The opinion
[Cite as State v. Johnson, 2016-Ohio-7937.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 16 JE 0002
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
D’ANDRE L. JOHNSON, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Jefferson County,
Ohio
Case No. 15 CR 83B
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Jane Hanlin,
Prosecuting Attorney
Jefferson County Justice Center
16001 State Route 7
Steubenville, Ohio 43952
For Defendant-Appellant: Atty. Aaron Richardson
4110 Sunset Boulevard
Steubenville, Ohio 43952
JUDGES:
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: November 23, 2016
[Cite as State v. Johnson, 2016-Ohio-7937.]
ROBB, J.
{¶1} Defendant-Appellant D’Andre L. Johnson appeals from his conviction
and sentence entered in Jefferson County Common Pleas Court for felonious assault
with an attendant firearm specification and discharge of a firearm over a public road.
Appellant received an aggregate sentence of eight years in prison for the convictions.
Two arguments are presented in this appeal. First, Appellant argues trial counsel’s
representation constituted ineffective assistance. He asserts counsel failed to object
to the admission of evidence of an AR-15 style assault rifle and to alleged
inadmissible hearsay evidence. The failure to lodge objections allegedly prejudiced
Appellant. He also argues trial counsel made bizarre and unsubstantiated
statements, which also resulted in prejudice. Second, Appellant argues the
conviction for discharge of a firearm over a public road is against the manifest weight
of the evidence.
{¶2} For the reasons expressed below, all arguments lack merit. The
conviction and sentence are affirmed.
Statement of the Facts
{¶3} On May 24, 2015 at approximately 2:45 a.m., shots were fired outside
Club 106, an after-hours club located at 601 South Street in downtown Steubenville,
Ohio. No one was injured during the shooting; however, property damage occurred
to multiple vehicles located in the bar’s parking lot.
{¶4} Patrolman Nate Cline of the Steubenville City Police Department heard
gunshots while he was patrolling the downtown area. Tr. 163-164. He immediately
alerted his fellow officers by radio and headed toward the South Street area where he
believed the shots were fired. Tr. 164-165.
{¶5} Patrolman Lance Bickerstaff arrived at the South Street area at the
same time as Patrolman Cline. Tr. 165. Patrolman Bickerstaff observed a vehicle
northbound on Webster Alley coming from South Street traveling towards Adams
Street. Tr. 139. Webster Alley is about a block from Club 106. The vehicle was
moving slowly and the headlights were not illuminated. Tr. 139. The Patrolmen
activated their overhead lights and stopped the vehicle. Tr. 140, 165.
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{¶6} Three individuals were in this car. The driver was Kevion Claiborne, the
front seat passenger was LeQue Hurst, and the backseat passenger was Appellant.
Tr. 167. The individuals were removed from the car, and the car was searched. Tr.
167. During the initial search a box of .380 caliber ammunition was found in the glove
box, and a .380 Bersa handgun was found under the rear seat of the vehicle. Tr.
156-157, 167-168, 170-171, 235. Patrolman Cline noticed Appellant’s left middle
finger was injured and had blood dripping from it. Tr. 174. He also observed a fresh
blood spot on the top of the vehicle’s trunk. Tr. 174.
{¶7} While the initial search was occurring, a security guard from Club 106,
Jeff Jones, informed Patrolman Cline that Appellant shot at him. Tr. 168, 294.
{¶8} Sergeant John Lemal was the supervising officer that evening. He
instructed Patrolman Chad Kuhn and Patrolman Bickerstaff to go to Club 106 and
see if there was any evidence of the shooting. Tr. 144, 202-204.
{¶9} Patrolman Bickerstaff found a cell phone in the grass across from Club
106. Tr. 144. He also found three casings on Webster Alley in close proximity to
each other – two .380 casings and a single .223 cartridge. Tr. 145-146.
{¶10} Patrolman Kuhn investigated Club 106’s parking lot and discovered
vehicles with windows shot out. Tr. 205. He noticed two sizes of bullet holes in the
vehicles – one larger and one smaller. Tr. 205. This indicated different size guns
had been used in the shooting; from the bullet hole sizes he believed a handgun and
possibly a rifle were used in the shooting. Tr. 205-207.
{¶11} Patrolman Kuhn returned to Webster Alley and informed the other
officers that they should also be looking for a rifle. Tr. 207. The officers attempted to
search the trunk of the car, but they were initially unable to do so because the trunk
latch did not work. Upon searching the vehicle again Patrolman Kuhn noticed a
paracord in the backseat. Tr. 170. When the paracord was pulled, the trunk popped
open. Tr. 170. In the trunk an AR-15 .233 style assault rifle was found. Tr. 167-168,
170-171. A spent casing was recovered from the firearm. Tr. 158.
{¶12} Appellant, Claiborne, and Hurst were separately taken to the
Steubenville Police Department where a gunshot residue test was performed.
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{¶13} Appellant was indicted for felonious assault in violation R.C.
2903.11(A)(2), a second-degree felony; an attendant firearm specification in violation
of R.C. 2941.145; and discharge of a firearm upon or over a public road in violation of
R.C. 2923.162(A)(3), (C)(2), a third-degree felony. 7/8/15 Indictment.
{¶14} The case proceeded through discovery and was tried to a jury. At trial,
in addition to the above information being provided, testimony from Club 106’s owner
and Jeff Jones, the security guard, established Appellant was not permitted in Club
106, and when he arrived he was escorted out. Tr. 260-261, 289. Video surveillance
of the outside of the club was played for the jury. Tr. 264-270. The video depicted
Appellant’s ejection and showed shots being fired.
{¶15} Experts from BCI also testified. The expert on gunshot residue testified
particles highly indicative of gunshot primer residue were identified on one of the
samples from Hurst, one of the samples from Claiborne, and one of the samples from
Appellant. Tr. 317-319. “Particles highly indicative of gunshot primer residue” on a
person’s hands means the individual either discharged a firearm, was in the vicinity of
a firearm when it was discharged, or handled an item with gunshot primer residue on
it. Tr. 319. A positive gunshot residue result does not eliminate the possibility of
other non-firearm sources of exposure. Tr. 319. The expert also testified gunshot
residue cannot identify the shooter. Tr. 322.
{¶16} An expert from the firearms department avowed both the handgun and
the rifle were operable. Tr. 333-334. Testing was also performed on the casing
found at the scene. The expert determined the two .233 casings found were fired
from the rifle. Tr. 338-340. He also determined two of the .380 casings found on
Webster Alley were fired from the .380 Bersa handgun. Tr. 340-341.
{¶17} A DNA expert also testified. Swabs were taken from the .380 Bersa
handgun and the rifle; two swabs were taken from each gun, one from the trigger and
one from the handled areas and barrel. Tr. 355-356. Samples were also taken from
the .380 caliber magazine. Tr. 356-357. The samples from the rifle were a complex
mixture and not suitable for comparison. Tr. 363. The result was the same for the
sample from the trigger of the handgun. Tr. 363. As to the sample from the handle
area and barrel of the handgun, although this sample was a mixture, it was suitable
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for comparison. Testing indicated Appellant was included as a major contributor of
that sample. Tr. 364-365. The expert concluded the mixture would only match one
in every 29,220,000,000 unrelated individuals. Tr. 365. The expert also testified
Hurst and Claiborne were excluded as major contributors of the sample from the
handgun’s handle area and barrel. Tr. 365. As to the .380 caliber magazine, the
data was not sufficient for comparison. Tr. 365.
{¶18} Lastly, a fingerprint expert testified; this expert was the defense’s only
witness. She indicated latent prints were lifted from the box of .380 ammunition
found in the glove box, but the print did not contain sufficient ridge detail for
comparison. Tr. 382. She further testified no one requested a fingerprint analysis for
the firearms; no one asked for her to attempt to lift prints from the firearms, casings,
or live rounds. Tr. 383. However, she also admitted it can be difficult to get
fingerprint lifts from firearms. Tr. 383.
{¶19} The jury found Appellant guilty of the charges. 9/30/15 Jury Verdicts.
Appellant was sentenced to an aggregate term of eight years. He received five years
for felonious assault, three years for the firearm specification, and thirty months for
the discharge of a firearm over a public road. 11/20/15 J.E.; 10/27/15 J.E.
{¶20} Appellant did not timely appeal the conviction and sentence. 1/25/16
NOA. However, he did file a motion for leave to file a delayed appeal, which was
granted. 1/25/16 Motion; 2/12/16 J.E.
Introduction to the First Three Assignments of Error
{¶21} For the first three assignments of error, Appellant asserts claims of
ineffective assistance of counsel. To prove an allegation of ineffective assistance of
counsel, the two-prong Strickland test must be met. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052 (1984). First, it must be established that counsel's
performance fell below an objective standard of reasonable representation. Id. at
687; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of
the syllabus. Second, it must be shown that defendant was prejudiced by counsel's
deficient performance. Strickland at 687. Or, in other words, it must be shown that
but for counsel's errors the result of the trial would have been different. Bradley, at
paragraph three of the syllabus. If this court finds either prong fails there is no need
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to analyze the remaining prong, because in order for ineffective assistance of counsel
to be shown both prongs must be established by the appellant. State v. Herring, 7th
Dist. No. 06JE8, 2007–Ohio–3174, ¶ 43.
{¶22} Appellant bears the burden of proof on the issue of counsel's
effectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id. Furthermore, “a defendant is
not deprived of effective assistance of counsel when counsel chooses, for strategical
reasons, not to pursue every possible trial tactic.” State v. Brown, 38 Ohio St.3d 305,
319, 528 N.E.2d 523 (1988).
{¶23} With those standards in mind, we turn to the arguments presented.
First Assignment of Error
“Appellant’s trial counsel failed to object to the admission of evidence unfairly
prejudicial to defendant, specifically an AR-15 style assault rifle, resulting in
ineffective assistance of counsel.”
{¶24} At trial, the .233 caliber AR-15 style assault rifle was admitted into
evidence and shown to the jury. Tr. 254, 334. Expert reports were admitted about
whether this weapon was operable, whether the casings found at the scene were
shot from this weapon, and whether there was any DNA evidence found on this
weapon. Tr. 343, 367. The assault rifle was discussed during trial. Likewise, during
voir dire questions were asked about assault rifles and AR-15 style assault rifles. Tr.
41, 42, 68, 70-72. Counsel did not object to the questions or the admission of
evidence. In fact, counsel asked questions about the assault rifle during trial and voir
dire.
{¶25} Appellant asserts trial counsel failed to either file a motion in limine or
object to the admission of evidence related to the .233 caliber AR-15 style assault
rifle. The charges against Appellant were not related to this rifle, and the evidence
submitted at trial did not link Appellant to this rifle. The state’s theory of the crime
was that this was an ambush shooting; Appellant shot at the club with the .380 Bersa,
one of his codefendants used the assault rifle, and the other codefendant was the
getaway driver. Appellant asserts the discussion of the assault rifle prejudiced him.
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{¶26} The state argues the failure to object does not amount to ineffective
assistance of counsel. It asserts it was permitted to explain the evidence found at the
scene, which included the assault rifle. Furthermore, the state claims the
conversations about the assault rifle were minimal, and the evidence showed
Appellant did not fire the assault rifle. The state also argues the failure to object to
the admission of evidence regarding the assault rifle may have been trial strategy. It
was Appellant’s trial theory that there was more than one shooter on that night, and
he was not one of them. He was attempting to blame the shots fired on another
individual. Since the assault rifle could not be linked to Appellant and the video
showed the presence of another figure, Appellant argued he was not the shooter.
{¶27} The state’s arguments are persuasive. Counsel’s performance was not
deficient for failing to object to questions about AR-15 style assault rifles at voir dire,
or for failing to object to questions or the admission of evidence concerning the .233
caliber AR-15 style assault rifle found at the scene. The failure to object is not, by
itself, enough to sustain a claim for ineffective assistance of counsel. State v.
Conway, 108 Ohio St.3d 214, 2006–Ohio–791, 842 N.E.2d 996, ¶ 168. Objecting is
a tactical decision that ordinarily does not give rise to a claim for ineffective
assistance of counsel. State v. Johnson, 112 Ohio St.3d 210, 2006–Ohio–6404, 858
N.E.2d 1144, ¶ 139–140. An appellate court will not second-guess tactical decisions.
State v. Brown, 7th Dist. No. 12-MA-118, 2015-Ohio-793, ¶ 8.
{¶28} In looking at the voir dire as a whole, there were minimal questions or
references to AR-15 style assault rifles. The transcript of the voir dire is 91 pages in
length. Tr. 8-99. An AR-15 style assault rifle is mentioned on only 6 of those pages.
{¶29} A prospective juror was the first person to mention an AR-15 style
assault rifle. Tr. 41. The state was asking prospective jurors if any of them own guns
or have knowledge of firearms. That question is permissible given that this case
involves a shooting. In response to the question, one prospective juror stated he
owned an AR-15, two pistols, two shotguns, and a few rifles. Tr. 41. It was at that
point the state asked about the AR-15. Tr. 41. After a short dialog, the state asked if
the juror would ever see a need for that type of gun to be inside the city limits or near
a bar. Tr. 41. The juror responded he did not believe a pistol or any firearm should
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be in a bar “for any reason whatsoever.” Tr. 42. The state then asked, “To say
nothing of an assault rifle?” Tr. 42. To which the prospective juror responded,
“Exactly.” Tr. 42. The conversation concerning assault rifles ended at that point.
This prospective juror was excused from service; the state elected to use its first
preemptory challenge to remove him from the jury. Tr. 80.
{¶30} The conversation described above was one of the two instances during
voir dire where feelings about an AR-15 style assault rifle were discussed. The
second conversation started with defense counsel stating that the case involved a
Bersa Thunder .380 and an AR-15 assault rifle. Defense counsel asked if anyone
had a problem with either of those guns. Tr. 68. One prospective juror asked why a
“big gun like that” was in the car. Tr. 69. The prospective juror indicated it bothered
her that a gun like that was in the car because it is an assault rifle. Tr. 69, 71. This
prospective juror was also dismissed; defense counsel elected to use its first
peremptory challenge to remove her from the jury. Tr. 87.
{¶31} Although our review of the voir dire focuses on these two specific
conversations, when the transcript of the voir dire is examined in its entirety, it is clear
the focus of the voir dire was not on assault rifles. A review of the entire voir dire
reveals that these two conversations were minimal. The primary and proper focus of
the voir dire was to determine if the jurors would be fair and impartial.
{¶32} During trial, the focus was also not on the assault rifle, but rather the
facts of the case. It would have been difficult to lay out the case without referencing
the assault rifle. The officers found two different casings at the crime scene. The
size of the bullet holes at the crime scene were two different sizes, and the property
damage inflicted was at varying degrees depending on which size bullet hit the
property. Also, Appellant was a passenger in the car where the two guns were
found.
{¶33} It is acknowledged that the state’s theory was Appellant and his two
codefendants ambushed the club. One codefendant was the getaway driver, one
codefendant used the assault rifle, and Appellant used the .380 caliber Bersa
handgun. Despite the fact that the state was not claiming Appellant fired the assault
rifle, it was displayed for the jury. Tr. 334-335. There was also discussion about
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whether it was operable and whether Appellant’s DNA was found on it. There is a
potential for prejudice to result from the admission of an unrelated assault rifle. See
State v. Rogers, 8th Dist. No. 58557, 1991 WL 97395, (June 6, 1991) (evidence of
unrelated weapon admitted at trial was prejudicial). However, this weapon was
related to the crime and thus, was relevant. Furthermore, as the state points out, it
could have elected to contend Appellant aided and abetted his co-defendant in the
firing of the assault rifle.
{¶34} Additionally, it may have been trial strategy to allow the admission of
the AR-15 style assault rifle. Appellant’s theory at trial was there was more than one
shooter and he was not either of them. Since the assault rifle could not be linked to
Appellant through DNA or fingerprints, and the video surveillance allegedly showed
the presence of another figure, Appellant argued he was not the shooter. As stated
above, we will not second guess trial strategy.
{¶35} Consequently, for these reasons counsel's performance did not fall
below an objective standard of reasonable representation.
{¶36} However, even if it did, Appellant cannot meet the prejudice prong of
the Strickland test. He cannot show that but for counsel's errors the result of the trial
would have been different.
{¶37} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(2) and an attendant firearm specification. Under that section a person
commits felonious assault if he knowingly causes or attempts to cause physical harm
to another by means of a deadly weapon. He was also convicted of discharge of a
firearm over a public road in violation of R.C. 2923.162 (A)(3) and (C)(2). If a person
does discharge a firearm over a public road, and creates a substantial risk of physical
harm to any person or caused serious physical harm to property, the violation is a
third-degree felony. R.C. 2923.162(C)(2).
{¶38} The evidence at trial did not link Appellant to the assault rifle, but it did
link him to the .380 caliber Bersa handgun. The .380 caliber Bersa handgun was
found under the backseat of the car where Appellant was sitting. Tr. 170-171.
Appellant was included as a major contributor to the DNA found on the handle area
and barrel of that gun. Tr. 364. Casings found on Webster Alley were determined to
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have been shot from the .380 caliber Bersa. Gunshot residue was also found on
Appellant’s hands. Tr. 319. Furthermore, Jeff Jones testified Appellant shot at him,
and he told the officers at the scene Appellant shot at him. Tr. 292, 294, 297. Officer
Cline and Lieutenant Lemal confirmed that while they were at the scene investigating
the crime, Jeff Jones told them Appellant shot at him. Tr. 168, 187, 244.
{¶39} This evidence demonstrates felonious assault in violation of R.C.
2903.11(A)(2) and the attendant firearm specification. The evidence also establishes
discharge of a firearm over a public road creating a substantial risk of physical harm
to any person and caused serious physical harm to property. As will be discussed in
the fourth assignment of error, there was evidence the shots were fired over Sixth
Street, a public road. Tr. 242. Jeff Jones’ testimony established he was shot at, and
the officers testified windows in the vehicles in Club 106’s parking lot were shot out.
Tr. 169-170, 205, 292.
{¶40} Considering the evidence, Appellant was not prejudiced by the alleged
deficient performance. The result of the trial would not have been different given the
evidence.
{¶41} This assignment of error is meritless.
Second Assignment of Error
“Appellant’s trial counsel failed to object to inadmissible hearsay evidence,
resulting in ineffective assistance of counsel.”
{¶42} At trial, Patrolman Nate Cline testified Jeff Jones identified Appellant as
the shooter:
Q. The officer alerted you what he found; is that right?
A. Officer Bickerstaff alerted me that he found the magazine to a .380
in the front area and then I had a male who was working security walk
up and say the Defendant – he had said “That guy you just put in your
car, he just shot at me.”
Q. Okay. So, you learned that immediately when you were at the
scene.
***
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Q. All right. And when you’re there the security guard immediately
approaches you and identifies –
A. Right.
Q. – this particular Defendant.
A. He’s in walking distance from the Club 106, yes.
Q. As the individual who shot at him.
A. Right.
Tr. 168-169.
{¶43} Sergeant Lemal also testified that Jeff Jones identified Appellant as the
shooter:
Q. Okay. So, it’s so soon after the shooting that everybody has not
even yet been removed from the car at that point.
A. Right.
Q. All right. And did Mr. Jones share any information with you at that
point?
A. He did. He advised that the backseat passenger fired – he
observed him firing rounds at him.
Q. All right. And the backseat passenger in this case was who?
A. Mr. Johnson.
Tr. 244.
{¶44} Trial counsel did not object to the above testimony. Appellant asserts
the failure to object to impermissible hearsay resulted in ineffective assistance of
counsel. He claims this testimony was used to bolster Jeff Jones’ testimony
identifying Appellant as the shooter.
{¶45} At trial Jeff Jones testified:
Q. Okay. And what happened?
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A. Once he got outside the club he was on the ground trying to help
him up and the other guys I guess was – there was another guy out
there. He gets up and then he started running and he started shooting.
Q. And when you say he gets up are you referring to D’Andre
Johnson?
A. Yes.
Q. Did you actually see him fire a weapon at you?
A. Yes.
Q. As you sit here today is there any doubt in your mind that the
person that you threw out of the club or the person that fired at you is
D’Andre Johnson? Is there any doubt at all in your mind that that’s who
was shooting at you?
A. That’s who was shooting at me.
Q. Did you actually see a firearm in his hand?
A. Yes, I did.
Q. Okay. And he was outside of the club at that point?
A. Yes.
***
Q. And did you tell the officers at that point who the person was that
shot you?
A. Yes, I did.
Tr. 292, 294.
{¶46} Although counsel did not object to the officers’ testimony, as explained
above the failure to object is not, by itself, enough to sustain a claim for ineffective
assistance of counsel. State v. Conway, 108 Ohio St.3d 214, 2006–Ohio–791, 842
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N.E.2d 996, ¶ 168. Objecting is a tactical decision. State v. Johnson, 112 Ohio St.3d
210, 2006–Ohio–6404, 858 N.E.2d 1144, ¶ 139–140.
{¶47} Given the facts and evidence in this case, Appellant cannot satisfy
either prong of the Strickland test for ineffective assistance of counsel.
{¶48} He cannot establish counsel’s performance fell below an objective
standard of reasonable representation because the testimony was admissible.
Evid.R. 801(D)(1)(c) indicates neither officers’ testimony constituted hearsay. That
rule provides:
(D) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at trial or hearing
and is subject to cross-examination concerning the statement, and the
statement is * * * (c) one of identification of a person soon after
perceiving the person, if the circumstances demonstrate the reliability of
the prior identification.
Evid.R. 801(D)(1)(c).
{¶49} This rule is used to allow a third party to testify about a statement,
made by a declarant, that identifies a person soon after perceiving him, assuming the
circumstances surrounding the identification can demonstrate it was reliable. State v.
Castillo, 3d Dist. No. 7-14-14, 2015-Ohio-2738, ¶ 21; State v. Young, 5th Dist. No.
14CA25, 2015-Ohio-2075, ¶ 41 (The informant was available and testified, subject to
cross examination; the out-of-court identification was reliable because the informant
was familiar with appellant and positively identified him in the photo array within
hours of the crime.).
{¶50} Here, the requirements of this rule are established. First, Jeff Jones,
the declarant, testified at trial and was subject to cross examination. Tr. 296-301;
State v. White, 2d Dist. No. 20324, 2005–Ohio–212, ¶ 42 (“[I]dentification testimony
is not admissible per Evid.R. 801(D)(1)(c) unless the person who made the out-of-
court identification testifies at trial and is subject to cross-examination.”). Second,
Jeff Jones identified Appellant soon after perceiving Appellant. Patrolman Cline and
Sergeant Lemal testified Jeff Jones identified Appellant immediately after the
shooting. Tr. 168-169, 244. The testimony established Patrolman Cline heard the
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shots fired, and he and Patrolman Bickerstaff stopped Appellant within the vicinity of
the shooting only minutes after the shooting. As Patrolman Cline was placing
Appellant in his cruiser, Jeff Jones informed Patrolman Cline and Sergeant Lemal
Appellant shot at him. Tr. 139, 166, 168-169, 244. The circumstances also
demonstrate reliability of the prior identification. The identification happened almost
immediately after the shooting. Furthermore, the testimony established Jeff Jones
knew of Appellant; he had to eject Appellant from the club because Appellant was not
permitted to be there, and the shooting occurred immediately following the ejection.
Tr. 287, 288-289, 292.
{¶51} However, even if Evid.R. 801(D)(1)(c) was inapplicable, Jeff Jones’
statements to the officers would qualify as admissible hearsay under the excited
utterance or present sense impression exceptions. A present sense impression is
defined as, “A statement describing or explaining an event or condition made while
the declarant was perceiving the event or condition, or immediately thereafter unless
circumstances indicate lack of trustworthiness.” Evid.R. 803(1). An excited utterance
is defined as “A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.”
Evid.R. 803(2). For a statement to be admissible as an excited utterance, four
prerequisites must be satisfied: (1) the occurrence of an event startling enough to
produce a nervous excitement in the declarant; (2) a statement made while still under
the stress of excitement caused by the event; (3) a statement related to the startling
event; and (4) the declarant's personal observation of the startling event. State v.
Given, 7th Dist. No. 15 MA 0108, 2016-Ohio-4746, ¶ 27. The identifying statement to
the officers constitutes an excited utterance or a present sense impression. The
statement related to Jeff Jones’ personal observation of getting shot at, and the
statement was made within minutes of the shooting. His identification statements
uttered in close proximity to the event are an indication of trustworthiness. Given at ¶
29, citing State v. Crowley, 2d Dist. Clark No.2009 CA 65, 2009–Ohio–6689.
{¶52} Consequently, for the above stated reasons, there was no basis to
object to the testimony.
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{¶53} The prejudice prong of Strickland also fails. Appellant cannot
demonstrate he was prejudiced by any deficient performance to object to the alleged
hearsay testimony. Jeff Jones and the officers’ recitation of Jeff Jones identification
was not the only evidence of identity. Appellant was the only backseat passenger in
the vehicle. Tr. 171. Under the backseat where he was sitting a .380 Bersa handgun
was found. Tr. 170. DNA testing on that handgun indicated he was a major
contributor to the DNA found on the handle and barrel. Tr. 364. In fact, that DNA
profile would only be expected to be found 1 in 29,220,000,000 unrelated individuals.
Tr. 365. Appellant tested positive for having particles highly indicative of gunshot
primer residue on his hands. Tr. 319. The .380 casings found at the scene were
also examined and it was concluded to a reasonable degree of scientific certainty
that those casings had been shot by the .380 Bersa handgun found under the
backseat of the vehicle. Tr.338-340. This evidence was sufficient to establish
identity. Consequently, it cannot be concluded Appellant was prejudiced by any
alleged deficient performance to object to the alleged hearsay testimony.
{¶54} This assignment of error is without merit.
Third Assignment of Error
“Appellant’s trial counsel made bizzarre [sic] and unsubstantiated statements,
which together amounted to ineffective assistance of counsel.”
{¶55} Appellant claims statements made by trial counsel starting in the
opening statement and permeating through trial resulted in ineffective assistance of
counsel.
{¶56} As to opening statements, there are three statements Appellant argues
contributed to counsel’s ineffective assistance. The first is counsel’s statement that
the evidence would show Jeff Jones was shooting at Appellant. This is a
mischaracterization of what trial counsel stated. Counsel did not in opening
statements indicate Jeff Jones was shooting at Appellant. Rather, counsel stated a
security guard was shooting at Appellant. Tr. 131. Counsel acknowledged there was
more than one security guard. The testimony confirmed there were two security
guards. Tr. 283. Jeff Jones testified that after he removed Appellant from the club
someone came out behind him, who he could not identify, and began shooting. Tr.
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295. Furthermore, the video surveillance of the club was played for the jury and it
appears to show someone with a gun. Tr. 280.
{¶57} The second statement is Appellant was so scared for his life he was
“outrunning the bullets.” Tr. 131. That statement is a figure of speech, and the
common ordinary person understands what is meant by the statement. The
statement is not taken to be literal by a reasonable person. Thus, such a statement
does not amount to deficient performance.
{¶58} The third alleged statement is DNA evidence from all three individuals
would be found on the gun. Similar to the first statement, this is a
mischaracterization of what trial counsel said. Trial counsel was attempting to
explain why the gunshot residue test for Appellant came back positive, and why his
DNA was found on the barrel and not on the trigger. Tr. 134. She indicated
Claiborne lived out of his car and kept his gun under the backseat. Appellant was
allegedly helping him clean out the backseat and took the gun out by the barrel.
Since Claiborne had shot the gun earlier that day, gunshot residue was transferred to
Appellant’s hands. Tr. 134. Admittedly, there was no evidence at trial to confirm this
version of events. However, whether Appellant was going to testify on his own behalf
might not have been decided at that point. Had Appellant testified he may have
confirmed this version.
{¶59} Appellant next asserts trial counsel made irrelevant inquires during
cross-examination and misstated witnesses’ answers. Appellant hones in on a
discussion with Patrolman Cline on where the .380 Bersa was found. It was found
under the backseat of the car. Tr. 188. Counsel asked if it took two officers to lift the
seat. Tr. 188. The officer responded they each lifted one side. Tr.188. For
clarification she asked:
Q. Okay. So, it did take two of you to lift the seat up?
A. I didn’t say that. I said I lifted my side and I think he lifted his
separately. I mean, the seat was not picked up and completely
removed to my knowledge.
Q. So, if someone was sitting on that seat they couldn’t lift it up.
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A. No, you could. I said you could lift it – I lifted my side with the other
side being down. He lifted his side with my side being down.
Tr. 188-189.
{¶60} The officer’s answers about lifting the seat were not clear, therefore,
counsel was attempting to clarify what was needed to lift the seat. Also, given the
questions it appears the defense was asserting Appellant could not have lifted the
seat while he was sitting on it. While the questioning was not effective to get the
response counsel wanted, it may have been effective in getting the jurors to think
about whether it was possible. During closing, trial counsel stated Appellant could
not have lifted the seat while he was sitting on it to place the gun under it because it
took two policemen to lift the seat. Tr. 409.
{¶61} Appellant also points to the prosecutor’s statements at the beginning of
the state’s closing argument to demonstrate defense counsel made bizarre or
unsubstantiated statements during trial. The first statement the prosecutor made
was, “There are times when I wonder at the end of a trial whether Defense Counsel
and I have been in the same room to hear the same testimony.” Tr. 411. This
statement was directed at all defense counsel, not just this defense counsel.
Furthermore, this statement highlights what goes on at trial. Each side looks at the
evidence differently and wants the jury to look at the evidence in a way that is most
favorable to their respective position. For instance with the seat of the car defense,
counsel was of the opinion that Appellant could not be sitting on the backseat and still
have the ability to lift it to put the gun under it. The state, on the other hand, thought
the officer was believable that one could lift it while sitting on it. Another example is
the results from the DNA testing. Defense counsel on cross examination asked the
DNA expert if her calculation of the odds of the DNA found on the barrel of the
handgun was similar to the flip of a coin:
Q. Okay. Now, I know we’re getting a little bit technical here but I kind
of want – I kind of want to break it down where we can understand it a
little bit better. Now, if we have 15, when you do your calculation it’s
like doing a coin toss; right? One – if you flip a coin for heads or tails,
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you have 1 out of 2 chances. If you flip it again, its 1 out of 4. If you flip
it again, it’s 1 out of 8.
A. 1 out of 16.
Q. 1 out of 16, right. 2, 4, 16.
A. Uh-huh.
Q. Same thing with your numbers that you do with the reporting that
you do here; correct?
A. It’s a similar theory but the odds – it’s not 1 in 2 because it’s –
there’s multiple numbers that you can get. It’s not just heads or tails
and so but it’s similar. It’s a good analogy for it but the frequencies for
the pieces of DNA are different and it’s – it’s additive. It’s multiplied,
kind of like what you’re saying.
Q. Okay. So, it’s like chance.
***
A. Well, it’s – it’s – it’s an estimate based on the frequencies that are
known, so that the profile as a whole is the estimate at each location
multiplied across the board for the profile.
Tr. 371-372.
During closing, trial counsel made the following argument:
He’s not guilty. 1 in 29 billion, 200 million (29,200,000,000). The expert
said the use of a coin flip was a good analogy. Chance, odds, estimate,
that’s reasonable doubt and I ask you to vote just that way, not guilty on
both counts and the specification. Thank you.
Tr. 411.
{¶62} The state then rebutted and argued the expert did not compare it to a
flip of the coin; the odds were 1 in 29 billion. Tr. 412.
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{¶63} This demonstrates each side viewing the evidence differently and trying
to convey it in a way that is most favorable to their respective positions.
{¶64} Although counsel’s arguments concerning the seat of the car and the
results of the DNA testing may not have been very compelling, overall it cannot be
found trial counsel’s arguments and statements resulted in ineffective assistance of
counsel. Defense counsel filed a number of pre-trial motions. During trial, she cross-
examined officers on the lack of placement placards at the scene and the lack of
testing done on the blood found on the trunk of the car. Tr. 152-153, 189. She
cross-examined the gunshot residue expert about transference of gunshot residue
prior to testing that may have caused Appellant to test positive for gunshot residue.
She also had the expert admit a positive gunshot residue test cannot identify the
shooter. Tr. 322. Defense counsel also brought to light that the state did not request
DNA testing on the bullets. As to the DNA expert, defense counsel’s cross-
examination resulted in the DNA expert testifying that the 1 in 29,200,000,000 figure
was to unrelated individuals. Tr. 368. The expert also admitted the DNA results do
not necessarily mean Appellant fired the gun. Tr. 373. Defense counsel called a
fingerprint expert from BCI. That expert testified the state did not request fingerprint
analysis for guns, magazines, or shell casings. Tr. 382-383. As to the prints that
were lifted from other objects, the ridge detail was not sufficient for comparison. Tr.
382. Defendant’s Exhibit K. Furthermore, of the prints that were lifted and could be
compared, they did not match Appellant’s fingerprints. Tr. 386; Defendant’s Exhibit
K.
{¶65} Consequently, the actions taken by counsel show competent
representation; Appellant has failed to overcome the presumption. However, even if
Appellant could establish counsel’s representation fell below an objective standard of
reasonableness, given the evidence submitted Appellant cannot show prejudice. As
stated above, Jeff Jones identified Appellant as the shooter. Tr. 294. Appellant was
the only backseat passenger in the vehicle. Tr. 171. Under the backseat where he
was sitting a .380 Bersa handgun was found. Tr. 170. DNA testing on that handgun
indicated he was major contributor to the DNA found on the handle and barrel. Tr.
364. In fact, that DNA profile would only be expected to be found 1 in
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29,220,000,000 unrelated individuals. Tr. 365. Appellant tested positive for having
particles highly indicative of gunshot primer residue on his hands. Tr. 319. The .380
casings found at the scene were also examined, and it was concluded to a
reasonable degree of scientific certainty that those casings had been shot by the .380
Bersa handgun found under the backseat of the vehicle. Tr.338-340. This evidence
supports the conviction for felonious assault and the attendant firearm specification.
{¶66} For those reasons, this assignment of error is meritless.
Fourth Assignment of Error
“Appellant’s conviction on count three of the indictment was against the
manifest weight of the evidence.”
{¶67} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine 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. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “Weight 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.’” Id. In making its
determination, a reviewing court is not required to view the evidence in a light most
favorable to the prosecution but may consider and weigh all of the evidence
produced at trial. Id. at 390.
{¶68} Granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of fact
who sits in the best position to judge the weight of the evidence and the witnesses'
credibility by observing their gestures, voice inflections, and demeanor. State v. Hill,
75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d
230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
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{¶69} Appellant asserts his conviction for discharging a weapon over a public
road in violation of R.C. 2923.162 is against the manifest weight of the evidence.
That statute in pertinent part states:
(A) No person shall do any of the following:
***
(3) Discharge a firearm upon or over a public road or highway.
***
(C) Whoever violates this section is guilty of discharge of a firearm on
or near prohibited premises. * * * A violation of division (A)(3) of this
section shall be punished as follows:
***
(2) Except as otherwise provided in division (C)(3) or (4) of this section,
if the violation created a substantial risk of physical harm to any person
or caused serious physical harm to property, a violation of division
(A)(3) of this section is a felony of the third degree.
R.C. 2923.162(A)(3)(C)(2).
{¶70} Patrolman Bickerstaff testified he found .380 caliber casings on
Webster Alley. Tr. 144-145. Appellant was the only backseat passenger of the car
that was stopped immediately following the shooting. Tr. 171. A .380 caliber Bersa
handgun was found under the backseat of that car. Tr. 170, 172. That firearm was
submitted to BCI for testing. The firearms expert testified those casings were fired
from that firearm. Tr. 340-341. DNA testing was also performed on the .380 caliber
Bersa handgun. The results indicated Appellant was a major contributor to the DNA
found on the gun. Tr. 364. That DNA mixture would only be found in 1 in
29,220,000,000 unrelated individuals. Tr. 365. Jeff Jones also testified Appellant
shot at him. Tr. 292.
{¶71} Sergeant Lemal testified Sixth Street in Steubenville, Ohio, is a public
street. Tr. 240. Patrolman Kuhn testified he observed significant damage to vehicles
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in the parking lot for Club 106. Tr. 205-207. He explained the bullet paths and stated
the bullets were traveling west. Tr. 216. The following colloquy then occurred:
Q. Okay. And the van, if I understand your testimony, was closest to
that side entrance; correct?
A. It was, yes.
Q. Do you recall being asked could the shooter have been shooting
from this way and still hit these car windows?
A. Right. That’s – that was when I said no definitely.
Q. Okay. And why is that?
A. Well, the van and then you have the building, you have the can –
Q. Okay.
A. – and the van is much taller and the cars are behind it , so.
Q. All right. So, if our shooter had been coming – that had done all this
damage was coming from that side door and shot at the van, you
wouldn’t see the same kind of damage you saw if our shooter was
coming from south – from Webster Alley, from South Street and
shooting towards the club.
A. No, you would not.
Tr. 228.
{¶72} The testimony and evidence indicate Appellant was one of the
shooters. All the testimony taken together indicates the shots were fired over Sixth
Street, a public road. Admittedly, the testimony concerning whether shots were fired
over Sixth Street could have been clearer. For example, an officer could have
testified more concisely that given the bullet path the shots were fired over Sixth
Street. That said, there was a jury view of the scene. While the cold record in this
case might not clearly indicate where Webster Alley is in relation to Sixth Street and
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Club 106, and where the parking lot is located in relation to Sixth Street and Webster
Alley, the jury got to view the location. Therefore, when the officers were testifying
about the location of casings and parking lots, the jury could clearly picture the event
as laid out by the state. The jury was in the best position to determine whether the
shots were fired over Sixth Street, given the jury view of the scene.
{¶73} For those reasons, the jury did not clearly lose its way and the
conviction for discharge of a firearm over a public road is not against the manifest
weight of the evidence. This assignment of error is without merit.
Conclusion
{¶74} All four assignments of error lack merit. Appellant’s conviction and
sentence is hereby affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.