author: KLATT, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Jordyn WADE, Defendant-Appellant.
    No. 16AP-674
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 15, 2018
    On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee. Argued: Seth L. Gilbert.
    On brief: The Law Office of Thomas F. Hayes, LLC, and Thomas F. Hayes, Columbus, for appellant. Argued: Thomas F. Hayes.
    DECISION
   KLATT, J.

{¶ 1} Defendant-appellant, Jordyn Wade, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas pursuant to jury verdicts finding him guilty of multiple counts of aggravated murder, murder, attempted murder, aggravated burglary, aggravated robbery, kidnapping, and associated firearm and criminal-gang specifications. A separate entry reflects conviction on a single count of having a weapon while under disability, an offense that was tried to the court.

{¶ 2} The charges against Wade arose out of a quadruple homicide that took place in a residence on East Hudson Street in Columbus, Ohio, in the early morning hours of June 13, 2015. A fifth victim, a teenage girl, survived a gunshot wound to her head and presented the state's prime testimony at trial.

{¶ 3} The surviving witness, T.N., testified that she was 17 years old at the time of trial, which took place approximately one year after the murders. On the evening of June 12, 2015, T.N. and her half-sister Tyajah decided to spend the night at the home of Michael Ballour, Tyajah's father. Ballour's friend, Daniel Sharp, was at the home. It was not unusual for T.N. and Tyajah to socialize and spend the night at Ballour's home. Upon their arrival at the house, Ballour gave Tyajah a new cell phone in anticipation of Tyajah's upcoming graduation.

{¶ 4} T.N. and Tyajah both fell asleep on a couch in the front room around midnight, but were awoken at approximately 3:30 in the morning by the entry of Robert Adams, whom T.N. knew from prior occasions as Rob, and two other individuals whom she did not recognize. Adams introduced these individuals to T.N. as "Wizzle" and "Angela."

{¶ 5} T.N. identified Wade at trial as the individual introduced to her as Wizzle on the night in question. Other testimony established that Angela was Angela Harrison, one of the four homicide victims.

{¶ 6} Shortly after this group arrived, T.N. and Tyajah stated that they were hungry, so Ballour suggested that Adams accompany them to get something to eat. Adams declined and suggested that Wade take the girls instead. Wade took T.N. and Tyajah to a Waffle House and then a McDonald's before returning to Ballour's house with food. Upon returning, they found a woman named Sabrina Turner present in the house. Turner left the premises shortly thereafter.

{¶ 7} T.N. and Tyajah ate their food on the couch while Wade stayed outside on the porch. Shortly thereafter, Adams and Ballour began to argue. Ballour attempted to leave the premises, but Adams dissuaded him. Adams summoned T.N. and Tyajah from the front room to the kitchen, where T.N. found Adams holding Ballour and Sharp at gunpoint. Adams ordered the four of them to the floor, and yelled for Wade to come in from the porch. Wade entered the kitchen, also holding a gun. When Adams ordered Ballour and Sharp to "[g]ive us everything that you have," Sharp gave Adams some cocaine. (Tr. at 268.) Ballour told Adams that he had something upstairs, and Adams sent Wade to retrieve this. Adams then announced to all of them that it would be too loud if they were shot in the kitchen, and ordered everyone to the basement.

{¶ 8} As T.N., Tyajah, Sharp, and Ballour descended the stairs, Adams ordered them to floor. T.N. observed that the woman who had arrived with Wade and Adams, Angela, was already in the basement hiding behind the washing machine. Wade, still holding his gun, descended into the basement and stood at the bottom of the stairs. At this point, Adams asked Wade "[s]hould I off them all?" Wade answered "yes." (Tr. at 272.) Adams then shot Sharp in the head. T.N. was close enough to see blood running down the chair where Sharp's head lay. Wade was still standing in the basement at the time of this gunshot.

{¶ 9} Adams then ordered Ballour to put his head under a pillow, putting his gun in Tyajah's face and threatening to shoot her in front of Ballour if Ballour did not comply. Ballour did not immediately cooperate, and said "I am not going to let you kill me in front of my kids." (Tr. at 275.) Adams then shot Ballour in the shoulder. Ballour got up and began wrestling, unsuccessfully, for the gun, then tried to flee up the basement stairs. Adams kept firing and Ballour collapsed onto the stairs.

{¶ 10} Adams then shot Angela in the head while she begged for her life, and shot Tyajah, who was also pleading for her life. Turning to T.N., he shot T.N. once in the back of the head. The bullet travelled through T.N.'s scalp, exited, and removed the top of her ear. Unsure of the severity of her own injuries and those of the other victims, T.N. lay motionless until Adams went back up the stairs. T.N. tried unsuccessfully to wake her sister, then again lay motionless and held her breath when someone came back down the stairs. She was unable to identify this person because she could not look without betraying the fact that she was alive. She heard someone pacing around the basement for a brief period, and then heard someone say from the top of the stairs "[c]ome on, cuz." (Tr. at 279.) The person in the basement thereupon ran back up the stairs and T.N. deduced from the sound of the back door shutting that both men had left the house.

{¶ 11} Making her way over Ballour's body lying on the basement steps, T.N. cautiously left the basement. She noted that Tyajah's new cell phone was missing from the place where they had placed it to charge the night before. T.N. exited the house through the front door and found a young man on the street, whom she asked to call the police.

{¶ 12} After the police arrived, T.N. was taken to the hospital and treated for her gunshot wound. Medical personnel removed bullet fragments from her head wound and completed removal of the portion of her ear damaged by the bullet. Later, T.N. discovered more bullet fragments in her hair extensions and turned these over to police.

{¶ 13} At this point in the testimony, T.N. identified photographs showing the bodies as they appeared in the basement, the general state of the house, and the red SUV driven by Wade on the night in question. She also was asked to review a video taken by the Waffle House surveillance system, and identified herself, her sister, and Wade as persons present. She also described the distinctive white-and-red cell phone case Wade used on the night of the shootings, and identified that cell phone as an exhibit.

{¶ 14} T.N. then testified regarding her review of two photo arrays presented by investigating officers. For the first array of six photographs, she presented a written statement " '[n]one of the photos look familiar. No. 2 is the closest.' " (Tr. at 296.) On the second array, she identified Wade as "Wizzle" from the six photographs presented: "No. 2 is who I recognize as the one that was involved in the shooting." (Tr. at 297.) From a third photo array, she picked out Adams. T.N. then made a courtroom identification of defendant as the "Wizzle" she had seen at the crime scene and identified from the photo array.

{¶ 15} Officer Darrell Fitzpatrick, of the Columbus Division of Police, testified that he responded to a radio report of a woman in distress in the vicinity of Hudson Street and Cleveland Avenue. There were other officers already present at the house, so Officer Fitzpatrick directed his attention to T.N., who stated that she had been shot in the head. Officer Fitzpatrick accompanied her a short distance to where medical personnel were located, in order to get T.N. away from the scene, which was not yet secure. T.N. described the situation preceding and during the shooting at Ballour's house, and stated that she had survived by "playing dead." (Tr. at 66.) Officer Fitzpatrick stayed with T.N. while she was treated at the scene and then transported to Grant Hospital, until other investigating officers came to the hospital.

{¶ 16} Officer Steven Shope, of the Columbus Division Police, testified regarding his response to the crime scene immediately after the shooting. Upon arrival, he found a young female victim already attended to by other personnel, so he and another officer went into the home identified as the scene of the shooting. As the first officers to enter the unsecured scene, they entered with guns drawn, unsure of the situation. While other officers cleared the second floor, Officer Shope noticed that the door in the kitchen leading to the basement stairs was open and a male with an apparent bullet wound to the head lying face down on the steps. The officers proceeded downward past the body on the steps and discovered three more victims, all shot in the head and all dead, including one victim squeezed into a small space between the clothes washer and wall. Officer Shope did not notice any sign of forced entry or damage to the door when he entered the property.

{¶ 17} Officer Daniel Yandrich, of the Columbus Division of Police, corroborated Officer Shope's testimony regarding their initial entry on the crime scene. Officer Yandrich was the first officer to arrive and he saw an injured female standing with another male, and she indicated the house on Hudson where the shooting occurred. On entering the house with Officer Shope, he noticed blood on the door, which Officer Yandrich assumed was from T.N. leaving after being shot. In the basement, the officers noted spent shell casings on the floor, an unspent round, and bullet strikes into woodwork. They turned the scene over to crime scene investigators.

{¶ 18} Detective Kevin Jackson, of the Columbus Division of Police, testified that he was a member of the crime scene search unit assigned to the case. He corroborated the other officers' testimony regarding the position of the bodies and the distribution of blood across the stairs and basement floor. He collected spent shell casings and noted bullet strikes on appliances and woodwork.

{¶ 19} The crime scene investigators collected food and beverage containers, cigarette butts, and swabs of blood and organic matter for DNA sampling. After analysis, these failed to provide useful information. The fingerprints collected at the scene were likewise inconclusive.

{¶ 20} Detective Robert Connor, of the Columbus Division of Police, testified that he was assigned to the homicide division and was the lead detective on the case. Based on a brief report by another investigator, who had spoken with T.N., Detective Connor began with the information that T.N. could identify a known individual by the name of Rob, and an individual that she had met for the first time that night and known to her only as Wizzle.

{¶ 21} Information obtained by patrol officers from confidential informants led Connor to identify Wade as the Wizzle in question. Based on this information, he compiled photo arrays from which T.N. selected Wade as Wizzle. Investigators obtained a warrant and arrested Wade. At the time of arrest, they secured Wade's cell phone and shoes. While the cell phone was later identified by T.N. as matching the one she had seen on the night in question, the shoes did not provide a useful match to bloody footprints at the scene of the crime.

{¶ 22} Based on information obtained from Wade's cell phone, and T.N.'s identification of a person named "Rob" as the other gunman, other officers executed a search warrant for Robert Adams. They failed to apprehend Adams but did secure Adams' cell phone and some of his clothing. The searchers also obtained and impounded an Isuzu SUV that matched the description given by T.N., including detailed descriptions of interior wear and upholstery rips. Investigators then obtained surveillance video from Waffle House and McDonald's on the night in question.

{¶ 23} Sabrina Turner testified regarding her experiences just before the slayings. She stated that on that night she went to Ballour's house, hoping to obtain and smoke crack cocaine. She was a frequent visitor at the house for that purpose. When she arrived, a man she knew as Robbie was present, as well as Sharp and Ballour. Later, two girls arrived with another man. She recognized one as Ballour's daughter, but did not know the other. Turner identified Wade in open court as the individual who arrived with the two girls.

{¶ 24} The trio were carrying Waffle House food packages when they arrived. Turner thereafter went upstairs with Ballour briefly to smoke crack cocaine, and then came back downstairs and left the house. She went around the corner to an acquaintance's house and dozed off on the couch. Eventually, she returned to the vicinity of Ballour's house because she heard that five people had just been killed there. She approached police at the scene to ask what had happened, but did not immediately tell them what she knew of the events preceding the shootings. Later, two police officers stopped her on the street, whereupon she described what she knew.

{¶ 25} Turner testified that she knew "Robbie" from prior encounters, but had never seen Wade. At the time she left the house, there appeared to be no conflict among the persons present. On cross-examination, Turner described her own ongoing drug problems. She stated that her own pending misdemeanor charges on unrelated offenses were not a factor in her decision to testify in the case.

{¶ 26} Tolliver Cunningham testified that he was the individual who first spoke to T.N. and assisted her when she approached him on the street after the shooting. He did not know T.N. at the time, but she waved at him and appeared in distress. As he came closer he saw that she was covered in blood. T.N. immediately said that she needed help and there were dead persons in the basement of a nearby house. T.N. was sobbing and shaking badly. Cunningham let T.N. use his phone to call her mother, at which time T.N. began to faint. Cunningham retrieved his phone and spoke with T.N.'s mother. Cunningham began yelling for help, but several onlookers who were observing from their porches refused to intervene. Holding T.N. in his arms, he flagged down a passing police car. Cunningham explained to the police that he did not know more about what was going on beyond his interaction with T.N.

{¶ 27} The state presented cell phone tower analyses to establish that, between 3:30 a.m. and 8:00 a.m. on the morning of the shooting, calls to and from Wade's cell phone were relayed to cell phone towers near the crime scene, near a McDonald's restaurant on 17th Avenue, and near the Waffle House restaurant on Cassidy Avenue. Some of these calls were made to Adams' cell phone, which was using the same cell towers.

{¶ 28} In order to support the gang specifications in the indictment, the state also presented police testimony to establish that Wade was a known member of certain gangs. This testimony will be examined in more detail below in the discussion of Wade's second assignment of error.

{¶ 29} The defense rested without presenting witnesses.

{¶ 30} The jury returned guilty verdicts on all counts and specifications except for an acquittal for one aggravated robbery count. The guilty verdicts included two forms of aggravated murder with respect to each deceased victim, two forms of murder for each deceased victim, one count of attempted murder with respect to T.N., aggravated robbery with respect to each victim except Angela Harrison, one count of kidnapping with respect to each victim, and firearms and gang-related specifications. On the sole count tried to the bench, the trial court found Wade guilty of one count of having a weapon under disability. After merging counts where appropriate, the trial court sentenced Wade to a total of 172 and one-half years to life in prison.

{¶ 31} Wade has timely appealed and brings the following assignments of error:

[1.] Jordyn was deprived of his constitutional right to a fair trial when the court (1) overruled the defense objection to incorrect police testimony that blood was found on Jordyn's shoes and that the blood matched that of Michael Ballour, and failed to ever strike that testimony from the record, (2) failed to immediately inform the jury that the testimony is incorrect, and (3) later failed to instruct the jury that the jury was required to accept a "corrective" stipulation of the parties.
[2.] The convictions on the "criminal gang" specifications are not supported by the sufficient evidence and are contrary to the manifest weight of the evidence.
[3.] The Court overruled the defense's objection to evidence of prior bad acts allegedly committed by Jordyn.
[4.] Jordyn was deprived of his constitutional right to effective assistance of counsel.
[5.] The convictions on Counts 2 and 6 are not supported by sufficient evidence and are contrary to the manifest weight of the evidence.
[6.] The trial court sentenced Jordyn to an effective life sentence without the possibility of parole, without making the required factual finding that any of Jordyn's offenses are "homicide offenses" for Eighth Amendment purposes.
[7.] The trial court sentenced Jordyn to an effective sentence of life imprisonment without the possibility of parole, without adequately considering Jordyn's "youth and its attendant characteristics" and without finding that Jordyn's crimes do not reflect "transient immaturity."
[8.] The trial court failed to consider Jordyn's youth as a mitigating factors.
[9.] Clerical error in sentencing entry.
[10.] Clerical error in sentencing entry.

{¶ 32} Wade's first assignment of error alleges that certain testimony of Detective Connor constituted knowing use of false or perjured testimony, and thus a denial of due process pursuant to United States v. Lochmondy , 890 F.2d 817, 822 (6th Cir.1989). "To establish a denial of due process from the use of false testimony or false evidence, [the defendant] must show: (1) the statement was false; (2) the statement was material; and (3) the prosecutor knew it was false." State v. Howard , 10th Dist., 2016-Ohio-504, 59 N.E.3d 685, ¶ 40. Even if the state has not solicited the false evidence, there may be a denial of due process where the state allows it to go uncorrected when it appears. Id. at ¶ 40, citing Lochmondy at 822. "Due process is violated if there is a 'reasonable likelihood that the false testimony could have affected the judgment of the jury.' " State v. Johnson , 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 82, quoting Lochmondy at 822.

{¶ 33} The testimony in question is as follows:

Q. You took the tennis shoes from Jordyn Wade when he was arrested, right?
A. Yes, I did.
Q. And compared them to the prints that they found in the kitchen floor?
A. Correct.
Q. And there is not a match?
A. No, it was not.
Q. Did they do any analysis on the bottom of the shoes, of those shoes to see if there was any blood on there that might match up to the victims?
A. Yes, they did.
Q. And that was not a match?
A. It was a match to Michael Ballour's blood.

(Tr. at 389-90.)

{¶ 34} After the defense objected to this testimony, which manifestly surprised both prosecution and defense with an apparent assertion that there was a match between blood from a victim and blood found on Wade's shoes at the time of his arrest, the prosecution and defense agreed that the following stipulation be read to the jury:

"Stipulations between the parties. No. 1: If Matthew Cogleton from BCI & I were called to testify, he would state that he compared the shoe lift in the kitchen floor to the shoes collected from Jordyn Wade and there was no match.["]
"No. 2: Detective Connor testified that there was a match of the blood found at the scene. This is, in fact, true. However, it is a match of the blood at the scene to Michael Ballour's blood standard and no blood was found on the bottom of Jordyn Wade's shoe.["]

(Tr. at 570.)

{¶ 35} The record simply does not support any attempt to intentionally mislead the jury, and to the extent that Detective Connor's testimony was misleading, prosecution did not allow it to go uncorrected. Reviewing Detective Connor's pertinent testimony made while under cross-examination by Wade's counsel, the detective began with a clear and unequivocal statement that Wade's shoes did not match the bloody footprints at the scene of the crime. Immediately thereafter, defense counsel asked if there was blood found on Wade's shoes and whether it matched any of the victims. Detective Connor replied that there was a match with the blood of Michael Ballour. A fair reading of Detective Connor's testimony, in light of other testimony by him and other investigators regarding the general lack of physical evidence linking Wade to the scene, is that the detective misunderstood and answered a question that had not been asked, i.e., was there a match between bloody footprints in the house and the blood of one of the victims. To the extent this statement created confusion, which the prosecution readily acknowledged it might, the prosecution did not allow it to go uncorrected. It was suitably remedied by the express stipulation read to the jury clarifying the state of the facts regarding blood at the scene. There is no indication that the prosecutors intended to mislead the jury with false evidence.

{¶ 36} Moreover, the state of the evidence in this case makes it highly improbable that the misleading statement resulted in prejudice, considering that two eye witnesses identified Wade with certainty and placed him at the scene that night. Under the test set forth in Johnson and Lochmondy , there is no "reasonable likelihood that the false testimony could have affected the judgment of the jury." Wade's first assignment of error is overruled.

{¶ 37} We next consider Wade's fifth assignment of error, which asserts sufficiency and manifest weight arguments with respect to two of his convictions for aggravated robbery. These include Count 2, aggravated robbery of Michael Ballour, and Count 6, aggravated robbery of T.N.

{¶ 38} The legal concepts of sufficiency of the evidence and weight of the evidence involve different determinations.

State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). As to sufficiency of the evidence, " 'sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." Id. , citing Black's Law Dictionary 1433 (6 Ed.1990). A determination as to whether the evidence is legally sufficient to sustain a verdict is a question of law. Thompkins at 386, 678 N.E.2d 541. When we review the sufficiency of the evidence upon appeal, we construe the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. As a result, when we review the sufficiency of the evidence, we do not on appeal reweigh the credibility of the witnesses. State v. Yarbrough , 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.

{¶ 39} The relevant inquiry on review of the sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis sic.) Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A reversal based on insufficient evidence has the same effect as a not-guilty verdict because such a determination "means that no rational factfinder could have voted to convict the defendant." Tibbs v. Florida , 457 U.S. 31, 41, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

{¶ 40} As opposed to the concept of sufficiency of the evidence, the court in Thompkins noted that "[w]eight of the evidence concerns 'the inclination of the greater amount of credible evidence , offered in a trial, to support one side of the issue rather than the other.' It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief." Thompkins at 387, 678 N.E.2d 541, quoting Black's Law Dictionary 1594 (6 Ed.1990) (emphasis supplied in Thompkins ). As the finder of fact, the jury is in the best position to weigh the credibility of testimony by assessing the demeanor of the witness and the manner in which he testifies, his connection or relationship with the parties, and his interest, if any, in the outcome. The jury can accept all, a part or none of the testimony offered by a witness, whether it is expert opinion or eyewitness fact, whether it is merely evidential or tends to prove the ultimate fact. State v. McGowan , 10th Dist. No. 08AP-55, 2008-Ohio-5894, 2008 WL 4885678, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

{¶ 41} When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a "thirteenth juror" and disagrees with the factfinder's resolution of the conflicting testimony. Id. , at 387, 678 N.E.2d 541. An appellate court should reverse a conviction as against the manifest weight of the evidence in only the most "exceptional cases in which the evidence weighs heavily against conviction," State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983), instances in which 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." Id.

{¶ 42} Wade argues on appeal that there is no evidence to establish that he actually committed a theft offense involving any property of Ballour or T.N., and thus he could not be convicted of aggravated robbery with respect to these two. Wade stresses that the jury did return an acquittal on Count 4, alleging aggravated robbery of Angela Harrison, and presumes that this was due to a comparable lack of evidence of theft.

{¶ 43} To the contrary, aggravated robbery in Ohio does not require proof of successful theft or actual items taken: "No person, in attempting or committing a theft offense * * * shall do any of the following: * * * [h]ave a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, branish it, indicate that the offender possesses it, or use it * * * [or] [i]nflict, or attempt to inflict, serious physical harm on another." (Emphasis added); R.C. 2911.01(A) ; see also State v. Carter , 89 Ohio St.3d 593, 601, 734 N.E.2d 345 (2000) ("[A]ggravated robbery can be committed in the course of an 'attempted theft.' ").

{¶ 44} In addition to T.N.'s testimony specifically regarding the disappearance of Tyajah's new cell phone and Sharp's relinquishment of cocaine to the assailants, T.N. also testified that Adams, with Wade armed and present in the kitchen, ordered T.N., Tyajah, Sharp, and Ballour to the floor and ordered them to "[g]ive us everything that you have." (Tr. at 268.) When Ballour stated that he had "stuff" upstairs, Adams instructed Wade to go upstairs and find it. (Tr. at 268.) T.N.'s testimony thus establishes at the very least an attempted theft offense with respect to Ballour and T.N., and sufficiently supports Wade's conviction of aggravated robbery with respect to Ballour and T.N. These verdicts are not against the manifest weight of the evidence nor supported by insufficient evidence. Wade's fifth assignment of error is overruled.

{¶ 45} Wade's second assignment of error addresses the sufficiency and manifest weight of the evidence with respect to the criminal gang specifications attached to the 27 violent offenses for which he was convicted. Ohio's gang specification statute authorizes a trial court to impose an additional mandatory prison term of one, two, or three years upon a defendant who commits a felony offense of violence "while participating in a criminal gang." R.C. 2941.142 ; 2929.14(G). This court has rejected arguments asserting that the gang specification statute is void for vagueness. State v. Williams , 148 Ohio App.3d 473, 2002-Ohio-3777, 773 N.E.2d 1107 (10th Dist.).

{¶ 46} Wade does not dispute that the state established through testimony that he is a member of a criminal gang as defined in R.C. 2923.41(A) :

(A) "Criminal gang" means an ongoing formal or informal organization, association, or group of three or more persons to which all of the following apply:
(1) It has as one of its primary activities the commission of one or more of the offenses listed in division (B) of this section.
(2) It has a common name or one or more common, identifying signs, symbols, or colors.
(3) The persons in the organization, association, or group individually or collectively engage in or have engaged in a pattern of criminal gang activity.

{¶ 47} Instead, Wade argues that the state failed to prove that he committed the crimes for which he was convicted "while participating in" the gang. Wade argues that proof of that element would require evidence of a distinct nexus between the offenses and the defendant's gang membership.

{¶ 48} The state responds that there was sufficient evidence to establish that gang membership was sufficiently linked to the crime, based on circumstantial evidence regarding past activities of Wade and his gang, the nature of the crime, and the conduct of Wade and Adams in the course of the crime.

{¶ 49} The state presented the testimony of Detective Robert Vass, of the Columbus Division of Police, regarding Wade's membership and participation in the activities of the Windsor Terrace Banger Squad under the street name "Wizzle." Detective Vass recounted various incidents of gang-related crime in which Wade was involved, and the state submitted pictures taken from social media websites depicting Wade with other known members of the gang, displaying gang signs, and holding firearms. Detective Vass testified that gang members often commit crimes individually, outside the context of overt gang membership, in order to boost their own reputation within the gang and the reputation of the gang itself. (Tr. at 491-92.) The documentation regarding Wade's gang membership included non-criminal incidents in which Wade frequented known gang hangouts or congregated with other gang members.

{¶ 50} Evidence of this nature has been held sufficient, when considered in conjunction with the nature of the crime, to establish gang specifications. See, e.g., State v. Harris , 10th Dist. No. 15AP-683, 2016-Ohio-3424, 2016 WL 3249517, ¶ 27 ; State v. Dantzler , 10th Dist. No. 14AP-907, 2015-Ohio-3641, 2015 WL 5209331, ¶ 30 ; State v. Peterson , 10th Dist. No. 07AP-303, 2008-Ohio-2838, 2008 WL 2390781, ¶ 80-81. The state was not required to present evidence indicating that Wade overtly declared that he was committing the crime while participating as a gang member, and the jury could draw the necessary inference based upon testimony, circumstantial evidence, and the nature of the crime. There was legally sufficient evidence to sustain the specifications, and the verdicts were not against the manifest weight of the evidence. Wade's second assignment of error is overruled.

{¶ 51} Wade's third assignment of error asserts that the trial court erred by allowing Detective Vass, as part of the attempt by the state to establish Wade's participation in a gang, to testify to Wade's prior criminal activity. Wade contends that this allowed admission of improper other-acts evidence.

{¶ 52} The state submits that we must consider this assignment of error under a plain error standard, because Wade's counsel did not timely object at trial. After examining the record, we find that Wade's objection was sufficiently contemporaneous with the objectionable material, and we need not apply the plain error standard here. See generally State v. Murphy , 91 Ohio St.3d 516, 532, 747 N.E.2d 765 (2001).

{¶ 53} Trial court decisions regarding the admissibility of other-acts evidence under Evid.R. 404(B), like other evidentiary determinations, lie within the sound discretion of the trial court. On appeal, we address alleged error in this respect under an abuse-of-discretion standard of review. State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528. Evid.R. 404(B) prohibits introduction of evidence regarding crimes, wrongs, or acts, different from those for which the defendant is on trial, in order to prove the character of a defendant, and in order to show action in conformity therewith. State v. Curry , 43 Ohio St.2d 66, 330 N.E.2d 720 (1975) ; State v. DeMarco , 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987). Such evidence is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake. Id. The interaction between Evid.R. 404(B), and proof of gang specifications under R.C. 2923.41(A), presents a delicate balance for the trial court, because proof of gang membership and participation will necessarily involve testimony regarding the defendant's past criminal activity. However, because proof of such participation and membership is an element of the gang specification, relevant evidence regarding such conduct, i.e., other acts, is not other-acts evidence because it goes to proof of an element of a charged crime. Peterson at ¶ 59. Bearing in mind the inherent difficulty in reconciling these legal requirements, we find that the trial court in the present case did not err in allowing Detective Vass's testimony regarding Wade's past conduct, some of it criminal in nature, in order to prove that Wade was a member of the Windsor Terrace Banger Squad. Wade's criminal history and past conduct were relevant to prove the gang specification. Wade's third assignment of error is overruled.

{¶ 54} Wade's fourth assignment of error asserts that he was denied the effective assistance of trial counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. In order to establish a claim of ineffective assistance of counsel, a defendant must first demonstrate that his trial counsel's performance was so deficient that it was unreasonable under prevailing professional norms. Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must then establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

{¶ 55} "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances the challenged action 'might be considered sound trial strategy.' " Id. at 689, 104 S.Ct. 2052, citing Michel v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). A verdict adverse to a criminal defendant is not of itself indicative that he received ineffective assistance of trial counsel. State v. Hester , 45 Ohio St.2d 71, 75, 341 N.E.2d 304 (1976).

{¶ 56} The first instance of ineffective assistance, Wade asserts, occurred when defense counsel did not object to the prosecution's gang-participation evidence. Because we have found no error in the presentation of this evidence, and in fact trial counsel did object to the evidence, this aspect of counsel's conduct does not support a finding of ineffective assistance.

{¶ 57} The second aspect of trial counsel's performance attacked on appeal is that counsel should have impeached Detective Connor's erroneous testimony regarding Ballour's blood matching blood on Wade's shoe. The record does establish that counsel did impeach this testimony through use of an appropriate stipulation readily entered into by the state.

{¶ 58} Wade's final ineffective assistance claim is that trial counsel should have objected to Detective Connor's testimony that patrol officers had identified Wade as "Wizzle," through the use of confidential informants and patrol officer knowledge. Wade asserts that this was hearsay evidence to establish identity. The state responds that this evidence was not introduced to establish the truth of the matter asserted, but to explain why Wade's picture was included in an ultimate photo array. See State v. McGrapth , 10th Dist. No. 11AP-117, 2011-Ohio-6130, 2011 WL 5924422, ¶ 7-9. We need not in this case test the limits of backdooring such information, however, because the information could in no way have been prejudicial. During Detective Connor's testimony, he confirmed that Wade bore tattoos on his forearms reflecting the "Wizzle" nickname, and the court even granted, over objection, the state's request to have the defendant display these tattoos for the jury. (Tr. at 359-61.) Wade's fourth assignment of error is overruled.

{¶ 59} Wade's sixth, seventh, eighth, ninth, and tenth assignments of error all allege error in the substance or form of the sentencing entry in this case. Wade, however, withdrew the sixth assignment of error at oral argument of the matter before this court. It will not be further addressed.

{¶ 60} The state's brief on appeal concedes error with respect to assignment of error seven, which argues that the trial court failed to explicitly consider Wade's youth and attendant circumstances as a mitigating factor at sentencing. "A court, in exercising its [sentencing] discretion under R.C. 2929.03(A), must separately consider the youth of a juvenile offender as a mitigating factor before imposing a sentence of life without parole." State v. Long , 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, paragraph one of the syllabus. The state concedes that the sentence imposed in the present case is the "functional equivalent" of a life-without-parole sentence because it consists of consecutive prison terms exceeding a juvenile's life expectancy. State v. Moore , 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, ¶ 60-62 (addressing non-homicide offenses, but discussing the functional-equivalent principle of life sentencing).

{¶ 61} In addition to the concession of sentencing error expressed in the state's brief with respect to the seventh assignment of error, the state at oral argument conceded error with respect to Wade's eighth assignment of error, which also addresses the trial court's failure to consider Wade's youth as a mitigating factor when imposing sentence. This assignment is likewise sustained.

{¶ 62} Because the state concedes that the trial court did not comply with R.C. 2929.03(A) and (B), as explained in Long , we must sustain Wade's seventh and eighth assignments of error, vacate his sentence and remand the matter for re-sentencing. Wades ninth and tenth assignments of error, which address various alleged clerical errors in the sentencing entry, are thereby rendered moot.

{¶ 63} In summary, Wade's first, second, third, fourth, and fifth assignments of error are overruled. Wade has withdrawn his sixth assignment of error. The state concedes error in the seventh and eighth assignments of error, which are sustained, and the ninth and tenth assignments of error are moot. Based upon the foregoing, we affirm Wade's convictions for all the crimes for which he was convicted, but vacate his sentence and remand the matter to the trial court for further proceedings.

Judgment affirmed in part; reversed in part; case remanded.

SADLER and BRUNNER, JJ., concur.


source: Caselaw Access Project

author: HORTON, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Lorenzo D. WILLIAMS, Defendant-Appellant.
    No. 16AP-350
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 15, 2018
    On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Michael P. Walton.
    On brief: Yavitch & Palmer, Co., L.P.A., and Jeffery A. Linn, II, Columbus, for appellant. Argued: Jeffery A. Linn, II.
    DECISION
   HORTON, J.

{¶ 1} After a bench trial in the Franklin County Court of Common Pleas, defendant-appellant, Lorenzo D. Williams, was convicted on two counts of robbery under R.C. 2911.02. Williams now appeals asserting errors in the admission of evidence and the trial court's failure to separate witnesses, as well as the legal insufficiency and manifest weight of the evidence used to convict him. For the reasons that follow, we affirm.

I. FACTS & PROCEDURAL BACKGROUND

{¶ 2} On January 7, 2016, Williams was indicted on one second-degree felony count of robbery and one third-degree felony count of robbery under R.C. 2911.02. The second-degree felony count alleged that Williams did "inflict, attempt to inflict, or threaten to inflict physical harm" on the victim, Howard C. Boquist, Jr. ("Boquist"), while attempting to commit or while committing theft. (Jan. 7, 2016 Indictment.) The third-degree felony count alleged that Williams did "use or threaten the immediate use of force" while attempting to commit or while committing theft against the victim. (Indictment.)

{¶ 3} Williams waived his right to a jury trial and represented himself before the trial court at a bench trial that began on March 28, 2016. (Tr. Vol. I at 17.)

{¶ 4} Boquist testified that he was a double amputee from a diabetes infection. Although Boquist could "walk without the help of a cane or a walker," he often used a wheelchair to minimize "unnecessary walking." (Tr. Vol. II at 59.) He worked part-time making sponsored placemats for restaurants and as a church music director. (Tr. Vol. II at 60.)

{¶ 5} Between 10:30 and 11:00 p.m. on December 28, 2015, Boquist went to the Chase Bank ATM at the corner of North 3rd and East Broad Street in downtown Columbus to deposit a $100 check. (Tr. Vol. II at 61.) Boquist was in a wheelchair at the time and arrived by bus. (Tr. Vol. II at 62.) At the ATM, he deposited the check and withdrew $20 for the next day's expenses.

{¶ 6} During the transaction, Williams was standing behind Boquist, who believed he was waiting to use the ATM. (Tr. Vol. II at 62-63.) Boquist testified that Williams said "I know you put some money in there," and demanded $20. (Tr. Vol. II at 64.) Williams claimed that his daughter was sick and would die if he did not obtain money to buy her medicine, and told Boquist "your life is more important than the money." (Tr. Vol. II at 65.) Boquist rolled away in his wheelchair in the direction of a nearby restaurant. He testified that he felt like he was "under a lot of pressure" and "had to do exactly what [Williams] said." (Tr. Vol. II at 65.) As he rolled toward the restaurant, Boquist gave Williams $20 "to get him off my back." (Tr. Vol. II at 66.)

However, Williams followed Boquist and "instructed-almost threatened" Boquist to return to the ATM. (Tr. Vol. II at 66.) Boquist feared that if he "made one false move," Williams would have taken his life. (Tr. Vol. II at 66.) Boquist believed that Williams had a gun because he kept his hand in his right coat pocket during the encounter. (Tr. Vol. II at 67.)

{¶ 7} Back at the ATM, Boquist put his card back in the machine. A series of preset withdrawal amounts appeared on the screen. Williams pressed $500, $400, $300, and $200 until the final amount dispensed. (Tr. Vol. II at 69.) Williams positioned himself to prevent Boquist from accessing the money, which dispersed in $20 bills. (Tr. Vol. II at 73.) Boquist then spotted a man walking east on Broad Street and yelled "help." (Tr. Vol. II at 74.) Williams ran away, and the man began to chase Williams. (Tr. Vol. II at 74.)

{¶ 8} The man Boquist had called out to was Kwame Danso ("Danso"), who worked as a cleaner for Capital Crossroads, an organization in downtown Columbus that provides security and cleaning services for property owners. (Tr. Vol. II at 5; Tr. Vol. I at 48-49.) In addition to cleaning, Danso would call a dispatcher if he saw anything wrong while working. (Tr. Vol. II at 7.) At 10:50 p.m. on December 28, 2015, Danso was on his way back to the office when he saw two men at the Chase Bank ATM at Third and Broad. Id. Danso testified that one of them called to him for help. The other man turned, saw Danso, and ran away. Danso used his radio to call his office and reported that someone had been robbed at the Chase Bank ATM. (Tr. Vol. II at 8-9.)

{¶ 9} Williams turned and began to run east on the north side of Broad Street. (Tr. Vol. II at 10-11.) Danso and several of his co-workers communicated over the radio with each other about Williams' position as they pursued him. (Tr. Vol. II at 12-13.) Danso met up with a co-worker during the chase, but they lost sight of Williams after he jumped a parking lot fence. (Tr. Vol. II at 14.) Danso and the co-worker split up to continue the search. Danso then met up with another co-worker, after which Williams reappeared near Gay and High Street. (Tr. Vol. II at 14-15.) Columbus police appeared and apprehended Williams on the southeast corner of that intersection. (Tr. Vol. II at 16.) Danso recognized Williams based on his clothing, which included blue plants and a red hoodie. (Tr. Vol. II at 16-17.) Danso and his co-workers had been running while chasing Williams. A detective briefly interviewed Danso to confirm that he had seen Williams at the ATM. (Tr. Vol. II at 18-19.)

{¶ 10} Several Columbus police officers who were at the scene testified at trial. Officer Zackary Weekley was in a patrol car in the area with his partner when a call came over the dispatch describing the robbery and chase in progress. (Tr. Vol. III at 95-98.) The suspect was described as a black male wearing a red toboggan and a dark shirt. Weekley personally observed Williams being chased, pulled the patrol car over, and arrested him. (Tr. Vol. III at 98-99.) In a search incident to the arrest, Weekley recovered $200 in $20 bills from Williams' pocket. The bills were "folded in half" when discovered. (Tr. Vol. III at 99-100.) Within ten minutes of the arrest, Boquist was brought to the scene and he identified Williams as the robber. (Tr. Vol. III at 103-04.)

{¶ 11} Officer Christopher Bailey also testified. On the day in question, he was working in uniform and in a marked cruiser as a special duty officer for Capital Crossroads. (Tr. Vol. III at 123.) This involved assisting their employees with security and being available on their radio system in case the employees needed a uniformed police officer. (Tr. Vol. III at 124.) Bailey heard Danso's report of the robbery over the radio system and immediately relayed the information to the Columbus police dispatcher, including a description of the suspect. (Tr. Vol. III at 125.) Bailey authenticated a compact disc recording of the radio transmission, which was admitted at trial as the state's exhibit H. (Tr. Vol. III at 130.)

{¶ 12} Williams objected to the admission of the recording, stating that he was at a disadvantage because he had only been able to listen to "snippets" of the recording before trial. (Tr. Vol. III at 128.)

{¶ 13} Detective Jack Morris, a robbery detective with the Columbus Police, took photographs of Williams and the money recovered from him after the arrest. (Tr. Vol. IV at 15-16.) He testified that the cash he photographed looked "fairly new" and the bills had "appeared to be folded on top of each other." (Tr. Vol. IV at 16-17.)

{¶ 14} Williams testified on his own behalf. He claimed that he was innocent and the case was one of "mistaken identity." (Tr. Vol. V at 4.) Williams testified that he had been drinking at a bar with a friend a few hours before he was arrested. At the bar, he bought drinks, gave the DJ money to play songs, and played pool. (Tr. Vol. V at 4, 8-9.) Williams used drugs during this period of his life and was able to afford them himself. (Tr. Vol. V. at 4-5.) Williams stated that the day before he went to the bar, he had $1,500 in $20 bills, and that he had posted a video of himself counting the money out on Facebook. (Tr. Vol. V at 5-6.)

{¶ 15} Williams recounted that he left for the bar with exactly $200 in cash because he planned to spend the night in a hotel with a female companion. (Tr. Vol. V at 9.) After leaving the bar, a friend of his drove him downtown, where the hotel was located. On the way, Williams took a mixture of illegal drugs including cocaine, heroine, and barbiturates. (Tr. Vol. V at 9-11.) After Williams got out of his friend's car, he tried to go back to it, but could not remember where it had been parked. (Tr. Vol. V at 14-15.) He noticed the Capital Crossroads employees following him and thought they were police officers. (Tr. Vol. V at 16.) Williams began to walk faster because it was cold and he wanted to get back to his friend's car, but was stopped and arrested after being seen by officers in a cruiser. (Tr. Vol. V at 17-18.) Williams admitted that he provided the officers with false information about his identity because he had outstanding warrants. (Tr. Vol. V at 22-24.)

{¶ 16} During cross-examination, the prosecution played a videotape of Williams being questioned by a detective after his arrest. (Tr. Vol. VI at 3.) During the questioning, Williams claimed to know nothing about a robbery. He stated that he was a homosexual who had been drinking in a park with his boyfriend before being arrested. (Tr. Vol. VI at 6.) After the tape played, Williams denied being a homosexual and stated that he did not remember the conversation on the recording. (Tr. Vol. VI at 10-11.) He acknowledged that what was said on the tape and what he had testified to in court were "two different stories." (Tr. Vol. VI at 14.) After Williams objected to the admission of the tape because he had not been able to view it before trial, the trial court excluded the videotape, stating that it was only of "marginal relevance." (Tr. Vol. VI at 35.)

{¶ 17} The trial court found Williams guilty of both counts of robbery and sentenced him to six years of incarceration. (Apr. 11, 2016 Jgmt. Entry.) Williams now appeals, and asserts the following assignments of error:

[I.] THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING EXHIBIT H AND ALLOWING TESTIMONY ON EXHIBIT I AFTER DISCOVERY RULE VIOLATIONS DEPRIVING APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT[S] TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.
[II.] THE TRIAL COURT ERRED BY FAILING TO INQUIRE INTO THE VICTIM'S STATEMENTS MADE AFTER HIS TRIAL TESTIMONY TO PROSPECTIVE WITNESSES DEPRIVING APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT[S] TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.
[III.] THE VERDICT RENDERED BY THE TRIAL COURT WAS NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE DEPRIVING APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT[S] TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.
[IV.] THE TRIAL COURT ERRED BY FINDING APPELLANT GUILTY AND THERE BY DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY PROVISIONS OF THE OHIO CONSTITUTION BECAUSE THE VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

II. FIRST ASSIGNMENT OF ERROR

{¶ 18} Williams' first assignment of error asserts that a discovery violation occurred under Crim.R. 16 because he did not have an adequate opportunity to review exhibit H and exhibit I before trial and the trial court's rulings concerning these exhibits infringed on his constitutional right to due process.

{¶ 19} Crim.R. 16, which governs discovery in criminal proceedings, exists "to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large." Crim.R. 16(A). The prosecution must provide any evidentiary materials "which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial" upon written request of the defendant. Crim.R. 16(B). If a party fails to comply with these disclosure requirements, the trial court has the discretion to "order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances." Crim.R. 16(L)(1).

{¶ 20} Appellate courts apply an abuse of discretion standard to evidentiary rulings, including rulings to exclude or admit evidence subject to the discovery provisions of Crim.R. 16. State v. Sage , 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus ("The admission or exclusion of relevant evidence rests within the sound discretion of the trial court"); State v. Parson , 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983) (applying abuse of discretion standard to a ruling under Crim.R. 16 ).

{¶ 21} The Supreme Court of Ohio has held that "prosecutorial violations of Crim.R. 16 result in reversible error only when there is a showing that (1) the prosecution's failure to disclose was willful, (2) disclosure of the information prior to trial would have aided the accused's defense, and (3) the accused suffered prejudice." State v. Jackson , 107 Ohio St.3d 53, 79, 2005-Ohio-5981, 836 N.E.2d 1173, citing Parson .

{¶ 22} As an initial matter, we note that all three of the Parson factors must be present to demonstrate reversible error under Crim.R. 16. State v. Davis , 10th Dist. No. 08AP-443, 2009-Ohio-1375, 2009 WL 790413, ¶ 25-27 (applying Jackson , which "sets forth the three [ Parson ] elements in the conjunctive"); State v. Wiley , 10th Dist. No. 10AP-679, 2011-Ohio-3595, 2011 WL 2905582, ¶ 15. Thus, Williams' admission that "it is clear that the State did not willfully commit a discovery violation" precludes any demonstration of error under Crim.R. 16. (Appellant's Brief at 18.) He acknowledges that the prosecution attempted to provide him with the materials. However, due to the jail's policy against allowing detainees access to compact discs and his own decision to proceed without an attorney intermediary who might have been able to assist him, he was only able to access a portion of the radio transmissions in exhibit H before trial. Id.

{¶ 23} Thus, Williams cannot demonstrate error under Crim.R. 16. However, even if prosecutors had willfully withheld evidence from him, Williams fails to demonstrate error under the second and third Parson factors with regard to either exhibit. Exhibit H contained recordings of the police radio transmissions that occurred during the pursuit. (Tr. Vol. III at 127-28.) Williams did review "snippets" of the recording before trial, but he does not explain how reviewing the rest of the recording would have aided his defense. The portion that was played during trial was very brief and consisted mainly of a dispatcher describing an African-American man wearing "possibly a red toboggan, red shirt, and blue jeans" suspected of committing a robbery, as well as updates on the suspect's location during the chase. (Tr. Vol. III at 131-35.) Williams asserts that access to this recording would have helped him "point out the inconsistencies involving the evidence" and "assist [him] in his cross examination of all witnesses," but does not describe even one of these inconsistencies or how the information on the recording would have assisted his cross-examination of witnesses. (Appellant's Brief at 19.)

{¶ 24} Furthermore, Williams fails to explain the prejudice required under Parson . He simply makes the conclusory assertion that he was prejudiced by the admission of exhibit H. Id. However, as noted, Williams points to no inconsistent statement by a witness that he was prevented from pointing out because of a lack of complete access to exhibit H before trial that might have allowed him to impeach a witness or otherwise undermine the state's case against him. Without some explanation of how his defense suffered a disadvantage that pretrial review of exhibit H would have prevented, he cannot demonstrate the prejudice required by Parson .

{¶ 25} Williams also fails to demonstrate that trial court's ruling on exhibit I was erroneous under Parson . The exhibit consisted of a video recording of a detective questioning Williams after his arrest. After the trial court reviewed the video, it sustained Williams' motion to exclude it from evidence, stating that the video had "only marginal relevance." (Tr. Vol. VI at 35.) According to Williams, because the statements he made on the video were inconsistent with his trial testimony, reviewing it "left the court with a preconceived opinion that [he] was not truthful." (Appellant's Brief at 20.) This argument fails under Parson because, in addition to it being unclear how having access to the evidence before trial would have assisted his defense, Williams was not prejudiced by the trial court's decision to exclude evidence that would have damaged his credibility.

{¶ 26} What Williams appears to be asserting is that the trial court erred simply by reviewing the video in question. There are several problems with this argument. First, "the very nature of the duties of a judge often require him to have knowledge of inadmissible evidence. Every time he makes a ruling determining evidence inadmissible, he has to know what the inadmissible evidence consists of, and if he is the fact finder, he must eliminate same from his consideration in determining the facts." Hawkins v. Marion Corr. Inst. , 62 Ohio App.3d 863, 869, 577 N.E.2d 720 (3d Dist. 1990). Thus, the finder of fact's awareness of inadmissible evidence is an unavoidable consequence of a defendant's decision to forego a jury trial in favor of a bench trial.

{¶ 27} Furthermore, in a bench trial, "a judge is presumed to consider only the relevant, material and competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record." State v. Eubank , 60 Ohio St.2d 183, 187, 398 N.E.2d 567 (1979). See also State v. Proffitt , 12th Dist. No. CA2016-07-134, 2017-Ohio-1236, 2017 WL 1215275, ¶ 34, fn. 5, citing Eubank (stating that "in a bench trial, as a trial court is presumed to act properly in consideration of the evidence"). Williams has made no argument to address, much less overcome, the presumption of regularity the law attaches to the trial court's consideration of the evidence. As mentioned, the trial court excluded the evidence that Williams believes would have prejudiced him. Without some demonstration that the trial court improperly relied on the excluded evidence, the trial court's review of the video did not prejudice Williams. There is no basis for finding that a discovery violation occurred or that the trial court erred or abused its discretion under Parson . The first assignment of error is overruled.

III. SECOND ASSIGNMENT OF ERROR

{¶ 28} In Williams' second assignment of error, he argues that the trial court erred by failing to adequately "inquire into the victim's statements made after his trial testimony to prospective witnesses," thereby violating his right to a fair trial. (Appellant's Brief at 22.) He believes that the trial court should have applied a remedy applicable to a violation of an order for separation of witnesses under Evid.R. 615, such as a mistrial. (Appellant's Brief at 23-25.)

{¶ 29} A trial court's ruling concerning the separation of witnesses "is ordinarily a decision within the sound discretion of the trial court." State v. Smith , 49 Ohio St.3d 137, 142, 551 N.E.2d 190 (1990).

{¶ 30} The record reflects that Boquist spoke with several of the prosecution's other witnesses outside the courtroom, including Capital Crossroads employees involved in the pursuit of Williams. The prosecutor informed the trial court that she did not believe that the witnesses were talking about the trial, and that she "did separate them once it was brought to [her] attention." (Tr. Vol. IV at 5.) The trial court noted that, although there was no order of separation in place, attempts were usually made to keep witnesses separate. Id.

{¶ 31} In this case, Williams fails to demonstrate any abuse of discretion by the trial court. First, the discussion between the prosecution and the trial court does not support Williams' assertion that the trial court failed to make an adequate inquiry. The prosecution adequately communicated to the trial court the outlines of what had occurred. The trial court, mindful of its role as the trier of fact, discouraged the prosecution from repeating any specific non-testimonial statement by a witness, but did make inquiries as to which witnesses Boquist spoke to. (Tr. Vol. IV at 5-7.)

{¶ 32} Furthermore, as the trial court noted, there was no order in place for a separation of witnesses. However, even if such an order had been in place, Williams fails to demonstrate how this discussion would have violated it. Typically, an order for the separation of witnesses "is effective only to require the exclusion of witnesses from the hearing during the testimony of other witnesses." Evid.R. 615(A). It is true that the rule may encompass discussions between witnesses outside the courtroom. For example, in State v. Waddy , 63 Ohio St.3d 424, 434, 588 N.E.2d 819 (1992), an appellant argued that the pre-testimonial discussion between a detective and a witness amounted to a violation of a separation order, even though the rule only requires the separation of witnesses during testimony. The Supreme Court of Ohio noted that the purpose of such an order is to prevent witnesses from hearing other testimony and then "tailor[ing] their own testimony accordingly. Thus, a spectator or witness may not tell a prospective witness what has taken place in court if the judge has ordered separation of witnesses." Id. Waddy held that the discussion in question "violated neither the letter nor the spirit of the separation order" because nothing in the record indicated that the witnesses had tailored their testimony. Here, as well, there is no indication that the witnesses tailored or altered their testimony. Williams points to no suspicious similarities in their statements on the stand that might suggest that they coordinated their testimony. Because there is no indication of such irregularity in the record, Williams fails to demonstrate that the trial court erred in how it addressed the witnesses' out-of-courtroom discussion. The second assignment of error is overruled.

IV. THIRD AND FOURTH ASSIGNMENTS OF ERROR

{¶ 33} In the third and fourth assignments of error, Williams argues that the evidence was legally insufficient to convict him and that his conviction was against the manifest weight of the evidence.

{¶ 34} Two different legal standards apply to the legal sufficiency of the evidence and the manifest weight of the evidence. See State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), paragraph two of the syllabus ("The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different"). Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Jennings , 10th Dist. No. 09AP-70, 2009-Ohio-6840, 2009 WL 5062117, ¶ 37, citing Thompkins . "Sufficiency is a test of adequacy." Id. "The standard when testing the sufficiency of the evidence ' "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. Beverly , 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116, ¶ 15, quoting State v. McKnight , 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 70, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A reviewing court "will not disturb a verdict on appeal on sufficiency grounds unless 'reasonable minds could not reach the conclusion reached by the trier-of-fact.' " State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997).

{¶ 35} R.C. 2911.02, which defines the crime of robbery, states:

(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the offender's control;
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
(3) Use or threaten the immediate use of force against another.

{¶ 36} A conviction obtained under R.C. 2911.02(A)(2) is a felony of the second degree, while one under R.C. 2911.02(A)(3) is a felony of the third degree. R.C. 2911.02(B). Williams was convicted of one count under each.

{¶ 37} Williams argues that the evidence was legally insufficient to support either conviction. He argues that Boquist's testimony was "inconsistent" because he could not remember whether or not he initially gave the robber $20 or whether he was touched or not. Williams also argues the fact that the robber had kept his hand in his pocket was insufficient to prove the threat of physical harm or force necessary. (Appellant's Brief at 29-31.)

{¶ 38} Contrary to Williams' assertion, Boquist's testimony was not inconsistent. He stated that he gave Williams $20 after Williams demanded it from him. (Tr. Vol. II at 64-66.) Boquist also stated several times that Williams touched his fingers when grabbing the cash out of the ATM. (Tr. Vol. II at 73; Tr. Vol. III at 33, 39.)

{¶ 39} Based on the evidence presented, a rational trier of fact could have found both that Williams threatened to inflict physical harm and that he threatened the immediate use of force against Boquist when committing theft. Williams threatened Boquist by stating "your life is more important than the money," and Boquist felt that he "had to do exactly what [Williams] said." (Tr. Vol II. at 65.) Boquist testified that he was afraid that if he "made one false move," Williams would have taken his life with what Boquist believed was a gun, based on Williams keeping his hand in his right coat pocket during the robbery. (Tr. Vol II. at 66-67.) Williams demanded money from Boquist "three or four times." (Tr. Vol II. at 75.) In response, Boquist gave Williams $20, who then forced Boquist to withdraw an additional $200 from the machine. Williams was apprehended with $200 in crisp, new $20 bills and Boquist identified Williams as the robber. A rational trier of fact could conclude that Williams wanted Boquist to believe he had a gun by keeping his hand in his pocket and making the threatening statements that Boquist recounted. The state's evidence was legally sufficient to prove all of the applicable elements of robbery under R.C. 2911.02(A).

{¶ 40} Turning to the manifest weight of the evidence analysis, this court must consider the state's evidence as an additional, or "thirteenth juror." Thompkins at 387, 678 N.E.2d 541. After " 'reviewing the entire record,' " the appellate court " 'weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id. , quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist. 1983). " 'The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.' " Thompkins , quoting Martin .

{¶ 41} Williams argues that his conviction was against the manifest weight of the evidence, citing Boquist's purported inconsistency in testifying and the fact that the Capital Crossroads employees did not have the suspect in their sight at all times during the chase. Williams also points to differences between the evidence recovered from his person and Boquist's testimony, such as the fact that he did not have Boquist's wallet or bank card. (Appellant's Brief at 37-38.)

{¶ 42} After reviewing the record, we conclude that there was more than ample evidence to convict Williams of both counts of robbery. Boquist positively identified Williams as the robber, the cash found on Williams was consistent with the cash stolen from Boquist, and, as discussed, the threats made by Williams supported the elements of robbery. Furthermore, the testimony of all the Capital Crossroads employees filled in the timeline after the robbery and before the arrest. Williams points to no substantive inconsistency in the state's evidence that diminishes its weight.

{¶ 43} Contrary to Williams' assertion, Boquist's testimony was not inconsistent on any material fact used to support the state's case, as discussed. Furthermore, it was Boquist's identification of Williams after the arrest, not that of the Capital Crossroads employees, that was crucial to the state's case. Thus, the fact that the employees momentarily lost sight of the suspect during the chase does not detract from the weight of the evidence against Williams. Finally, the most rational inference for Williams not having Boquist's wallet on his person when apprehended is that a fleeing suspect will drop incriminating evidence, not that the police arrested the wrong person. Because Williams' conviction was not legally insufficient and was supported by the manifest weight of the evidence, the third and fourth assignments of error are overruled.

V. CONCLUSION

{¶ 44} Williams has failed to demonstrate that the trial court erred in its evidentiary rulings or its handling of the witnesses. Nor has he demonstrated the legal insufficiency of the evidence used to convict him of second and third degree robbery or that his convictions were against the manifest weight of the evidence. Accordingly, we overrule each of appellant's four assignments of error and affirm the judgment of the trial court.

Judgment affirmed.

SADLER and DORRIAN, JJ., concur.

      Williams' briefing makes several attempts to undermine Boquist's testimony without any citation to the record. For example, he asserts that Boquist "did not see the suspect's face," but cites to no portion of Boquist's testimony to support this assertion. (Appellant's Brief at 31.) During his testimony, Boquist described what the suspect was wearing at the time of the robbery, his height and his approximate age. (Tr. Vol. II at 76-77.) Furthermore, Boquist identified Williams at the scene as the robber. Id.


author: JUDGE EMANUELLA GROVES

text:
    CITY OF CLEVELAND, Plaintiff v. James P. BARKER, Jr., Defendant
    No.: 2018 TRD 003339
    Ohio Municipal Court, Cleveland.
    Date: March 21, 2018
    Attorney Lorraine Coyne, Assistant Prosecutor, appeared for Plaintiff and Defendant James P. Barker, Jr., appeared pro se.
    JUDGMENT ENTRY
   JUDGE EMANUELLA GROVES

Facts

On January 27, 2018, James P. Barker, Jr., Defendant, was traveling southbound on West 130th Street in Cleveland, Ohio and made a U-turn at the front opening of the grassy island to enter onto Interstate 480. Ohio Highway Trooper Michael Hounsel was stationed in the parking lot of Cabinets Granite and observed the Defendant make a U-turn in front of the "No U-turn" sign. The trooper pulled the Defendant over and cited him for disobeying a traffic control device in violation of O.R.C.4511.12, which states:

§ 4511.12 Obeying traffic control devices.
(A) No pedestrian, driver of a vehicle, or operator of a streetcar or trackless trolley shall disobey the instructions of any traffic control device placed in accordance with this chapter, unless at the time otherwise directed by a police officer.
No provision of this chapter for which signs are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official sign is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section of this chapter does not state that signs are required, that section shall be effective even though no signs are erected or in place.

Defendant testified and admitted he made the U-turn. Defendant described the area in which he made the U-turn. He stated West 130th Street is a divided street with a grassy green island which separates the north and southbound lanes. He further described the island has an opening at the front and back. However, there is only one "No U-turn" sign erected at the top of the grassy island. He presented a drawing of the area which showed a median strip in front of the island with no sign. The Defendant stated that there is not a "No U-turn" sign in front of the opening where he turned. The sign is behind the opening. The Defendant argued that the "No U-turn" sign was intended for the back opening of the island.

The Defendant stated, "according to the Ohio Manual on Uniform Traffic Control Devices (OMUTCD) Section 2B.18, signage for left turns and U-turns are supposed to be before the intersection." The trooper further explained Defendant's position and stated, "He turned at the intersection prior to the sign. Because it's a double intersection area, so he turned prior to the sign and there is a second section." The trooper further stated, "We've had people lose trials because they say the sign is for the first one (intersection)."

In short, drivers who make U-turns at both intersections have been cited and convicted for violating the one "No U-turn" sign. The issue is whether the Defendant can avoid conviction of the U-turn violation by his affirmative defense that the sign was not properly erected. Consequently, before the Defendant can be convicted, the court must find the sign was properly erected.

Prior to addressing Defendant's affirmative defense of violating 4511.12, it is helpful to state the statutory requirements in the erection of traffic control devices. Traffic laws and regulations are created to promote highway safety. The Department of Transportation has the responsibility to adopt a manual and specifications for a uniform traffic control devices system. All traffic control devices erected on a public road, street or alley shall conform to the state manual and specifications. OMUTCD requires uniformity in the form, placement and erection of signs. This uniformity ensures that all traffic signs are installed pursuant to the same general standards to ensure they are seen and recognized by the typical, ordinary observant driver.

Clearly, the statutory requirements were created to eliminate confusion for drivers. It is difficult to enforce a traffic law or regulation that is not clear to drivers. From the testimony of both the Defendant and trooper, drivers were confused about which intersection the sign regulated. "The functions of traffic control devices are to provide regulations, warnings and guidance information for road users." To be effective, these devices should meet five basic requirements: "(A) Fulfill a need; (B) Command attention; (C) Convey a clear, simple meaning; (D) Command respect from road users; and (E) Give adequate time for proper response."

A "No U-turn" sign is a movement prohibition sign governed by Section 2B.18 of the OMUTCD. Movement prohibition signs should be placed where they will be most easily seen by road users who might be intending to make the movement. "No U-turn" signs are to be placed at locations specified for "No Left Turns". Pursuant to the manual, if "No Left Turn" signs are used, at least one should be placed either over the roadway, at the far left-hand corner of the intersection, on a median, or in conjunction with the STOP sign or YIELD sign located on the near right-hand corner.

A driver is required to obey all traffic control devices, except such devices that are not properly positioned and sufficiently legible to be seen by ordinary observant persons. "Once it has been demonstrated that a traffic control device exits in a specific location, an inference arises that the traffic control device was placed pursuant to lawful authority." Given the inference that the sign has been placed properly, the burden switches to the defendant to rebut the inference that the sign was placed in compliance to the OMUTCD. The defendant's rebuttal of this inference is considered an affirmative defense. The prosecution then has the ultimate burden to prove the sign is compliant with OMUTCD. Consequently, a motorist can escape punishment when a traffic control device is not properly placed notwithstanding the fact it is legible.

The determinative question is whether the "No U-turn" sign was erected in compliance with OMUTCD. The manual requires the "No U-turn" sign to be placed in the median, which it is. However, the street is divided and the median is divided, which creates two intersections. The placement of one sign causes a driver to guess which intersection the sign regulates. Now certainly, the train of thought could be, if in doubt, the answer is the traffic control device governs. However, one should not have to guess. This intersection is the path for a driver to access Interstate 480 from a divided street. Since drivers are permitted to make U-turns, prohibition of making the turn should be clear. If the intent of the Department of Transportation is to prohibit U-turns at both openings, then a no "U-turn" sign should be erected at both. Given the position of the sign, this court finds it is not properly positioned to prohibit a U-turn at the opening where the Defendant turned. The court accepts Defendant's affirmative defense that the sign was not properly erected. Therefore, this court finds Defendant not guilty.

      City of Painesville v. Kincaid , 2015-Ohio-5532, 57 N.E.3d 152, ¶ 9 (11th Dist.) citing Maple Heights v. Smith , 131 Ohio App.3d 406, 408, 722 N.E.2d 607 (8th Dist. 1999) and City of Lyndhurst v. McGinness , 138 Ohio App.3d 617, 620, 741 N.E.2d 976 (8th Dist. 2000).

      Painesville citing R.C. 4511.09 and Maple Heights at 408, 722 N.E.2d 607 ; and Lyndhurst at 620, 741 N.E.2d 976 citing R.C. 4511.09.

      Lyndhurst at 620, 741 N.E.2d 976 citing R.C. 4511.11(D).

      Lyndhurst at 620, 741 N.E.2d 976 citing R.C. 4511.12.

      Id. ,Maple Heights at 408, 722 N.E.2d 607 citing R.C. 4511.12, and Painesville at ¶ 15 citing R.C. 4511.12(A).

      Ohio Manual of Uniform Traffic Control Devices § 2A.01.

      Ohio Manual of Uniform Traffic Control Devices § 1A.02:02.

      Ohio Manual of Uniform Traffic Control Devices § 2B.18:02.

      Ohio Manual of Uniform Traffic Control Devices § 2B.18:06.

      Ohio Manual of Uniform Traffic Control Devices § 2B.18:04.

      Maple Heights at 408, 722 N.E.2d 607 citing R.C. 4511.12 and Painesville at ¶ 15.

      Painesville at ¶ 19.

      Id.

      Id.

      Id.