below.” (Tr. at 230.) Dr. Ellis further confirmed that Salyers had an injury to her left hand consistent with shotgun pellet damage. She also had suet on her hand.
{¶17} Thereafter, the defense rested. Appellant requested a voluntary manslaughter instruction. The trial court denied appellant‘s request, finding that no evidence showed Salyers did anything to cause sufficient serious provocation to justify the use of deadly force. Neither party lodged objections to the jury instructions.
{¶18} The jury found appellant guilty of all charges. The trial court merged the involuntary manslaughter and domestic violence counts with the murder count and sentenced appellant to prison for 15 years to life on the murder count with a mandatory 3 additional consecutive years on the gun specification, for a total of 18 years to life. Appellant filed a timely appeal to this court.
II. ASSIGNMENTS OF ERROR
{¶19} Appellant presents five assignments of error:
[1.] APPELLANT‘S RIGHTS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND MIRANDA V. ARIZONA, 384 U.S. 436 (1966) WERE VIOLATED WHEN EVIDENCE OF
APPELLANT‘S POST-MIRANDA SILENCE WAS ADMITTED INTO EVIDENCE DURING THE STATE‘S CASE-IN-CHIEF. [2.] THE ERRONEOUS ADMISSION OF EVIDENCE DEPRIVED APPELLANT OF DUE PROCESS AND OF A FAIR TRIAL CONTRARY TO THE UNITED STATES AND OHIO CONSTITUTIONS.
[3.] THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS AND OF A FAIR TRIAL CONTRARY TO THE U.S. AND OHIO CONSTITUTIONS BY FAILING TO CHARGE THE JURY ON VOLUNTARY MANSLAUGHTER.
[4.] TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT‘S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
[5.] THE TRIAL COURT VIOLATED APPELLANT‘S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION BASED ON INSUFFICIENT EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT‘S RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.
III. DISCUSSION
{¶20} For clarity of discussion, we will consider appellant‘s assignments of error out of оrder. We begin by reviewing appellant‘s second assignment of error.
A. Admission of Evidence and Confrontation Clause Issue (Second Assignment of Error)
{¶21} Under the second assignment of error, appellant contends the trial court erred in admitting: (1) cumulative, repetitious, and prejudicial photographs of the deceased; (2) permitting Smith to read her written statement without any proper
{¶22} Generally, an appellate court reviews a trial court‘s admission or exclusion of evidence for an abuse of discretion. State v. Boyd, 4th Dist. No. 09CA14, 2010-Ohio-1605, ¶ 27. However, because at trial appellant did not object to the admission of evidence challenged here, he has waived all but plain error review on appeal. State v. Hall, 4th Dist. No. 13CA3391, 2014-Ohio-2959, ¶ 32. See also State v. Smith, 4th Dist. No. 15CA3686, 2016-Ohio-5062, ¶ 74 (applying plain error analysis to confrontation clause issue that defendant did not object to at trial). “An alleged error is plain error only if the error is ‘obvious,’ and ‘but for the error, the outcome of the trial clearly would have been otherwise.’ ” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 108, quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002), and State v. Long, 53 Ohio St.2d 91 (1978), paragraph two of the syllabus. Notice of plain error “is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.
1. Admitting Photographs of the Deceased
{¶23} “When considering the admissibility of photographic evidence under
{¶24} A trial court does not commit plain error in admitting a gruesome crime scene photograph if, for example, the photograph is probative of intent or helps to illustrate the manner and circumstances of the victim‘s death, including providing a perspective of the victim‘s wounds. Lang at ¶ 140, 142. See, e.g., State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, ¶ 52 (finding trial court did not commit plain error in admitting nine photographs depicting a deceased victim, including showing the same wounds from different angles or distances, because the photographs helped the jury appreciate the nature of the crimes, illustrated testimony, and by portraying the wounds helped to prove the defendant‘s intent and the lack of accident or mistake); White at ¶ 52 (finding trial court did not err in admitting photographs of the victim at the crime scene that showed pieces of human tissue and other matter where the photographs displayed how her body was positioned and helped the jury to understand how the victim‘s head must have been oriented at the time the gun fired). Furthermore, a trial court does not err by allowing the prosecutor to publish certain images multiple times, where the prosecution is “reasonably employing the images to illustrate its argument and facilitate witness testimony.” State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, ¶ 60.
{¶25} Here, during its case-in-chief, appellee presented a total of ten photographs from the scene of the crime. Appellant takes issues with four of those photographs: Exhibits 1, 2, 5, and 6. Exhibit 1 is a photograph depicting a shotgun lying partially on a sidewalk in front of two parked cars and a white sheet presumably covering a body located between the cars. Aside from a corner of what appears to be jeans, a body is not
{¶26} Exhibit 1, in which Salyers’ body is not visible underneath the white cover and depicts the body in relation to the shotgun and cars, is not gruesome and was properly admitted. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 21. As to Exhibits 2, 5, and 6, photographs which depict Salyers’ uncovered body, each photograph shows something the other does not. Each photograph is a different perspective of Salyers’ body, the position of her within the crime scene, and the head wound. As such, Exhibits 2, 5, and 6 were not cumulative or repetitive to each other. State v. Campbell, 90 Ohio St.3d 320, 345 (2000). Furthermore, the photographs at issue help to illustrate the
2. Permitting Smith to Read Her Prior Written Statement to the Jury
{¶27} Appellant argues that under
Who may impeach. The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to
Evid.R. 801(D)(1)(a) ,801(D)(2) , or803 .
{¶28} The record does not clarify what rule appellee proceeded under in order for Smith to read her prior statement to police out loud in front of the jury. In the questioning preceding Smith reading her statement, appellee concentrated on what action Smith took after she saw appellant and Salyers exit the apartment with the shotgun and why. Appellee seemed to take issue with Smith testifying on cross-examination that appellant and Salyers were not yelling or fighting when they first exited the apartment and her testimony on redirect that she nonetheless started toward them “[t]o try to find out what was going on.” (Tr. at 143.) Appellee asked Smith whether she recognized a statement that she wrote to police after the incident and whether she recalled a particular line in the statement where she stated that she walked over to try to stop appellant. Smith replied yes to each inquiry, and appellee asked “[w]hat were you trying to stop?” (Tr. at 145.) When Smith replied that she saw appellant with the shotgun, appellee asked Smith to
{¶29} We agree with appellant that permitting Smith to read her prior statement to police was in error in this case. We find no inconsistent statement by Smith or any showing of surprise and affirmative damage to support appellee‘s impeachment of its own witness to support
{¶30} Nevertheless, appellant has not demonstrated plain error in this instance. Appellant points to Smith‘s written statement to police that she tried to stop appellant, presumably in an attempt to show that no argument occurred at that point, and Smith‘s written statement that appellant shot Salyers as prejudicial to appellant. However, the jury heard the 911 call Smith made in which she stated “[t]hey were fighting аnd he shot her,” and appellant himself made the same statement in his call to police. (Tr. at 122.) Appellant does not challenge admission of those calls in this appeal. As such, appellant has not demonstrated that but for the error, the outcome of the trial clearly would have
3. Testimony Regarding and Admission of the DNA Report
{¶31} Appellant argues that permitting Fortner to testify regarding the BCI report violated appellant‘s confrontation rights guaranteed by the Sixth Amendment. “The Sixth Amendment to the United States Constitution provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.’ ” State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, ¶ 11. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Crawford v. Washington, 541 U.S. 36, 51 (2004). Under the Confrontation Clause, “[a] witness‘s testimony against a defendant is * * * inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.” Melendez-Diaz at 309.
{¶32} The Confrontation Clause applies only to testimonial statements. Generally, testimonial statements are those made for ” ‘a primary purpose of creating an out-of-court substitute for trial testimony.’ ” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 40, quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011). Generally, a state forensic analyst‘s laboratory report prepared for use in a criminal prosecution is testimonial evidence subject to the demands of the Cоnfrontation Clause. State v. Jackson, 5th Dist. No. 2012-CA-20, 2012-Ohio-5548, ¶ 53. “[W]here an expert witness‘s testimony constitutes his/her own original observations and opinions, there is no violation
{¶33} “A criminal defendant may waive his right to confront a witness” in certain circumstances. State v. Woods, 4th Dist. No. 09CA3090, 2009-Ohio-6169, ¶ 23, citing Melendez-Diaz at 313, fn. 3, and Pasqualone at ¶ 14 (holding that a defense attorney may waive a client‘s Sixth Amendment right to confrontation and admitting a laboratory report without its author‘s testimony, pursuant to
{¶34} Here, it is undisputed that Fortner, a BCI investigator who assisted in collecting evidence, did not conduct the analysis contained in the BCI report himself and was not otherwise an expert on that issue. Nevertheless, defense counsel questioned
{¶35} To the extent that Fortner‘s testimony constitutes his own observations and opinion, there is no Confrontation Clause violation. Smith at ¶ 81. Furthermore, appellant fails to address or provide legal support for an error occurring despite defense counsel initiating the questioning alleged to violate appellant‘s right to confront witnesses against him. As such, appellant has not met his burden to affirmatively demonstrate error on appeal. Watkins v. Holderman, 10th Dist. No. 11AP-491, 2012-Ohio-1707, ¶ 11; see also
{¶36} Accordingly, appellant‘s second assignment of error is overruled.
B. Doyle1 Violation (First Assignment of Error)
{¶37} Under the first assignment of error, appellant contends that a “Doyle violation” implicating his constitutional right to a fair trial and due process occurred when evidence of appellant‘s post-Miranda2 silence was admitted into evidence during appellee‘s case-in-chief. (Appellant‘s Brief at 13.) For the following reasons, we disagree.
{¶38} An appellate court generally reviews a constitutional challenge de novo. State v. Neal, 4th Dist. No. 15CA1, 2016-Ohio-64, ¶ 36, appeal not allowed, 145 Ohio St.3d 1471, 2016-Ohio-3028; State v. Angus, 4th Dist. No. 15CA3507, 2017-Ohio-1100, ¶ 8. Because at trial appellant did not object to the alleged offending testimony, he has waived all but plain error review on appeal. Neal. As stated previously in this opinion, “[a]n alleged error is plain error only if the error is ‘obvious,’ and ‘but for the error, the outcome of the trial clearly would have been otherwise.’ ” Lang at ¶ 108, quoting Barnes at 27, and Long at paragraph two of the syllabus. “The defendant bears the burden of proof on the issue.” Neal at ¶ 36. Notice of plain error “is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Long at paragraph three of the syllabus.
{¶39} The Fourth District Court of Appeals recently explained the applicable law regarding Doyle violations as follows:
The Fifth Amendment to the United States Constitution, which is applicable to the states through the Fourteenth
“Once a person invokes his or her Fifth Amendment right to remain silent, the State cannot use the person‘s silence [either in pre-arrest or post-arrest circumstances] as substantive evidence of guilt in its case-in-chief.” Bennett at ¶ 63, citing Wainwright, 474 U.S. at 295 (post-arrest, post-Miranda silence is inadmissible as substantive evidence of guilt in the state‘s case-in-chief), and Leach at syllabus (“Use of a defendant‘s pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination“); see also State v. Perkins, 3d Dist. Hancock No. 5-13-01, 2014-Ohio-752, ¶ 49, citing Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and Leach at ¶ 18 (“Evidence submitted by the State regarding a defendant‘s exercise of his right to remain silent during an interrogation violates the Due Process Clause of both the state and federal constitutions“). To allow the “[u]se of * * * silence in the state‘s case-in-chief would force defendants either to permit the jury to infer guilt from their silence or surrender their right not to testify and take the stand to explain their prior silence.” Leach at ¶ 31.
{¶40} In order to determine whether testimony is being used as substantive evidence in violation of Doyle, an appellate court evaluates “whether the prosecutor‘s
{¶41} In cases where no objection was lodged against the alleged offending testimony or comment, a Doyle violation is not plain error “per se” demanding automatic reversal. State v. Hill, 92 Ohio St.3d 191, 203 (2001). Rather, as outlined in the plain error standard stated above, a reviewing court must examine the error in light of all the evidence properly admitted at trial and determine whether the jury would have convicted the defendant even if the Doyle violation had not occurred. Id.
{¶42} Here, during appellee‘s case-in-chief, the following exchange occurred between the state prosecutor and Roar:
Q. Did you ever make any contact with the defendant?
A. I did make contact with him in the Pickaway County Sheriff‘s Office. I don‘t recall the exact time I sat down with him, but Detective Strawser from the Pickaway County Sheriff‘s Office and I sat down with him, read him his rights.
He indicated he wanted an attorney and therefore the interview stopped. Q. So no statement was gained from the defendant by you, correct?
A. That is correct.
(Tr. at 204.) The prosecutor made no other reference of appellant‘s post-Miranda assertion of silence.
{¶43} This exchange appears to fall short of the test for whether a Doyle violation has occurred as set forth in Angus and Froe. The exchange between the prosecutor and the detective is limited to one question in which the prosecutor confirms appellant did not provide a statement to detectives, and the prosecutor did not comment or stress to the jury an inference of guilt from appellant‘s silence as a basis of conviction. On the whole, this exchange seems more “isolated” rather than “extensive.” Froe at ¶ 62; Angus at ¶ 16. As a result, we cannot say that appellant has demonstrated that an obvious error occurred.
{¶44} Regardless, appellant has not demonstrated that but for the alleged Doyle violation, the outcome of the trial clearly would have been otherwise. To this point, appellant argues that Ohio courts have found plain error in cases involving Doyle violations, particularly where the evidence does not overwhelmingly support the conviction. Furthermore, appellant believes the testimony here is particularly egregious because he did not testify and the testimony “left the impression that [appellant‘s] attorneys came up with his defense, or otherwise [appellant] would have told law enforcement what happened.” (Appellant‘s Brief at 12.)
{¶46} Accordingly, appellant‘s first assignment of error is overruled.
C. Sufficiency and Manifest Weight (Fifth Assignment of Error)
{¶47} Under the fifth assignment of error, appellant challenges the guilty verdicts as supported by insufficient evidence and as against the manifest weight of evidence. We disagree.
{¶48} Sufficiency of the evidence is a legal standard that tests whether the evidence is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether the evidence is legally sufficient to support a verdict is a question of law, not fact. Id. In determining whether the evidence is legally sufficient to support a conviction, ” ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most
{¶49} In a sufficiency of the evidence inquiry, appellate courts do not assess whether the prosecution‘s evidence is to be believed but whether, if believed, the evidence supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency of evidence); State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that “in a sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the state‘s witnesses testified truthfully and determines if that testimony satisfies each element of the crime“). Further, “the testimony of one witness, if believed by the jury, is enough to support a conviction.” State v. Strong, 10th Dist. No. 09AP-874, 2011-Ohio-1024, ¶ 42.
{¶50} “Even though supported by sufficient evidence, a conviction may still be reversed as being against the manifest weight of the evidence.” State v. McCombs, 10th Dist. No. 15AP-245, 2015-Ohio-3848, ¶ 3, citing Thompkins at 387. “While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence‘s effect of inducing belief.” State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 38.
{¶52} Appellant was found guilty of murder, in violation of
{¶53} Appellant first challenges evidence that he intended to kill Salyers. Appellant specifically asserts that no direct evidence exists to prove he actually pulled the trigger or had his hands on the trigger and that the surrounding circumstances of the
{¶54} An act is committed “purposely” when it is a person‘s specific intention to cause a certain result.
{¶55} Here, appellee offered appellant‘s call to police in which he stated that he got into a fight with his ex-girlfriend, snapped, and shot and killed her, Hempstead‘s testimony that appellant immediately approached her with his hands straight out and wrists together and stated “take me to prison, I killed her,” Smith‘s call to 911 in which she told police that appellant and Salyers were fighting and appellant shot Salyers, Smith‘s testimony at trial that she saw appellant hit Salyers’ car with the shotgun, witnessed
{¶56} In addition, we disagree with appellant‘s contention that the record shows that the more likely scenario indicates the shotgun firеd accidentally. While Salyers followed appellant while he was holding a shotgun, evidence shows that the fight seemed to escalate at the car, and appellant‘s own words and actions following Salyers’ death greatly undermine appellant‘s argument that he did not purposely kill Salyers. Likewise, evidence of the shotgun‘s length, Salyers’ and appellant‘s close proximity to each other, and the upward shot trajectory is nonetheless consistent with appellant‘s purposely killing Salyers, considering Salyers’ height and the aforementioned call and behavior of appellant after shooting Salyers. Overall, after reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, we cannot say 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.
{¶57} Appellant next asserts that no evidence shows that Salyers was “living as a spouse” to meet the statutory relationship element for domestic violence. (Appellant‘s Brief at 32.) Pursuant to
{¶58} Accordingly, appellant‘s fifth assignment of error is overruled.
D. Voluntary Manslaughter Instruction (Third Assignment of Error)
{¶59} Under the third assignment of error, appellant contends that the trial court erred in failing to provide the jury with an instruction on voluntary manslaughter. Appellant originally had been indicted on a voluntary mаnslaughter charge, which was later dismissed by the trial court at appellee‘s request. After the parties rested their cases at trial, appellant requested an instruction on voluntary manslaughter, which the trial court denied. Appellant did not object to the instructions ultimately submitted to the jury.
{¶60} Generally, an appellate court reviews a trial court‘s refusal to give a requested jury instruction for an abuse of discretion under the facts and circumstances of the case. Jennings at ¶ 59; State v. Clay, 4th Dist. No. 11CA23, 2013-Ohio-4649, ¶ 43, appeal not allowed, 138 Ohio St.3d 1417, 2014-Ohio-566 (“A trial court has broad
{¶61} The trial court must “fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus. Additionally, a trial court may not omit a requested instruction, if it is ” ’ “a correct, pertinent statement of the law and [is] appropriate to the facts.” ’ ” Clay at ¶ 43, quoting State v. Lessin, 67 Ohio St.3d 487, 493 (1993), quoting State v. Nelson, 36 Ohio St.2d 79 (1973), paragraph one of the syllabus.
{¶62} Ohio law codifies the crime of voluntary manslaughter in
{¶63} For provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control. Id. at 635. Generally, “[w]ords alone will not constitute reasonably sufficient provocation to incite the use of deadly force.” Id. at paragraph two of the syllabus.
{¶64} In this case, the trial court determined that no evidence indicated Salyers did anything to cause sufficient serious provocation to justify the deadly use of force. We agree. Evidence adduced at trial showed that in the apartment, Salyers and appellant had a tense conversation about payment of rent and keys to the apartment, that approximately ten minutes later, Salyers and appellant exited the apartment, and appellant hit Salyers’ car with a shotgun while Salyers followed and faced him with keys in hand. At that point, Smith agreed with the characterization that they were “pretty damn mad at each other.” (Tr. at 136.) However, nothing in the record suggests that Salyers seriously provoked appellant in a manner which would justify the use of deadly force. Furthermore, appellant does not provide, nor do we find, any authority for using a grand jury‘s indictment on a charge as a basis for a jury instruction, rather than the evidence actually admitted at trial. Under any reasonable view of the evidence and construing all the evidence in a light most favorable to appellant, a reasonable jury could not find that appellant had established sufficient provocation. As a result, no jury instruction on voluntary manslaughter should have been given, and the trial court did not err, let alone commit plain error, in failing to do so. Id. at 638.
E. Ineffective Assistance of Counsel (Fourth Assignment of Error)
{¶66} Under the fourth assignment of error, appellant contends that trial counsel rendered ineffective assistance of counsel. For the following reasons, we disagree.
{¶67} “The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial [court] cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). “To establish a claim of ineffective assistance of counsel, a defendant must show that the performance of trial counsel was deficient and that the deficient performance prejudiced him.” State v. Frye, 10th Dist. No. 14AP-988, 2015-Ohio-3012, ¶ 11, citing Strickland at 687.
{¶68} To demonstrate that counsel‘s performance was deficient, the defendant must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. State v. Canada, 10th Dist. No. 14AP-523, 2015-Ohio-2167, ¶ 89; State v. Murphy, 91 Ohio St.3d 516, 524 (2001) (“To prevail on such a claim, a defendant must show that counsel‘s actions were professionally unreasonable.“). In doing so, the defendant must overcome the strong presumption that counsel‘s performance was adequate or that counsel‘s actions might be considered sound trial strategy. Canada at ¶ 90; Maxwell at ¶ 180, quoting State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 116 (” ‘Debatable trial tactics generally do not constitute ineffective assistance of counsel.’ “).
{¶70} The failure to make either the deficiency or prejudice showing defeats a claim of ineffective assistance of counsel. Frye at ¶ 11, citing Strickland at 697. Thus, “a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland at 697.
{¶71} First, appellant contends that his trial counsel was ineffective for failing to object to testimony of appellant exercising his Miranda rights and failing to object to the evidentiary errors argued in his second assignment of error. A trial counsel‘s failure to object is generally viewed as trial strategy and does not establish ineffective assistance. State v. Roby, 3d Dist. No. 12-09-09, 2010-Ohio-1498, ¶ 44; State v. Eason, 7th Dist. No. 02 BE 41, 2003-Ohio-6279, ¶ 133 (finding trial counsel‘s failure to object to a potential Doyle violation fell within the gambit of trial strategy).
{¶72} Regarding appellant‘s failure to object to testimony of appellant exercising his Miranda rights, in appellant‘s first аssignment of error we previously determined that
{¶73} Regarding trial counsel failing to object to the evidentiary errors argued in his second assignment of error, we have already determined that admission of the photographs of Salyers was not in error, and, therefore, trial counsel‘s performance was not deficient for not objecting to this evidence. Turnbow. We also previously determined appellant failed to demonstrate that testimony about and admission of the BCI report was in error. Our review of the transcript shows that defense counsel initiated the questioning about the BCI report, apparently in pursuit of casting doubt on specific intent by way of physical findings and the possible compromise of favorable evidence by the rain. In other words, trial counsel‘s failure to object to the BCI report appears to have been a trial strategy and, as such, does not render that decision ineffective. Roby. Finally, although we agreed with appellant that permitting Smith to read her prior statement to police for the jury was in error, trial counsel‘s decision to not object may have also fallen within trial
{¶74} Second, appellant argues that trial counsel was ineffective for failing to effectively request a second evaluation of competency. We initially disagree with appellant‘s argument as against the record. Appellant contеnds the trial court denied appellant‘s request for a second evaluation of competency “[a]s a result” of defense counsel‘s failure to abide by the trial court‘s instruction to specifically articulate the deficiencies with the first report regarding competency and the reasons why a second evaluation was necessary. (Appellant‘s Brief at 24.) Our review of the trial court decision on competency shows that its decision does not reference trial counsel‘s failure to comply with its request for specific reasons but, rather, considers the testimony of Dr. Kevin Edwards, the clinical psychologist at Netcare, states that the right to another evaluation is not automatic, and notes that appellant is not indigent and could have presented his own examiner. As a result, appellant has not proven that trial counsel was deficient in this matter. Furthermore, appellant has not shown a reasonable probability that but for trial counsel‘s alleged error in addressing the second hearing regarding competency, the trial would have been different. Based on the trial court‘s reasoning, we have no reason to believe that had counsel requested the second evaluation of competency in the manner prescribed by the trial court, the trial court would have granted the request. In addition, results of the second evaluation of competency are conjectural and, as such, do not
{¶75} Third, appellant contends his trial counsel was ineffective for failing to comply with
{¶76} “Generally, the decision whether to call a witness ‘falls within the rubric of trial strategy and will not be second-guessed by a reviewing court.’ ” In re B.C.S., 4th Dist. No. 07CA60, 2008-Ohio-5771, ¶ 18, appeal not allowed, 121 Ohio St.3d 1427, 2009-Ohio-1296, quoting Treesh at 490. As further stated in B.C.S.:
In many criminal cases, trial counsel‘s decision not to seek expert testimony ‘is unquestionably tactical because such an expert might uncover evidence that further inculpates the defendant.’ ” State v. Krzywkowski, Cuyahoga App. Nos. 83599, 83842, and 84056, 2004-Ohio-5966, ¶ 22, quoting State v. Glover, Clermont App. No. CA2001-12-102, 2002-Ohio-6392, ¶ 95; see, also, State v. Samatar, Franklin App. No. 03AP-1057, 2004-Ohio-2641, ¶ 12. “Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel‘s perspective at the time.” In re: J.B., Butler App. No. CA2005-06-176, CA2005-07-193, CA2005-08-377, 2006-Ohio-2715, ¶ 18, citing State v. Gapen, Montgomery App. No. 20454, 2005-Ohio-441, ¶ 30.
{¶77} In this case, appellant speculates that the
{¶78} Fourth, appellant contends his trial counsel was ineffective for failing to request an aсcident instruction. Generally, the failure to request jury instructions is purely a matter of trial tactics and will not be disturbed on review. State v. Herrington, 9th Dist. No. 25150, 2010-Ohio-6426, ¶ 11. Furthermore, accident is an argument that supports a conclusion that the state has failed to prove the intent element of the crime beyond a reasonable doubt. Clay at ¶ 19. Thus, where the trial court properly instructs the jury on the requisite mental state, which by definition eliminates the defendant‘s conduct as a mere accident, and the jury necessarily concludes the mental state is met in order to convict the defendant, the defendant cannot show that trial counsel‘s alleged deficiency in
{¶79} Here, we note that although appellant frames the argument as an accident on appeal, at trial defense counsel repeatedly described its theory of the case as appellee‘s failure to provide evidence of purposeful killing; defense counsel avoids explicitly characterizing the incident as an accident. As such, trial counsel‘s decision to not request an instruction on “accident” may have been a part of trial strategy. Moreover, the trial court instructed the jury that the definition of “purposely” includes “to do an act purposely is to do it intentionally and not accidentally.” (Tr. at 260; Jury Instructions at 3.) Following these instructions, in finding appellant purposely caused the death of Salyers, the jury apparently rejected the idea of an accident. On these facts, appellant has not demonstrated any alleged error in not requesting a jury instruction on accident prejudiced him.
{¶80} Finally, appellant argues that the cumulative effect of trial counsel‘s errors in this case resulted in appellant being denied a fair trial. However, as provided above, appellant did not demonstrate that trial counsel‘s conduct was professionally unreasonable—that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment—so as to rise to the level of deficient performance. Neither did appellant demonstrate that he was prejudiced by any of the alleged errors. Therefore, appellant‘s argument regarding cumulative error lacks merit.
{¶81} Accordingly, appellant‘s fourth assignment of error is overruled.
IV. CONCLUSION
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonаble grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
* Tyack, J. & Brown, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
* Lisa L. Sadler, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
* Lisa L. Sadler, George G. Tyack, and Susan D. Brown, Judges of the Tenth Appellate District, sitting by assignment of the Supreme Court of Ohio in the Fourth Appellate District.