State v. ThomasState v. Thomas
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 2, 2023
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, Carl J. Mazzone and Morgan Austin, Assistant Prosecuting Attorneys, for appellee.
Joseph V. Pagano, for appellant.
EILEEN T. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Deangelo Thomas (“Thomas“), appeals his convictions and sentence. He claims the following errors:
- The trial court erred by admitting the testimony of Dwayne McCully which was disclosed for the first time during trial and deprived appellant of his constitutional rights to due process and a fair trial and violated
Crim.R. 16 . - The court erred by admitting evidence and testimony that was not timely disclosed or was not properly authenticated or was irrelevant, redundant, and admitted in violation of
Evid.R. 401 ,402 , and403 , which deprived appellant of his federal and constitutional rights to due process, effective representation, and a fair trial. - The trial court erred when it denied appellant‘s motions for acquittal under
Crim.R. 29 because the state failed to present sufficient evidence to establishbeyond a reasonable doubt the elements necessary to support the convictions. - Appellant‘s convictions are against the manifest weight of the evidence.
- Appellant‘s sentence on Count 3 is invalid because it was imposed pursuant to the Reagan Tokes Act Amendments, S.B. 201, which violates the United States and Ohio Constitutions.
- Appellant received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitutions and Section 10, Article I of the Ohio Constitution for not raising a constitutional challenge to the application of the Reagan Tokes Law.
{¶ 2} We affirm the trial court‘s judgment.
I. Facts and Procedural History
{¶ 3} Thomas was charged with two counts of aggravated murder, one count of aggravated burglary, two counts of felonious assault, one count of attempted murder, and one count of having weapons while under disability in connection with the shooting death of Arianne Welch (“Welch“) on June 7, 2020. All the charges, except for the having weapons while under disability charge, included notice of prior conviction and repeat-violent-offender specifications, as well as one- and three-year firearm specifications. {¶ 4} The case proceeded to a jury trial in February 2022. Prior to trial, Thomas moved to bifurcate the notice of prior conviction and repeat-violent-offender specifications and the weapons while under disability charge from the jury trial. He also filed a notice of alibi, indicating that he was at a home on Capital Avenue in Cleveland, Ohio on the morning of June 7, 2020.
{¶ 5} Officer William Dwulat (“Dwulat“), of the Cleveland Police Department, testified that he responded to a 9-1-1 call, reporting that a woman had been shot on Mount Auburn Avenue on the morning of June 7, 2020. When he arrived on the scene, he was met by the 9-1-1 caller, who identified himself as Robert Moss, Sr. (“Moss“). Moss directed Dwulat‘s attention to a woman who was hiding behind Moss‘s truck in his driveway. The woman, Maisha Kinlow (“Kinlow“), informed Dwulat that her friend had been shot in the upstairs apartment of the two-family house across the street. (Tr. 353.) Dwulat testified that Kinlow appeared “extremely frightened and scared” and that she was afraid the perpetrator was going to kill her too. (Tr. 353.)
{¶ 6} Kinlow identified Thomas as the shooter to police at the scene. (Tr. 378.) She also told police that Thomas was driving a blue Dodge Durango. (Tr. 378, State‘s exhibit No. 6A.) The description of Thomas‘s vehicle was striking to Dwulat because he had observed a blue Dodge Durango driving down Mount Auburn Avenue when he arrived on the scene. He noted the Durango because he, himself, used to own a Durango. (Tr. 386.) Kinlow told police that Thomas was a bald, African-American man with a beard. The man Dwulat observed driving the Durango matched the description provided by Kinlow. (Tr. 381.)
{¶ 7} Moss testified that he was sitting on his front porch on the morning of June 7, 2020, when he heard several gunshots. (Tr. 465.) He then heard a voice across the street calling, “Help me, help me.” (Tr. 465-466.) Moss looked over and saw a woman, later identified as Kinlow, climbing over the railing of the second-story balcony. (Tr. 466-467.) Moss called 9-1-1 at 11:38 a.m. and continued to watch Kinlow. (Tr. 1327.) He explained that a mattress happened to be laying in the yard next door. A man walking down the street heard Kinlow‘s calls for help and pushed the mattress beneath the balcony where
{¶ 8} Kinlow testified that she knew Thomas well because he used to date her mother and later dated her friend Welch. (Tr. 544-545, 548.) Kinlow and her sister moved into Thomas‘s home in 2017, after their mother passed away, and she considered Thomas her “step dad.” (Tr. 547-548, 554.) Kinlow lived with Thomas “for about eight months to a year.” (Tr. 548.)
{¶ 9} Welch dated Thomas from 2018 until shortly before her death in June 2020. They were no longer dating at the time Welch was murdered and, according to Kinlow, Welch was “scared” of Thomas after their breakup. (Tr. 569-570.) Kinlow testified that although Thomas lived with Welch in the apartment on Mount Auburn Avenue, he moved out of the apartment two weeks before the shooting, and Welch changed the locks on the door after she and Thomas broke up. (Tr. 591.) {¶ 10} Kinlow slept in Welch‘s apartment the night before the shooting. On the morning of June 7, 2020, Welch and Kinlow woke up, smoked marijuana, and dressed to go shopping. Just as they were about to leave the apartment, Kinlow went into a bedroom to retrieve the charging cord for her phone. While Kinlow was in the bedroom, Welch opened the door and screamed, “Oh, my God, he‘s here.” (Tr. 596.) Kinlow turned toward the door and observed Welch trying to push the door closed, but a man‘s foot was wedged in the doorway preventing its closure. (Tr. 596.) Kinlow helped to push the door closed, but they were unsuccessful, and Welch told Kinlow: “Run, friend, run.” (Tr. 597.)
{¶ 11} Kinlow turned and ran into a bedroom in the front of the apartment. As she was running, she heard several gunshots behind her. After a period of quiet, Kinlow thought Thomas had gone so she peaked around a dresser and saw Thomas standing next to Welch‘s body on the floor. She heard Thomas ask Welch, “Where did your friend go? Maisha, Mocha, where she at? That bitch left you here to die. She left you.” (Tr. 598.)
{¶ 12} Thereafter, Kinlow climbed out of the bedroom window onto the balcony from which she made her escape. When asked how certain she was that Thomas was the person who shot Welch, she replied, “100 percent sure.” (Tr. 601-602.) On cross-examination, Kinlow further stated: “I knew it was Deangelo [Thomas]. It‘s not like he was somebody I didn‘t know what he looked like or I didn‘t know his appearance; I knew him when I see him.” (Tr. 808.) According to Kinlow, Thomas drove away after the shooting, but returned and was present at the scene when the ambulances arrived. (Tr. 603.)
{¶ 13} Dwayne McCully (“McCully“) occupied the downstairs unit of the two-family house where the shooting occurred. McCully testified that he observed Welch and Thomas interact during the four months they lived in the upstairs apartment, and he described their relationship as “toxic.” (Tr. 901.)
{¶ 14} McCully testified that on the night of June 6, 2020, he returned home from a family party at approximately 11:30 p.m. and went into the backyard to let his dog out. While he was watching his dog, Thomas came out of the bushes and, referring to Welch, asked McCully: “Have you seen that bitch?” (Tr. 913.) Thomas also told McCully: “She has something incriminating on me and I‘m gon’ to kill the bitch.” (Tr. 915.) McCully replied: “You need to reconsider, * * * because * * * your destiny is going to be jail or the grave.” (Tr. 915.) McCully did not think Thomas really intended to kill Welch and went inside for the night.
{¶ 16} Detective Gregory Cook (“Cook“), a detective in the Cleveland Police Department‘s homicide unit, testified that he and Detective Andrew Hayduk (“Hayduk“) were investigating an unrelated murder on the morning of June 7, 2020. They were on their way to meet with a witness on Capital Avenue in Cleveland when they observed several police cars on Mount Auburn Avenue. A patrol officer informed them that a shooting had occurred. The shooting on Mount Auburn Avenue was not officially a homicide case yet so the detectives continued on to Capital Avenue to meet their witness, Allen Wilson (“Wilson“).
{¶ 17} Upon arriving at the residence on Capital Avenue, Cook knocked on the door, and an African-American man answered. Cook advised the man that he was there to speak to Wilson. After a brief exchange between Wilson and the detectives, the detectives left the house and returned to the homicide unit before being called to investigate Welch‘s death on Mount Auburn Avenue later that afternoon.
{¶ 18} Nearly nine months later, Cook received two recorded phone calls from Thomas, who was calling from the Cuyahoga County jail. In the phone calls, which were played for the jury, Thomas claimed he was the individual who opened the door for the detectives on Capital Avenue on June 7, 2020. He asserted that because he was on Capital Avenue, he could not have committed the homicide on Mount Auburn. On further investigation, Cook determined that Welch was murdered over an hour before he arrived at the house on Capital Avenue and that Thomas could have committed the murder before going to the house on Capital Avenue since Capital Avenue was approximately one mile from Mount Auburn. (Tr. 1259, 1266-1277, exhibit No. 12.)
{¶ 19} Hayduk, a homicide detective with the Cleveland Police Department, testified that he was assigned to investigate Welch‘s murder. He interviewed Kinlow at the hospital on the day of the murder, and Kinlow identified Thomas as the shooter who killed Welch. Hayduk interviewed Thomas after his arrest approximately two weeks later, and Thomas never mentioned his alibi defense that he was on Capital Avenue at the time of the shooting during the interview. (Tr. 1345.)
{¶ 20} Thomas presented two alibi witnesses; Bernard Evans (“Evans“) and Allen Wilson (“Wilson“). Thomas offered the testimony of these witnesses to show that he was on Capital Avenue at the time Welch was murdered and, therefore, could not have killed her. As previously stated, Moss called 9-1-1 at 11:38 a.m., which indicated the shooting occurred at about that time. (Tr. 1327.) When asked what time the detectives arrived at Wilson‘s home on Capital Avenue, Evans stated:
It was daylight. I would say 9:00ish, 12:00ish, 11:00ish. You know, afternoon—morning, afternoon. I can‘t recall. I can‘t actually say what time. It was daylight.
(Tr. 1407.) Wilson testified that the detectives arrived at his home on Capital Avenue between 7:00 and 8:00 a.m. on the morning of June 7, 2020. (Tr. 1433.) On cross-examination, the prosecutor, seeking clarification, asked Wilson if the detectives arrived to speak with him at 7:00 a.m., and Wilson replied: “I don‘t know what time it was, but they wanted to talk to me. I never looked at the clock.” (Tr. 1446.)
{¶ 22} The court merged the two aggravated-murder convictions alleged in Counts 1 and 2 with the felonious-assault conviction alleged in Count 4 as well as the one- and three-year firearm specifications. The court ordered two firearm specifications to be served consecutively pursuant to
{¶ 23} Thomas now appeals his convictions and sentence, raising six assignments of error, which we discuss out of order, beginning with the third and fourth assignments of error.
II. Law and Analysis
A. Sufficiency and Manifest Weight of the Evidence
{¶ 24} In the third and fourth assignments of error, Thomas argues his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. Although the terms “sufficiency” and “weight” of the evidence are “quantitatively and qualitatively different,” we address these issues together because they are closely related, while applying the distinct standards of review. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 25} The test for sufficiency requires a determination as to whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The 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. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 26} In contrast to sufficiency, “weight of the evidence involves the inclination of the greater amount of credible evidence.” Thompkins at 387. While “sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence‘s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In other words, a reviewing court asks whose evidence is more persuasive — the state‘s or the defendant‘s?” Id.
{¶ 27} In a manifest weight challenge, the reviewing court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its
{¶ 28} A finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency. State v. Taylor, 8th Dist. Cuyahoga No. 108347, 2020-Ohio-3589, ¶ 40, citing State v. Robinson, 8th Dist. Cuyahoga No. 96463, 2011-Ohio-6077.
{¶ 29} In both the third and fourth assignments of error, Thomas contends there is no credible evidence that he was the perpetrator of the crimes that resulted in Welch‘s death or that he possessed a firearm. Thomas was convicted of two counts of aggravated murder, in violation of
No person shall purposely cause the death of another * * * while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present[.]
{¶ 30} Thomas was convicted of aggravated burglary in violation of
No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another[.]
{¶ 31} Thomas was also convicted of two counts of felonious assault in violation of
{¶ 32} Kinlow testified at trial that she saw Thomas force his way into Welch‘s apartment where he fired several gunshots at Welch. She also testified that Welch was afraid of Thomas after their breakup and that she observed an ambulance transport Welch to the hospital, where she was pronounced dead, immediately after the shooting. Dr. Galita testified that Welch died as result of at least two fatal gunshot wounds. And, McCully testified that Thomas came out of the bushes at approximately 11:30 p.m. the night before the shooting and stated that he was looking for Welch because he was going to kill her. Moreover, Kinlow identified Thomas at the scene as the perpetrator who shot and killed Welch. Kinlow‘s statements were captured on police body
{¶ 33} Kinlow testified that Thomas moved out of the apartment a couple of weeks before the shooting and that Welch changed the locks on the door. Welch‘s landlord, Phillip Perdue, also testified that Welch had asked about the changing the locks a week or two before the shooting, and McCully testified that Thomas was angry that Welch had changed the locks. As previously stated, Kinlow testified that Thomas forced his way into Welch‘s apartment while she and Welch were present. Therefore, there was credible evidence that Thomas committed aggravated burglary because he forcibly entered the apartment and caused Welch‘s death while he was trespassing in her apartment. This evidence supports the second aggravated murder conviction in violation of
{¶ 34} The same evidence supports Thomas‘s felonious-assault convictions because the evidence showed that Thomas knowingly caused serious harm to Welch by shooting her nine times and knowingly caused serious harm to Welch by means of a deadly weapon, i.e., a firearm. Therefore, there was credible evidence supporting both felonious-assault convictions.
{¶ 35} Finally, Thomas was convicted of having weapons while under disability in violation of
Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.
{¶ 36} Kinlow testified that Thomas killed Welch with a firearm. The state presented a certified copy of a judgment entry indicating that Thomas was previously convicted of a felony offense of domestic violence.
{¶ 37} In short, there was sufficient evidence to support each of Thomas‘s convictions beyond a reasonable doubt, and the convictions were not against the manifest weight of the evidence. Therefore, the third and fourth assignments of error are overruled.
B. McCully‘s Testimony
{¶ 38} In the first assignment of error, Thomas argues the trial court erred in allowing Dwayne McCully to testify that he met Thomas the night before the shooting and that Thomas told him he planned to kill Welch. He contends that because the state did not disclose this information prior to trial, the evidence should have been excluded pursuant to
{¶ 39}
{¶ 40} An abuse of discretion occurs when a court exercises its judgment in an unwarranted way regarding a matter over which it has discretionary authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. In other words, “[a] court abuses its discretion when a legal rule entrusts a decision to a judge‘s discretion and the judge‘s exercise of that discretion is outside of the legally permissible range of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ 19.
{¶ 41} This court has held that an abuse of discretion may be found where a trial court “applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). When applying the abuse-of-discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Vannucci v. Schneider, 2018-Ohio-1294, 110 N.E.3d 716, ¶ 22 (8th Dist.).
{¶ 42} “[P]rosecutorial violations of
{¶ 43} The term “willful” for purposes of
{¶ 44} In Jackson, the Ohio Supreme Court held that the state‘s conduct in failing to disclose exculpatory evidence was not willful because the prosecutor thought the evidence was irrelevant and therefore disclosure to the defense was unnecessary. Id. at ¶ 128-131. In State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983), the Ohio Supreme Court held that the state‘s failure to disclose a codefendant‘s statement to the defense constituted a negligent omission rather than a willful discovery violation and, therefore, did not warrant exclusion. Id. at syllabus.
{¶ 45} The state learned of Thomas‘s statements to McCully regarding his plan to kill Welch during the trial. (Tr. 741-743.) Upon learning of the statements, the state immediately informed defense counsel, and the state ensured that McCully was available to be interviewed by defense counsel before he testified. (Tr. 741-744.) The court held a hearing to determine when McCully disclosed the incriminating evidence to the state, and McCully indicated that he first disclosed the evidence to the prosecutors during the trial. (Tr. 953-954.) Therefore, because the state had no knowledge of this evidence prior to trial, it could not have willfully withheld the evidence from the
{¶ 46} Certainly, the evidence was prejudicial to the defense. However, it is doubtful that a timely disclosure of the evidence would have done much to aid the defense since other witnesses and evidence established Thomas‘s guilt. Even if McCully‘s statements were entered in error, the error was harmless in light of the other evidence of Thomas‘s guilt.
{¶ 47}
{¶ 48} To be viewed as “affecting substantial rights,” the error must have been prejudicial, meaning “[i]t must have affected the outcome of the [trial] court proceedings.” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting Olano. In other words,
{¶ 49} Kinlow testified that she saw Thomas forcibly enter Welch‘s apartment and fire numerous gunshots at her. Immediately after the shooting, while she was still under the stress of the event, she told police that Thomas shot and killed Welch. She also told police that although Thomas fled the scene following the shooting, he returned in his blue Dodge Durango while the ambulances were present. Dwulat testified that he observed the blue Durango on the scene, which corroborated Kinlow‘s testimony. And, Welch‘s landlord testified that Welch inquired about changing the locks to the apartment a week or two before the shooting, and Kinlow testified that Welch was frightened when Thomas appeared at her apartment. Thus, there was competent, credible evidence on which the jury would have convicted Thomas of aggravated murder, aggravated burglary, and felonious assault, even if McCully had never testified about the incriminating statements Thomas made to him the night before the murder.
{¶ 50} Therefore, because there was no
C. Other Evidence
{¶ 51} In the second assignment of error, Thomas argues the trial court erroneously admitted the following items into evidence: (1) body camera videos, marked as state‘s exhibit Nos. 6 and 6A, depicting Kinlow‘s statements to EMS and police wherein she identified Thomas as the shooter; (2) Kinlow‘s testimony that she was afraid to return home from the courthouse because she was being harassed by people; (3) Dwayne McCully‘s testimony regarding Thomas‘s admission that he planned to kill Welch; (4) state‘s exhibit No. 4, footage from a body camera worn by an officer who did not testify at trial; (5) EMS records marked as state‘s exhibit No. 10, and the victims’ medical records marked as state‘s exhibit No. 23; (6) an event chronology marked as state‘s exhibit No. 24; and (7) Dr. Galita‘s autopsy report, marked as state‘s exhibit No. 300.
{¶ 53} Thomas first argues that the body-camera videos marked as state‘s exhibits Nos. 6 and 6A should have been excluded because they contained hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted.
{¶ 54} The body-camera videos show Kinlow interacting with EMS and police immediately following the shooting. The body-camera videos were authenticated by Officer Dwulat, who responded to the scene, and the trial court limited the statements contained in the videos to Kinlow‘s statements identifying Thomas as the perpetrator who shot Welch. Kinlow testified at trial and was subject to cross-examination. Therefore, her statements in the body-camera videos were not hearsay.
{¶ 55} Moreover, it was clear that Kinlow was still under the stress of having witnessed her friend being murdered when she made the statements depicted in the body-camera videos. Her statements would, therefore, fall within the excited utterance exception to the hearsay rule even if they were considered hearsay. An “excited utterance” is defined as a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
{¶ 56} Thomas argues the trial court erroneously allowed Kinlow to testify that she was afraid to go home after testifying because people were harassing her. The court prohibited this line of questioning, but the jury heard Kinlow mention her fear of certain people, and the court did not provide a curative instruction. Thomas argues the court should have excluded Kinlow‘s statement because it was irrelevant and prejudicial.
{¶ 57} To be relevant and therefore admissible, evidence must have a tendency “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
{¶ 58} Kinlow‘s statement that she was afraid of people harassing her was irrelevant and should have been excluded. However, Thomas fails to show how this statement prejudiced his defense. Although an error may have been committed, the defendant must demonstrate prejudice to warrant reversal. Columbus v. McAfee, 10th Dist. Franklin Nos. 90AP-944 and 90AP-945, 1991 Ohio App. LEXIS 414. A defendant is entitled to a fair trial, not a perfect trial. Id. Without a showing of prejudice, the admission of Kinlow‘s statement that she
{¶ 59} Thomas nevertheless asserts that McCully‘s testimony that Thomas told him he was planning to kill Welch should have been excluded as a discovery sanction because it was not produced in a timely manner during pretrial discovery. As previously explained in our first discussion of the first assignment of error, the state had no knowledge of this evidence before trial and, therefore, could not have willfully committed a discovery violation. {¶ 60} In addition, the evidence of Thomas‘s statement to McCully that he was planning to kill Welch falls within the “statement against interest” exception to the hearsay rule. In State v. Maldonado, 9th Dist. Lorain No. 01CA007759, 2001 Ohio App. LEXIS 4014, the court held that a defendant‘s statement that he was planning to kill the victim is admissible as a statement against interest under
{¶ 61} Thomas next argues that the trial court erred in admitting state‘s exhibit No. 4, which was a video taken from a body camera worn by an officer who did not testify at trial. He argues the video was not properly authenticated and that there was no evidence of a proper chain of custody.
{¶ 62} Pursuant to
By way of illustration,
Evid.R. 901(B) provides that evidence may be properly authenticated by “testimony of witness with knowledge” that “a matter is what it is claimed to be.” Further, the authentication requirement ofEvid.R. 901(A) is a low threshold that does not require conclusive proof of authenticity, but only sufficient foundation evidence for the trier of fact to conclude that the evidence is what its proponent claims it to be. State v. Toudle, 8th Dist. Cuyahoga No. 98609, 2013-Ohio-1548, ¶ 21, citing Yasinow v. Yasinow, 8th Dist. Cuyahoga No. 86467, 2006-Ohio-1355, ¶ 81.
State v. Maust, 8th Dist. Cuyahoga No. 103182, 2016-Ohio-3171, ¶ 24. This court reviews a trial court‘s ruling on the adequacy of authentication for an abuse of discretion. State v. Bowling, 8th Dist. Cuyahoga No. 93052, 2010-Ohio-3595, ¶ 33, citing State v. Easter, 75 Ohio App.3d 22, 26-27, 598 N.E.2d 845 (4th Dist.1991).
{¶ 63} Dwulat testified that he personally observed the evidence depicted in the body-camera video marked as state‘s exhibit No. 4 because he was standing next to his partner while his partner‘s camera was capturing the scene depicted therein. Officer Duwalt‘s first-hand observations of the scene were sufficient to authenticate the images depicted on the video. See, e.g., Cleveland v. Greear, 8th Dist. Cuyahoga No. 108190, 2020-Ohio-29 (holding that a victim‘s testimony that a police body-camera video accurately depicted the events that occurred was sufficient to authenticate the video). Therefore, the court did not err in admitting state‘s exhibit No. 4.
{¶ 64} Next Thomas argues the trial court erred in allowing the state to
{¶ 66} Dr. Galita‘s autopsy report showed what parts of Welch‘s body sustained gunshot wounds. Although the autopsy report was not entirely necessary to the state‘s case, there is no evidence that its admission unfairly prejudiced the defense. Therefore, it was properly admitted.
{¶ 67} The second assignment of error is overruled.
D. Indefinite Sentence Under the Reagan Tokes Law
{¶ 68} In the fifth assignment of error, Thomas argues the sentence he received pursuant to the Reagan Tokes Law on his aggravated burglary conviction violates the Ohio and United States Constitutions. Thomas recognizes this court‘s en banc decision in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), where this court found “that the Reagan Tokes Law, as defined under
{¶ 69} The fifth assignment of error is overruled.
E. Ineffective Assistance of Counsel
{¶ 70} In the sixth assignment of error, Thomas contends he received ineffective assistance of counsel because his trial counsel failed to object to the imposition of a sentence under the Reagan Tokes Law. Thomas recognizes that the Ohio Supreme Court may find the Reagan Tokes Law constitutional, in which case this issue would be moot. He nevertheless argues his trial counsel should have objected to the sentence in order to preserve the issue in the event the Supreme Court finds it unconstitutional.
{¶ 71} To establish ineffective assistance of counsel, the defendant must demonstrate that counsel‘s performance fell below an objective standard of reasonable representation and that he or she was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a reasonable
{¶ 72} Regardless of whether counsel‘s performance was deficient, Thomas cannot establish a claim for ineffective assistance of counsel because he cannot demonstrate that he was, or will be, prejudiced by counsel‘s failure to object to the sentence imposed pursuant to the Reagan Tokes Law. If the Ohio Supreme Court were to declare the Reagan Tokes Law unconstitutional, Thomas would have remedy to challenge the unconstitutional sentence under
(a) A person in any of the following categories may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief:
(i) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States[.]
Thus,
{¶ 73} The sixth assignment of error is overruled.
{¶ 74} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
ANITA LASTER MAYS, A.J., and MICHAEL JOHN RYAN, J., CONCUR
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that
Judge Anita Laster Mays is constrained to apply Delvallie‘s en banc decision. For a full explanation of her analysis, see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 356 (8th Dist.). (Laster Mays, A.J., concurring in part and dissenting in part.)