STATE OF OHIO, PLAINTIFF-APPELLEE vs. BENJAMIN WILLIAMS, DEFENDANT-APPELLANT
No. 95796
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 22, 2011
[Cite as State v. Williams, 2011-Ohio-4812.]
[Vacated opinion. Please see 2011-Ohio-5483.]
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-532133
BEFORE: E. Gallagher, J., Blackmon, P.J., and Keough, J.
RELEASED AND JOURNALIZED: September 22, 2011
Robert L. Tobik
Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Gregory Mussman
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Benjamin Williams, appeals from his convictions in the Cuyahoga County Court of Common Pleas. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.
{¶ 2} Appellant was indicted on December 29, 2009, and charged with aggravated murder in violation of
{¶ 3} Count 5 was voluntarily dismissed by the state prior to trial that commenced on July 6, 2010. The jury returned a verdict of not guilty on Counts 1 and 3 as well as to the lesser included offense of murder under Count 1. The jury found appellant guilty of aggravated murder as to Count 2 and guilty of aggravated robbery as to Count 4. The jury further found appellant not guilty of the gun specifiсations on Counts 2 and 4.
{¶ 4} On September 8, 2010, prison terms of life with parole eligibility after 30 years on Count 2 and ten years on Count 4 were imposed. The trial court ordered the sentences to run concurrently. Appellant brought the present appeal raising the nine assignments of error contained in the appendix to this opinion.
{¶ 5} In his first assignment of error, appellant posits that the State failed to present sufficient evidence that he committed the crimes of aggravated robbery and aggravated murder.
{¶ 6} “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
{¶ 7} Appellant was convicted of aggravated murder as charged in Count 2 in violation of
{¶ 8} Appellant was also convicted of aggravated robbery as charged in Count 4 in violation of
{¶ 10} The elements of an offense may be established by direct evidence, circumstantial evidence or both. State v. Durr (1991), 58 Ohio St.3d 86, 568 N.E.2d 674. Circumstantial evidence is defined as, “‘[t]estimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought proved. * * * ‘” State v. Nicely (1988), 39 Ohio St.3d 147, 150, 529 N.E.2d 1236, quoting Black‘s Law Dictionary (5th Ed.1979) 221. Circumstantial and direct evidence are of equal evidentiary value. State v. Jenks (1991), 61 Ohio St.3d 259, 272, 574 N.E.2d 492.
{¶ 11} The following relevant facts were adduced at trial: James Zagorski was shot the night of September 15, 2008, in the parking lot of a Food Plus convenient store
{¶ 12} Passing witnesses observed a number of young men congregating on the side of the Food Plus store near Zagorski‘s car and one witness heard gunshots and then saw the young men dispersing. Shortly after the gunshots, witnesses observed Zagorski‘s car move from the side of the Food Plus building and crash into a nearby pole.
{¶ 13} An autopsy performed by the Cuyahoga County Coroner‘s Office established that Zagorski died from a single gunshot wound to the chest. Forensics established that the fatal shot was fired from the driver‘s side of Zagorski‘s car.
{¶ 14} In Zagorski‘s vehicle police found $60 and two pill bottles containing marijuana. At Metro Hospital, $1,212.18 was recovered from Zagorski‘s person.
{¶ 15} At trial, circumstantial evidence was presented that appellant аttempted to commit a theft offense and in so doing inflicted serious physical harm upon Zagorski. Evidence was presented that, in the course of the attempted aggravated robbery, appellant purposely caused the death of Zagorski. Police found discarded cigar tips and
{¶ 16} Jackson and Jefferson both placed appellant at the scene of the crime when Zagorski was shot. Jefferson testified that the group of young men observed Zagorski waiting in his car and that there was a discussion about robbing Zagorski. Jefferson testified that appellant stated that he wanted to rob Zagorski and that appellant turned and began to approach Zagorski‘s car when Jefferson walked away to avoid the situation. Jackson testified that when he left appellant was standing roughly four or five feet away from the passenger side of Zagorski‘s car. Both Jefferson and Jackson testified to hearing a gunshot a short time later. Jefferson testified that appellant told him “that he wasn‘t like supposed to have killed him or shot him or anything” which, when considered in a light most favorable to the prosecution, provides circumstantial evidence that Zagorski was shot by appellant during a failed robbery.1
{¶ 17} Appellant cites State v. Scott, Cuyahoga App. No. 83477, 2004-Ohio-4631, for the proposition that “mere words” by a defendant expressing an intent to take something do not “constitute a substantial step in the commission of a theft offense so as
{¶ 18} In the present case, unlike Scott, there is evidence that a theft was attempted but went awry. Appellant expressed his intent to rob Zagorski. Jefferson saw appellant approach Zagorski‘s car and did not hear a gunshot until at least a minute later. Finally, Jefferson‘s conversation with appellant after the shooting is circumstantial evidence that an attempted theft occurred.
{¶ 20} Appellant‘s first assignment of error is overruled.
{¶ 21} As appellant‘s fourth assignment of error is, in essence, a sufficiency challenge, we briefly address it out of order here. Appellant argues that he did not receive a fair trial as required by due process because the jury failed to follow the trial court‘s jury instructions. Appellant‘s indictment charged him as the principal offender, not as an accomplice pursuant to the complicity statute,
{¶ 22} Appellant‘s argument in this instance is essentially a sufficiency challenge. Appellant‘s arguments rely on his assertion that the State did not present sufficient evidence that he shot Zagorski. Appellant cites State v. Frost, 164 Ohio App.3d 61, 2005-Ohio-5510, 841 N.E.2d 336, for the proposition that in the absence of a complicity instruction, he cannot be convicted as an aider and abetter. Appellant‘s reliance on Frost is misplaced. In Frost, unlike thе present case, the defendant was tried under the theory that he was an accomplice. The State provided sufficient evidence that Frost was
{¶ 23} In the present case, unlike Frost, viewing the evidence in a light most favorable to the prosecution, the state presented sufficient evidence, as discussed above, that appellant was the principal offender in both of the crimes for which he was convicted.
{¶ 24} Appellant‘s fourth assignment of error is overruled.
{¶ 25} Appellant аrgues in his second assignment of error that his convictions were against the manifest weight of the evidence. The question to be answered when a manifest-weight issue is raised is whether “there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” (Internal citations and quotations omitted.) State v. Leonard, 104 Ohio St.3d 54, 68, 2004-Ohio-6235, 818 N.E.2d 229.
{¶ 27} After reviewing the entire record, considering the credibility of the witnesses and weighing the evidence, we find that the jury clearly lost its way in resolving conflicts in the evidence, and a manifest miscarriage of justice resulted. The record lacks consistent, credible evidence to support the jury‘s verdict that appellant was guilty of aggravated robbery and aggravated murder.
{¶ 28} As discussed above, appellant was indicted and tried as the principal offender in the alleged crimes, not as an accomplice. Though the stаte presented sufficient evidence to support appellant‘s convictions, the weight of the evidence clearly favored the conclusion that appellant was not the principal offender of these crimes.
{¶ 30} Finally, forensic evidence established that Zagorski was shot from just outside the driver‘s side of his car. Incongruously, Jackson placed appellant on the passenger side of Zagorski‘s vehicle just prior to the shooting. This inconsistency particularly stands out in light of Jefferson‘s testimony. As discussed above, Jefferson‘s recounting of appellant‘s alleged statement, “that he wasn‘t like supposed to have killed
{¶ 31} After reviewing the entire record, weighing all of the evidence and considering the credibility of witnesses, we find that this is the exceptional case where the “jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Leonard, 104 Ohio St.3d at 68.
{¶ 32} Appellant‘s second assignment of error is sustained.
{¶ 33} In his third assignment of error, appellant argues that the trial court erred in responding to two jury questions.
{¶ 34} During deliberations the jury posed the following questions:
{¶ 35} “1. “Under count 1, the lesser charge ... Based on definition of Purpose: Does [appellant] have to be holding the gun or does he have to be involved in an action that brought about the result of [Zagorski‘s] death?”
{¶ 36} “2. “To be charged with any of these counts, does the State have to prove that [appellant] had the gun in his hand?”
{¶ 37} The trial court responded to these questions by referring the jury back to the provided jury instructions, stating, “All I can tell you is that you have the pertinent law in the jury charge.”2
{¶ 39} Where, during the course of its deliberations, a jury requests further instruction, or clarification of instructions previously given, a trial court has discretion to determine its response to that request. A reversal of a conviction based upon a trial court‘s response to such a request requires a showing that the trial court abused its discretion. State v. Carter, 72 Ohio St.3d 545, 552-553, 1995-Ohio-104, 651 N.E.2d 965; State v. Lindsey (2000), 87 Ohio St.3d 479, 488, 721 N.E.2d 995. Absent error in the original jury instructions, a trial court does not abuse its disсretion by referring the jury to a written copy of the instructions rather than giving further oral instructions. Id. at 553, 651 N.E.2d 974; Lindsey, 87 Ohio St.3d at 488.
{¶ 40} In the case sub judice, appellant argues that the trial court erred by not clarifying for the jury that in order to convict him of the above crimes the jury would necessarily have to find that he was the principal offender, i.e. the shooter. Appellant
{¶ 41} Appellant‘s third assignment of error is overruled.
{¶ 42} In his fifth assignment of error, appellant arguеs that the jury‘s verdict is inconsistent because it found him guilty of aggravated robbery and aggravated murder but not guilty of the firearm specifications attached to those two counts. “Under Ohio law, the several counts of an indictment containing more than one count are not interdependent, and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count.” State v. Houser (May 30, 1996), Cuyahoga App. No. 69639, citing State v. Brown (1984), 12 Ohio St.3d 147, 465 N.E.2d 889.
{¶ 43} We have repeatedly held that a not guilty verdict with regard to a firearm specification is not inconsistent with a guilty verdict for aggravated robbery. State v. Hardware, Cuyahoga App. No. 93639, 2010-Ohio-4346, at ¶15. Appellant argues that based upon the Ohio Supreme Court‘s holding in State v. Evans, 113 Ohio St.3d 100, 2007-Ohio-861, 863 N.E.2d 113, a firearm specification is considered dependent on the
{¶ 44} Appellant‘s fifth assignment of error is overruled.
{¶ 45} In his sixth assignment of error, appellant argues that he was deprived of his due process right to a fair trial due to prosecutorial misconduct. Specifically, appellant argues that the prosecutor engaged in misconduct by suggesting to the jury that he personally believed the defendant was guilty, by soliciting speculative and inadmissible testimony, by asking the investigating detective to improperly bolster other witnesses’ testimony and by urging the jury to consider facts not in evidence.
{¶ 46} The test for prosecutorial misconduct is whether the prosecutor‘s remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused. State v. Bey, 85 Ohio St.3d 487, 1999-Ohio-283, 709 N.E.2d 484; State v. Lott (1990), 51 Ohio St.3d 160, 165, 555 N.E.2d 293, cert. denied, 498 U.S. 1017, 111 S.Ct. 592, 112 L.Ed.2d 596. A prosecutor‘s conduct during trial cannot be grounds for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19, 24, 514 N.E.2d 394. The focus of that inquiry is on the
{¶ 47} Appellant did not objeсt at trial to the comments he now challenges as improper. In the absence of objection to improper comments, the alleged prosecutorial misconduct can only be the basis for reversal if it rises to the level of plain error.
{¶ 48} Our focus, upon review, is whether the prosecutor‘s comments deprived appellant of a fair trial such that there is a reasonable probability that, but for the prosecutor‘s misconduct, the result of the proceeding would have been different. State v. Onunwor, Cuyahoga App. No. 93937, 2010-Ohio-5587, at ¶42, citing State v. Loza (1994), 71 Ohio St.3d 61, 78-79, 641 N.E.2d 1082, overruled on other grounds.
{¶ 49} Appellant first argues that the state committed prosecutorial misconduct when the prosecutor told the jury that he was “here to bring the person that [killed
{¶ 50} Appellant‘s second prosecutorial misconduct argument is that the state deprived him of a fair trial by eliciting speculative testimony. Appellant cites the prosecutor‘s direct examination of Jefferson, where it was established that Jefferson did not actually witness a confrontation between appellant and Zagorski and did not witness the shooting. Nonetheless, Jefferson testified that when he later heard a gunshot he could “put it together and seen what had happened.” The prosecutor then asked him what he had “put together,” to which Jefferson replied, “[t]hat they went over to rob him and shot him and he tried to pull out and probably died while he was trying to pull out.” There is no indication that Jefferson possessed any personal knowledge to support this
{¶ 51} Appellant additionally cites to the direct examination of Detective Veverka, wherein the following exchange occurred:
{¶ 52} Prosecutor: “Now, at this point, is there anything left to do as part of your investigation?”
{¶ 53} Detectivе Veverka: “At this point we were still trying to identify a second individual.”
{¶ 54} Prosecutor: “And why is that?”
{¶ 55} Detective Veverka: “We have reports that two individuals approached James Zagorski‘s car. Our investigation led us to believe that Benjamin Williams was one of the individuals and we‘re still trying to determine who the second individual is.”
{¶ 56} Appellant argues that the prosecutor engaged in misconduct by eliciting this testimony because it suggested that Detective Veverka reached his own conclusion
{¶ 57} Even assuming that the testimony quoted above was improperly admitted, we do not find that the statements prejudicially affected appellant‘s substantial rights. When considering the entire record in this case, we cannot say that absent the improper testimony, the jury verdict would have been different.
{¶ 58} Appellant next argues that the prosecutor improperly used the testimony of Detective Veverka to bolster the credibility of Carlton Tidmore and Daquan Jackson. Generally, the opinion of a witness as to whether another witness is being truthful is inadmissible. State v. Boston (1989), 46 Ohio St.3d 108, 128, 545 N.E.2d 1220 (overruled on other grounds). It is undisputed that a police officer may not testify as to a witness‘s veracity. State v. Black, Cuyahoga App. No. 92806, 2010-Ohio-660, at ¶31, citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶122. In our system of justice, it is the factfinder, not the expert or lay witness, who bears the burden of assessing the credibility or veracity of a witness. State v. Eastham (1988), 39 Ohio St.3d 307, 312, 530 N.E.2d 409.
{¶ 59} The record does not support appellant‘s contention that the prosecutor elicited testimony from Detective Veverka to bolster the credibility of Tidmore and Jackson. Tidmore himself admitted that he told the police “about a half-dozen different
{¶ 60} In his fourth, and final claim of prosecutorial misconduct, appellant takes issue with comments made by the prosecutor during closing arguments. In general, prosecutors are given considerable latitude in opening statements and closing arguments. State v. Ballew (1996), 76 Ohio St.3d 244, 255, 667 N.E.2d 369. In closing argument, a prosecutor may comment on “‘what the evidence has shown and what reasonable inferences may be drawn therefrom.‘” State v. Lott (1990), 51 Ohio St.3d 160, 165, 555 N.E.2d 293, quoting State v. Stephens (1970), 24 Ohio St.2d 76, 82, 263 N.E.2d 773. A prosecutor may not express his personal belief or opinion as to the credibility of a
{¶ 61} The test for prejudice regarding prosecutorial misconduct in closing argument is “whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendаnt.” State v. Hessler, 90 Ohio St.3d 108, 125, 2000-Ohio-30, 734 N.E.2d 1237, 1254, quoting State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883, 885.
{¶ 62} The wide latitude given the prosecution during closing arguments “does not ‘encompass inviting the jury to reach its decision on matters outside the evidence adduced at trial.‘” State v. Hart, Cuyahoga App. No. 79564, 2002-Ohio-1084, quoting State v. Freeman (2000), 138 Ohio App.3d 408, 419, 741 N.E.2d 566. A prosecutor must avoid “insinuations and assertions which are calculated to mislead the jury.” State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883. An appellant is entitled to a new trial only when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudice the appellant. Id. at 15.
{¶ 63} Appellant takes issue with three portions of the prosecutor‘s closing argument. The first two excerpts cited by appellant pertain to the characterization of the testimony of the witnesses at trial and clearly did not substantially prejudice appellant. The third excerpt challenged by appellant contains a clear misstatement of trial testimony and the prosecutor references matters outside the evidence adduced at trial.
{¶ 65} “She told us that [appellant] came to her a week after this murder and told her: ‘Do you know when that kid died? Did he die before he hit the pole or after he hit the pole?’ And we know that she said she thought after he hit the pole. And we know what [appellant] said to her: ‘Good. Now I can sleep at night.‘”
{¶ 66} At the conclusion of closing arguments the prosecutor further stated:
{¶ 67} “[The Defense Attorney] asked you not to consider or weigh heavily on Danielle Simpson‘s testimony, not to really consider the fact that [appellant] admitted that he was going to hit that lick, that he said it wasn‘t supposed to go down that way, it was an accident, and he‘s trying to get you to not consider whether or not [appellant] came into that store and said, ‘Now I can sleep at night’ because he didn‘t die when he was shot * * *.”
{¶ 68} The record is clear that Danielle Simpson did not testify as such at trial.
{¶ 69} In analyzing whether an appellant was deprived of a fair trial, an appellate court must determine whether, absent the improper questions or remarks, the jury still would have found the appellant guilty. State v. Sopko, Cuyahoga App. No. 90743, 2009-Ohio-140, at ¶55, citing State v. Maurer (1984), 15 Ohio St.3d 239, 266, 473 N.E.2d 768; State v. Dixon (Mar. 13, 1997), Cuyahoga App. No. 68338. When the prosecutor‘s comments are found to be improper, it is not enough that there is sufficient other evidence to sustain a conviction. Instead, it must be clear beyond a reasonable doubt that absent the prosecutor‘s comments, the jury would have found defendant guilty. State v. Clay, 181 Ohio App.3d 563, 576, 910 N.E.2d 14, 23, citing State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470 N.E.2d 883. Stated another way, “a defendant‘s substantial rights cannot be prejudiced where the remaining evidence, standing alone, is so overwhelming thаt it constitutes defendant‘s guilt, and the outcome of the case would have been the same regardless of evidence admitted erroneously.” State v. Hicks, Cuyahoga App. No. 95133, 2011-Ohio-3578, at 30, citing State v. Williams (1988), 38 Ohio St.3d 346, 349-350, 528 N.E.2d 910.
{¶ 71} Such is not the case here. The state‘s case was built entirely upon circumstantial evidence and was heavily reliant upon the testimony of Jermaine Jefferson who initially lied to police about his presence at the scene of the crime. When Danielle Simpson did not testify consistent with the prosecutor‘s theory at trial, the prosecutor effectively substituted his own testimony for hers as to the incriminating statements allegedly made by appellant to Simpson. During closing arguments, the prosecutor, in two separate instances, relied on this alleged conversation as though it had been testified to by Simpson and was properly in evidence. The prosecutor explicitly implored the jury to rely on the statement as well.
{¶ 72} “A hallmark of our system of criminal jurisprudence is that even those charged with despicable crimes are entitled to a fair trial. If we retreat from this proposition, we denigrate the fundamental proposition that our system is one of laws. And, while the prosecutor is permitted, even expected, to zealously seek conviction of those accused, there are limits applicable to prosecutorial trial practice.” State v. Willard (2001), 144 Ohio App.3d 767, 777, 761 N.E.2d 688, 695.
{¶ 73} In this case, as in Willard, the record reveals that the proseсution, “in an effort to secure an edge, crossed the line and the result is that defendant was deprived of a fair trial.” Id. We conclude that in the context of the entire case, the prosecutor‘s misconduct constituted plain error and affected the substantial rights of appellant.
{¶ 74} Appellant‘s sixth assignment of error is sustained.
{¶ 75} In his seventh assignment of error, appellant argues that his due process right to a fair trial was violated when the state introduced testimony regarding appellant having been seen “in the past” with a revolver.
{¶ 76} No bullet shell casings were found at the crime scene, leading police to believe it was most likely a revolver that was used in the murder. At trial, the state introduced a revolver recovered from Carlton Tidmore, who denied being present at the scene the night of the shooting. Forensics were unable to make a determination as to whether the recovered revolver was the same gun as that used in Zagorski‘s shooting.
{¶ 77} Although not raised as a separate error, and not objected to at trial, we initially note that it is unclear why the gun recovered from Tidmore was admitted into evidence at all. Nothing in the record provides how Tidmore‘s gun was, in any sense, relevant to the present case. Relevant evidence is defined as “evidence having any 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.”
{¶ 78} Besides the unclear relevance of Tidmore‘s gun, no witness testified to having seen appellant possess a gun on the night of the shooting or at any other point in time contemporaneous with the shooting. Howevеr, Daquan Jackson testified that he had seen appellant with a black revolver at some unknown point “in the past.” Appellant argues that such testimony violated
{¶ 79} Pursuant to
{¶ 80} In regards to the admissibility of other-acts evidence involving a defendant having been previously seen in possession of a gun, the Ohio Supreme Court stated in State v. Watson (1971), 28 Ohio St.2d 15, 275 N.E.2d 153, that the, “‘general rule of exclusion does not apply where the evidence of another crime is relevant and tends directly * * * to prove * * * [the] accused‘s guilt of the crime charged, оr to connect him with it, or to prove some particular element or material fact in such crime; and evidence of other offenses may be received if relevant for any purpose other than to show mere propensity or disposition on [an] accused‘s part to commit the crime.‘” Id. at 21, quoting 22A Corpus Juris Secundum (1962) Criminal Law, Section 683.
{¶ 81} “Stated another way, the rule is that ‘except when it shows merely criminal disposition, * * * evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged.‘” Id. at 21, quoting People v. Peete (1946), 28 Cal.2d 306, 314, 169 P.2d 924.
{¶ 82} We find the present case analogous to State v. Crosby, 186 Ohio App.3d 453, 2010-Ohio-1584, 928 N.E.2d 795. The gun used in the murder in Crosby was not recovered. Similarly, the gun recovered in the present case could not be tied to Zagorski‘s murder. In Crosby, the state introduced evidence of past instances of gun
{¶ 83} There is no evidence that appellant possessed a revolver the night of the shooting nor at any point near the date of the offense. There is no evidence linking the gun that Jackson allegedly observed appellant to possess at some prior time to the gun recovered from Tidmore nor is there any evidence connecting Tidmore‘s gun to Zagorski‘s shooting.
{¶ 84} Without some link between appellant‘s alleged gun possession “in the past” and the present criminal act, the testimony regarding appellant‘s prior possession of a gun could have been used only for one purpose in this case and that was to prove that appellant acted in conformity with his implied reputation for carrying a firearm and that he was carrying a firearm the night of Zagorski‘s murder. This was an improper purpose for admitting other-acts evidence and the trial court‘s admission of such evidence was error. See State v. Craig, Cuyahoga App. No. 93137, 2010-Ohio-1857, at ¶31.
{¶ 85} Though the court erred in the admission of this other-acts evidence, appellant did not object at trial and in light of the other evidence discussed in our
{¶ 86} Appellant‘s seventh assignment of error is overruled.
{¶ 87} For ease of discussion we address appellant‘s ninth assignment of error out of order. Appellant argues in his ninth assignment of error that the cumulative effect of the errors addressed above deprived him of a fair trial.
{¶ 88} In State v. DeMarco (1987), 31 Ohio St.3d 191, 598 N.E.2d 1256, the Ohio Supreme Court recognized the doctrine of cumulative error. Pursuant to this doctrine, a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal. State v. Baker, Cuyahoga App. No. 95300, 2011-Ohio-2784, at ¶59, citing State v. Garner (1995), 74 Ohio St.3d 49, 656 N.E.2d 623.
{¶ 89} “In order to find ‘cumulative error’ present, we first must find that multiple errors were committed at trial. We then must find a reasonable probability that the outcome of the trial would have been different but for the combination of the separately harmless errors.” State v. Djuric, Cuyahoga App. No. 87745, 2007-Ohio-413, at ¶52. (Internal citations omitted.)
{¶ 90} To affirm in spite of multiple errors, we would have to determine that the cumulative effect of the errors is harmless beyond a reasonable doubt. State v. Williams, Cuyahoga App. No. 94261, 2011-Ohio-591, at ¶25, citing DeMarco at 195, 509 N.E.2d 1256 (stating that the errors can be considered harmless if there is overwhelming evidence of guilt or other indicia that the errors did not contribute to the conviction).
{¶ 91} In this case, multiple errors were cоmmitted at trial. As previously discussed, the prosecutor elicited and the court allowed Jefferson to speculate as to events that were unquestionably established to be beyond his personal knowledge, the trial court allowed the introduction of the revolver recovered from Tidmore despite the fact that there was absolutely no evidence linking this particular revolver to this case and finally, and most importantly, as we addressed in appellant‘s seventh assignment of error, the trial court improperly admitted other-acts evidence that we concluded to be harmless by itself. However, in conjunction with these other errors and considering that the record does not contain overwhelming evidence of appellant‘s guilt, we find that the accumulation of these errors was unfairly prejudicial. There is a reasonable probability that, but for the аbove errors, the result of the proceeding would have been different. Therefore, we cannot say that the cumulative effect of the errors was harmless beyond a reasonable doubt.
{¶ 92} Appellant‘s second, seventh, and ninth assignments of error are sustained, rendering the eighth assignment of error moot. See
{¶ 93} Accordingly, the judgment of the lower court is reversed and this matter is
Judgment reversed and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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 A. GALLAGHER, JUDGE
PATRICIA A. BLACKMON, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
Appendix
Assignment of Error No. 1:
“Benjamin Williams‘s convictions are not supported by legally sufficient evidence as required by State and Federаl Due Process.”
Assignment of Error No. 2:
“Benjamin Williams‘s convictions are against the manifest weight of the evidence.”
Assignment of Error No. 3:
“The trial court violated Benjamin Williams‘s Due Process right to a fair trial when it did not provide a meaningful response to jury questions and permitted a
conviction on a theory of criminal liability on which the jury was not instructed.”
Assignment of Error No. 4:
“Benjamin Williams did not receive a fair trial as required by State and Federal Due Process because the jury failed to follow the trial court‘s jury instructions.”
Assignment of Error No. 5:
“Benjamin Williams‘s convictions for aggravated murder and aggravated robbery violate due process because they are inconsistent with the not guilty verdicts within the same count on the firearm specifications.”
Assignment of Error No. 6:
“Benjamin Williams was denied his Due Process right to a fair trial as a result of prosecutorial misconduct.”
Assignment of Error No. 7:
“The trial court plainly erred and violated Williams‘s Due Process right to a fair trial in admitting testimony regarding Williams being seen ‘in the past’ with a gun similar to the murder weapon.”
Assignment of Error No. 8:
“Benjamin Williams was denied effective assistance of counsel in violation of the Sixth and Fourteenth amendments to the United States Constitution and
Article 1, Section 10 of the Ohio Constitution . ”
Assignment of Error No. 9:
“The cumulative errors committed in this case deprived Benjamin Williams of a fair trial.”