State v. Quiller

[Cite as State v. Quiller, 2016-Ohio-8163.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 15AP-934

v. : (C.P.C. No. 14CR-5190)

Carl M. Quiller, Jr., : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on December 15, 2016

On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.

Taylor, for appellee. Argued: Steven L. Taylor.

On brief: Wolfe Van Wey & Associates, LLC, and

Marcus M. Van Wey, for appellant. Argued: Marcus M.

Van Wey.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.

{¶ 1} Defendant-appellant, Carl M. Quiller, Jr., appeals from a judgment of the

Franklin County Court of Common Pleas sentencing him to a term of life incarceration,

with the possibility of parole after 31 years, pursuant to jury verdicts finding appellant

guilty on two counts of felonious assault, one count of attempted murder, two counts of

murder, and one count of tampering with evidence, and a guilty verdict following a bench

trial on two counts of having a weapon under disability. Because we conclude the trial

court did not err by denying appellant's motion to suppress statements he made to police

or by admitting testimony from a forensic scientist regarding firearms identification, and

that the jury verdicts were not against the manifest weight of the evidence, we affirm.

No. 15AP-934 2

I. Facts and Procedural History

{¶ 2} In the early morning hours of September 19, 2014, Gertrude Hall and Carlos

Aguilar were sleeping in a field near Lockbourne Road in Franklin County, Ohio, between

the point where Lockbourne Road intersects State Route 104 and the point where it

intersects Koebel Road. At approximately 4:30 a.m., Hall and Aguilar were awoken by a

gunshot. They saw a man holding a large flashlight, which obscured his face. The man

then fired multiple shots at Hall and Aguilar, striking both of them. Hall was wounded by

multiple shots, suffering injuries to the right side of her face and the area near her left

shoulder. Aguilar tried to shield Hall and was wounded in the right arm. After firing at

the couple, the shooter then walked away from them. Hall later testified that she did not

get a good look at the shooter, only seeing a glimpse of the side of his face. Aguilar

testified that he could make out the shooter's features.

{¶ 3} Aguilar helped Hall to Lockbourne Road and then went to call for help from

a nearby gas station and restaurant. While she waited for help and tried to flag down

passing cars, Hall saw a man riding a bicycle in and around some nearby bushes. Hall

later stated that the man disappeared when police and paramedics arrived. Hall told

police that the man on the bicycle asked whether she needed help and she responded that

help was on the way. Aguilar also testified that he saw a man circling on a bicycle near the

gas station and restaurant before police arrived.

{¶ 4} Officers from the Columbus Division of Police and paramedics from the

Columbus Fire Department were dispatched to the gas station and restaurant, where they

found Aguilar, who directed them to the area where Hall was located. Aguilar also helped

police officers identify the area where the shooting occurred. A crime scene search

detective collected two TulAmmo .40 caliber Smith and Wesson shell casings from the

scene.

{¶ 5} Early the following morning, on September 20, 2014, Columbus police

officers were dispatched to the scene of a shooting at 2910 Lockbourne Road, just south of

the intersection of Lockbourne and Watkins Roads. The victim, Thomas Henson, was

sitting in a pickup truck with his head on a pillow resting against the driver's side door.

Henson had suffered a gunshot wound to the head that entered behind his left ear and

exited through his right eye. Henson was bleeding severely and gasping for breath when

No. 15AP-934 3

police officers and paramedics arrived; he died after being transported to a nearby

hospital. When officers arrived, appellant was standing near the truck, holding the pillow

against Henson's wound with his elbow and talking with the emergency dispatcher on a

cell phone. Appellant's bicycle was located near the truck.

{¶ 6} Appellant told responding officers that he had been riding his bicycle past

the scene and approached Henson's truck because something appeared to be wrong.

Appellant told officers that when he saw that Henson had been shot, he rode his bicycle

home to obtain a working cell phone and then returned to the scene while calling 911.

Appellant also told one officer that he had been in the area on the prior morning and had

seen Hall after she had been shot. The officer later testified that appellant seemed to be

upset that police officers responding to the Hall/Aguilar shooting had not asked him

about that incident. Crime scene investigators later recovered a .40 caliber spent

projectile from the floorboard of Henson's truck and a TulAmmo .40 caliber Smith and

Wesson shell casing from the bed of the truck.

{¶ 7} Appellant was transported to Columbus police headquarters on

September 20, 2014, where he was interviewed by Detectives Jennifer Gribi and Brad

White. After gathering some background information, including appellant's date of birth

and address, detectives left the interrogation room for slightly over one hour. Upon

returning to the interrogation room, Detective Gribi read appellant his constitutional

rights and asked whether he understood those rights. Appellant responded that he did

and Detective Gribi then asked appellant what it meant to him. Appellant answered "uh,

if I choose to not talk, uh, I can have a lawyer present, but if I refuse, it's up to me."1

(State's Ex. 4 at 9:05:37 - 9:05:48, June 2, 2015 Suppression Hearing.) Detectives Gribi

and White then continued to question appellant. During the interview, portions of which

were later played for the jury at trial, appellant initially claimed that he was out on his

nightly bicycle ride when he saw Henson's truck. He stated he had previously seen

Henson sleeping in that area and had spoken to him briefly. Appellant stated he

1 We note that the transcript of the suppression hearing quoted appellant as responding: "If I choose to not

talk without a lawyer present, if I choose somebody." (June 2, 2015 Tr. at 131.) However, the transcript also

noted that the audio was difficult to hear and that the court reporter was not providing a verbatim

transcription. (See June 2, 2015 Tr. at 123.) At the suppression hearing, counsel for the state referred to

appellant as having said "I choose not to talk then I can have a lawyer present. If I refuse it's up to me."

(June 2, 2015 Tr. at 165.) Appellant's response was muffled but, based on our review of the video, we believe

that appellant responded as indicated in the text of this decision.

No. 15AP-934 4

approached the truck because he saw broken glass on the ground outside the driver's side

window, and the pillow and Henson's head were hanging out the driver's side window.

Appellant claimed he looked into the truck and saw that Henson was bleeding. Appellant

stated that his cell phone battery had died, so he rode his bicycle home to get a working

cell phone and then called 911 as he rode back to the scene, and held the pillow against

Henson's head while waiting for help to arrive.

{¶ 8} Appellant also told detectives he had seen Hall the prior morning as she sat

near Lockbourne Road when he was out riding his bicycle. He claimed that he asked Hall

whether she was okay and she responded that she had been shot in the mouth and asked

appellant to get help. Appellant claimed that he rode to the nearby gas station and

restaurant where he could see police officers, but by the time he arrived police and

paramedics were driving toward Hall. When asked whether he had recently fired a gun,

appellant claimed that within the past few weeks he had fired a friend's .40 caliber

handgun at a transmission fluid bottle placed into a tree as a target. Appellant told

detectives he did not own any guns, and stated that his father owned a couple of shotguns

and rifles, but no handguns.

{¶ 9} On September 20, 2014, while appellant was in police custody, Hall, who

was still in the hospital being treated for her wounds, was shown a photo lineup that

included a photograph of appellant. She identified an individual who was not appellant

from the lineup as the shooter. Hall later testified that her identification was based solely

on the individual's cornrow hairstyle, rather than his face. That same day, Aguilar, who

spoke very little English, was also shown the same photo lineup. Aguilar identified a

different individual than Hall had identified from the lineup, but did not identify

appellant as the shooter.

{¶ 10} While appellant was in police custody, a search warrant was obtained for

appellant's home, which was less than one mile from the Hall/Aguilar crime scene and a

half mile from the Henson crime scene. During the search of appellant's home, officers

found a Hi-Point Firearms model JCP .40 caliber semiautomatic handgun under a

mattress in the basement where appellant slept, which was later identified as appellant's

bed. The gun contained two live rounds of TulAmmo .40 caliber Smith and Wesson

ammunition, one located in the chamber and one located in the magazine. Mark Hardy, a

No. 15AP-934 5

Columbus police forensic scientist, later testified at trial that the two shell casings

recovered from the scene where Hall and Aguilar were shot on September 19, 2014 were

fired by the handgun recovered from appellant's home. He also testified that the spent

projectile and spent casing recovered from Henson's truck were also fired by the handgun

recovered from appellant's home. Another Columbus police forensic scientist testified at

trial that a partial DNA profile was identified on the handgun, which was consistent with

appellant's DNA profile. A partial DNA profile containing a mixture of two individuals

was identified on the magazine; appellant was the major contributor to that DNA mixture.

{¶ 11} When confronted by Detectives Gribi and White about the handgun found

under his mattress, appellant initially claimed that he did not put anything under the bed

but his tax returns. Appellant later told detectives that a friend, Kaishawn Johnson, had

come to appellant's home in the early morning hours of September 20, 2014 because they

planned to smoke together. Appellant stated he told Johnson to wait while he finished

watching a television show and that Johnson briefly left and then returned. Appellant

claimed that when Johnson returned he showed appellant a gun; appellant stated he

smelled the gun and could tell it had recently been fired. Appellant asserted that Johnson

told him, "I popped somebody," and then told appellant where this occurred. (State's Ex.

II2 at 39:25 - 39:29.) Appellant stated he took the gun from Johnson, ran into the house

and hid it under his mattress, and then rode his bicycle to the place Johnson told him the

shooting occurred because he did not believe Johnson. Appellant claimed he then rode

back home to get a cell phone to call police and that Johnson was gone by the time he

returned home. Appellant denied shooting Hall, Aguilar, or Henson. Appellant identified

a photograph of Johnson for detectives. Detective Gribi subsequently determined that

Johnson had been incarcerated in the Franklin County Jail at the time of the two shooting

incidents, having been in custody beginning on September 18, 2014. Detectives told

appellant this and informed him that he was being charged with murder. The police

officer who escorted appellant from the interview room to have his mugshot taken

testified at trial that appellant stated, "I don't know why I did it." (Tr. Vol. III at 495.) He

further testified that appellant then said, "I tried to clot it, clot the hole. You know, I don't

know why." (Tr. Vol. III at 495.)

No. 15AP-934 6

{¶ 12} Appellant was charged with two counts of felonious assault and two counts

of attempted murder with respect to Hall and Aguilar, two counts of murder with respect

to Henson, and one count of tampering with evidence, which were tried before a jury.

Appellant was also charged with two counts of having a weapon under disability; he

waived his right to a jury trial and those charges were tried by the court. The jury found

appellant guilty on all charges except the charge of attempted murder with respect to

Aguilar, and the trial court found appellant guilty on the two weapon under disability

charges. The trial court found the two murder charges merged for purposes of sentencing

and that the felonious assault and attempted murder charges with respect to Hall also

merged for purposes of sentencing. The court sentenced appellant to a total term of life

incarceration, with the possibility of parole after 31 years.

II. Assignments of Error

{¶ 13} Appellant appeals and assigns the following three assignments of error for

our review:

[I.] THE TRIAL COURT ERRED IN DETERMINING THAT

THE APPELLANT WAIVED HIS MIRANDA RIGHTS IN A

KNOWING, INTELLIGENT AND VOLUNTARY MANNER.

[II.] THE TRIAL COURT ERRED BY ALLOWING A POLICE

FIREARMS EXAMINER TO TESTIFY THAT THE GUN

AND SHELL CASINGS IN EVIDENCE WERE A MATCH TO

"REASONABLE DEGREE OF PRACTICAL SCIENTIFIC

CERTAINTY."

[III.] THE JURY'S VERDICTS WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

III. Discussion

{¶ 14} In his first assignment of error, appellant argues the trial court erred by

determining that he knowingly, intelligently, and voluntarily waived his right to remain

silent and his right to have an attorney present during questioning by police. Appellant

moved to suppress the statements he made to police, but the trial court denied the motion

to suppress. Redacted portions of the recorded police interview with appellant were

played for the jury at trial.

{¶ 15} "Appellate review of a motion to suppress presents a mixed question of law

and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. See also State v.

No. 15AP-934 7

Belton, __ Ohio St.3d __, 2016-Ohio-1581, ¶ 100, citing Burnside. In evaluating the

motion to suppress, the trial court acts as the finder of fact and, therefore, is in the best

position to resolve factual questions and evaluate the credibility of witnesses. Burnside at

¶ 8. Therefore, we must accept the trial court's findings of fact if they are supported by

competent, credible evidence. Id. "Accepting these facts as true, the appellate court must

then independently determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard." Id. See also State v. Johnson,

10th Dist. No. 13AP-637, 2014-Ohio-671, ¶ 6 ("We apply a de novo standard in

determining whether the trial court properly denied appellant's motion to suppress.").

{¶ 16} "A suspect in police custody 'must be warned prior to any questioning that

he has the right to remain silent, that anything he says can be used against him in a court

of law, that he has the right to the presence of an attorney, and that if he cannot afford an

attorney one will be appointed for him prior to any questioning if he so desires.' " State v.

Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, ¶ 6, quoting Miranda v. Arizona, 384 U.S.

436, 479 (1966). A suspect may waive these rights, but the waiver must be voluntary and

made with a full awareness of the nature of the right being abandoned and the

consequences of the decision to abandon it. Id. at ¶ 7. "If custodial interrogation

continues in the absence of an attorney after a police officer advises a suspect of his rights,

the government bears 'a heavy burden' to demonstrate by a preponderance of the

evidence that the suspect 'knowingly and intelligently waived his privilege against self-

incrimination and his right to retained or appointed counsel' before speaking to the

police." State v. Barker, __ Ohio St.3d __, 2016-Ohio-2708, ¶ 23, quoting Miranda at

475. "A court may infer from the totality of the circumstances that a defendant

voluntarily, knowingly, and intelligently waived his [Miranda] rights." State v. Valentine,

10th Dist. No. 14AP-893, 2016-Ohio-277, ¶ 11, citing State v. Clark, 38 Ohio St.3d 252,

261 (1988), and State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, ¶ 52. The totality

of the circumstances includes the accused's age, mentality, and prior criminal experience;

the length, intensity, and frequency of the interrogation; the existence of physical

deprivation or mistreatment; and the existence of inducement or threat. Id. at ¶ 11.

{¶ 17} Appellant argues that although he indicated he understood his rights, his

comments to Detective Gribi when she asked what the statement of rights meant

No. 15AP-934 8

indicated that he did not fully and appropriately understand those rights. The Supreme

Court of Ohio has held that "[w]here a suspect, after being fully apprised of his

constitutional rights under Miranda * * *, indicates an understanding of those rights, but

subsequently acts in such a way as to reasonably alert the interrogating officer that the

warnings given have been misapprehended, the officer must, before any further

questioning, insure that the suspect fully understands his constitutional privilege against

self-incrimination, as described in Miranda." State v. Jones, 37 Ohio St.2d 21 (1974),

syllabus.

{¶ 18} In Jones, the defendant was presented with a form explaining his rights

under Miranda and the interrogating detective read the form aloud to him. Id. at 23. The

detective later testified that the defendant indicated that he understood his rights, but

refused to sign the rights waiver until he had spoken with his attorney. Id. at 24. The

detective began interviewing the defendant, who participated willingly until the detective

began to take notes. The defendant objected to the taking of notes and refused to speak

further if anything was written down. When the detective put away the notepad and

continued the interrogation, the defendant continued to respond and, in the course of the

interrogation, made an incriminating statement he later sought to have suppressed as

involuntary. Id. On appeal, the defendant claimed that during the interrogation he

mistakenly believed that only written statements could later be used against him. Id. at

25. The court found that the defendant's refusal to sign a written waiver of his rights

before conferring with his attorney and his objection to the detective's taking of notes was

consistent with this alleged mistaken belief. Under these circumstances, the court found

that the state had not met the heavy burden of establishing that the defendant knowingly

and intelligently waived his Miranda rights, explaining that:

We do not require police officers to probe a suspect's motives

after his Miranda rights have been clearly explained, he

indicates an understanding of them, and then demonstrates a

willingness to speak. What we do require, however, is that

when a defendant subsequently acts in such a way as to

reasonably alert an interrogating officer that the warnings

given have been misapprehended, the officer must, before any

further questioning, insure that the defendant fully and

correctly understands his Fifth Amendment rights.

Id. at 26-27. See also State v. Parker, 44 Ohio St.2d 172, 174-78 (1975) (applying Jones).

No. 15AP-934 9

{¶ 19} This court rejected a defendant's argument that the interrogating police

officer should have questioned him further to ensure that he understood the rights he was

waiving in the Valentine decision. Valentine at ¶ 18-21. Valentine was interviewed by

police about possession of a gun. The interrogating officer advised Valentine of his

Miranda rights and asked whether he understood them or had any questions about the

rights. Valentine responded that he did not have any questions about the rights. Id. at

¶ 12. Valentine then indicated he wished to make a statement and told the interrogating

officer that he had recently been released from the Ohio Hospital for Psychiatry. He also

indicated he had been diagnosed as manic depressive and that he lost touch with reality at

times. Id. at ¶ 13. When the interrogating officer asked about his current mental state,

Valentine indicated he was not in the best mood. The officer ultimately asked whether

Valentine felt he was in a mental condition that he could answer questions honestly, and

he responded that he might answer "a little too honestly." Id. Valentine then told the

officer about an altercation with a woman from whom he sought to collect money, and

admitted that he had a gun in his coat pocket that day but did not have a license to carry a

concealed weapon. Id. Valentine refused to answer when asked whether the woman

owed him money for drug transactions. Id. He was ultimately convicted of carrying a

concealed weapon. Id. at ¶ 3.

{¶ 20} On appeal, Valentine cited Jones and argued that the interrogating officer

needed to ask additional questions to ensure that he understood his Miranda rights after

he disclosed his mental health issues. Id. at ¶ 18. This court rejected that argument,

finding that Jones was distinguishable. The court concluded that Valentine said nothing

that would have reasonably alerted the interrogating officer that he misunderstood his

rights. Id. at ¶ 20. The interrogating officer later testified that Valentine appeared

coherent and appeared to understand the question about whether he understood his

Miranda rights. The court held that the fact that Valentine told the officer about his

mental condition and a recent stay in a mental facility did not indicate that he

misunderstood his rights. Further, the court noted that Valentine was "able to

intelligently and coherently explain his situation to [the interrogating officer] and the

altercation that led to his arrest." Id. Valentine "also understood enough during the

interview to refuse to answer [the interrogating officer's] question regarding whether [he]

No. 15AP-934 10

was meeting the woman to collect money for a drug transaction." Id. The court

concluded that Valentine did not act in a manner that would have reasonably alerted the

interrogating officer that he misunderstood his Miranda rights, even though the officer

was aware of his mental condition. Id. Accordingly, the interrogating officer "was not

under any obligation pursuant to Jones to further question [Valentine] about his

understanding of the Miranda rights once he indicated he understood them." Id.

{¶ 21} In the present case, Detective Gribi began the interview with appellant by

obtaining background information, such as his date of birth and address. She and

Detective White then left the interrogation room for slightly longer than one hour while

obtaining other information about the investigation. When they returned to the

interrogation room, Detective Gribi confirmed that appellant spoke English, that he had

completed the 12th grade, and that he could read and write. Detective Gribi also asked

appellant whether he had any hearing problems, whether he wore glasses or contact

lenses, and whether he had consumed alcohol or drugs in the prior 24 hours; appellant

responded no to each of these questions. Detective Gribi asked appellant if he had ever

had his constitutional rights read to him before. Appellant responded that he had and

asked why his rights were being read to him. Detective Gribi provided appellant with a

written copy of his constitutional rights and read it to him. After reading the document,

Detective Gribi asked whether he understood it, and appellant responded "yeah." She

then asked appellant what it meant to him. Appellant answered "uh, if I choose to not

talk, uh, I can have a lawyer present, but if I refuse, it's up to me." (State's Ex. 4 at 9:05:37

- 9:05:48, June 2, 2015 Suppression Hearing.) Detective Gribi did not ask appellant to

sign the written acknowledgment of his constitutional rights. Detectives Gribi and White

then proceeded to interview appellant about the events of September 19th and 20th.

Detective Gribi testified at the suppression hearing that appellant never indicated he did

not want to talk to detectives or answer questions and he never requested an attorney.

Appellant generally appeared calm and cooperative throughout the interview and spoke

freely to detectives.

{¶ 22} Appellant argues that his response when asked what the constitutional

rights form meant demonstrated that he believed he could only have an attorney present

if he chose not to speak. Appellant claims that, based on the Supreme Court's holding in

No. 15AP-934 11

Jones, Detective Gribi had a duty to ask follow-up questions to ensure that appellant was

knowingly and intelligently waiving his rights and that, because Detective Gribi did not

ask those questions, his subsequent statements should have been suppressed due to lack

of a knowing and intelligent waiver of his constitutional rights. After reviewing the video

of the exchange between Detective Gribi and appellant, we reject appellant's argument. It

is not clear that appellant believed his second statement (i.e., "I can have a lawyer

present") was contingent on his first statement (i.e., "[i]f I choose to not talk"). Appellant

briefly paused between the two statements, suggesting that these were two distinct,

incomplete thoughts, rather than a single, connected concept. Moreover, appellant's third

statement (i.e., "but if I refuse, it's up to me") suggested that appellant understood it was

ultimately his decision whether to speak to police and whether to have an attorney

present. Appellant did not request an attorney and did not hesitate to participate in the

interview. Unlike the scenario in Jones, there also was no subsequent conduct during the

interview that would have reasonably alerted Detective Gribi that appellant

misunderstood his constitutional rights. Under these circumstances, we conclude the trial

court did not err by denying the motion to suppress based on its conclusion that appellant

knowingly, intelligently, and voluntarily waived his constitutional rights.

{¶ 23} Accordingly, we overrule appellant's first assignment of error.

{¶ 24} Appellant argues in his second assignment of error that the trial court erred

by allowing forensic scientist Mark Hardy to testify that he concluded to a reasonable

degree of scientific certainty that the spent projectile and three casings recovered from the

crime scenes were fired from the handgun recovered from under appellant's bed.

Appellant cites Hardy's testimony that his identification was based on a visual

microscopic examination of various characteristics, but that there was no numerical

standard for determining that two samples were a match. Based on this testimony,

appellant argues that firearms identification is a subjective process and that Hardy's

characterization gave the jury an incorrect impression of the reliability of this evidence.

{¶ 25} Appellant objected to Hardy's testimony at trial, and the trial court

overruled the objection. Hardy was admitted to testify as an expert in the field of firearms

operability and firearms examination and identification. "The admission of expert

testimony is within a trial court's discretion." State v. Williams, 74 Ohio St.3d 569, 576

No. 15AP-934 12

(1996). Therefore, we will not reverse a trial court's decision to admit expert testimony

absent an abuse of discretion. An abuse of discretion occurs when a court's ruling is

"unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983).

{¶ 26} Appellant acknowledges that this court previously upheld a trial court's

admission of similar firearms identification testimony in State v. Johnson, 10th Dist. No.

05AP-12, 2006-Ohio-209. As we explained in that decision, Evid.R. 702 provides that a

witness may testify as an expert when the testimony relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a misconception common

among lay persons, the witness is qualified as an expert by specialized knowledge, skill,

experience, training or education regarding the subject matter of the testimony, and the

testimony is based on reliable scientific, technical, or other specialized information. Id. at

¶ 12.

{¶ 27} Johnson further held:

To determine the reliability of expert scientific testimony, a

court must assess whether the reasoning or methodology

underlying the testimony is scientifically valid. To make that

assessment, several factors are to be considered: (1) whether

the theory or technique has been tested; (2) whether it has

been subjected to peer review; (3) whether there is a known or

potential rate of error; and (4) whether the methodology has

gained general acceptance.

(Internal citations omitted.) Id. at ¶ 13.

{¶ 28} In Johnson, Hardy also served as the state's expert witness regarding

firearms identification. He testified that he compared markings on spent casings

recovered from the victim's house to markings on a live round of ammunition recovered

from a vehicle in which the defendant had been a passenger. Id. at ¶ 8. He explained that

the characteristics a gun imparted on a bullet casing were the same regardless of whether

the gun was fired, and that the methodology of comparing marks on live rounds to spent

casings was the same type of testing used when comparing different spent casings. Id. at

¶ 15. He further testified that the tests were scientifically valid and commonly accepted in

the scientific community. Id. This court concluded that, given Hardy's explanation of this

methodology, the trial court did not abuse its discretion by admitting the testimony

No. 15AP-934 13

because Hardy's opinion was based on reliable, commonly accepted scientific principles.

Id.

{¶ 29} Citing State v. Langlois, 6th Dist. No. L-11-1313, 2013-Ohio-5177, from the

Sixth District Court of Appeals, appellant argues that in the decade since Johnson,

comparative ballistics evidence has received increased scrutiny. In Langlois, the

defendant pointed to federal court decisions limiting the scope of ballistics expert

testimony and reports from the National Research Council purporting to question the

reliability of firearms identification, tool mark, and ballistics analysis. Id. at ¶ 21.

Ultimately, although the Sixth District acknowledged the federal decisions, it concluded

that Ohio courts have generally held that "the methodology of comparatively analyzing

and testing bullets and shell cases recovered from crime scenes is reliable." Id. at ¶ 41.

Other than citing Langlois, and two federal court decisions that were cited in Langlois,

appellant has provided no authority or argument that would lead this court to reverse our

decision in Johnson, 2006-Ohio-209.

{¶ 30} Similar to Johnson, in the present case Hardy testified extensively regarding

his credentials and experience, and the methodology used in comparing the tool marks on

the spent projectile and shell casings recovered from the crime scenes and those on test

rounds fired from the handgun recovered from appellant's home. He testified that

numerous studies have validated this process of firearms identification. Although Hardy

conceded that there was no numerical standard for determining that different samples

matched, he explained that the process was based on examining multiple characteristics

that, when viewed together as a pattern, could identify a unique firearm. Based on this

testimony, we conclude the trial court did not abuse its discretion by overruling

appellant's objection and permitting Hardy to testify that his conclusions were reached to

a reasonable degree of scientific certainty.

{¶ 31} Accordingly, we overrule appellant's second assignment of error.

{¶ 32} Appellant argues in his third assignment of error that the jury's verdicts

were against the manifest weight of the evidence. Specifically, appellant asserts that there

was no substantial evidence to establish that he was the shooter in either incident.

Appellant notes that neither Hall nor Aguilar identified him as the shooter when viewing

the photo lineups, and that each identified a different individual. Appellant also argues

No. 15AP-934 14

that DNA was only collected from the outside surfaces of the handgun, and appears to

suggest that the presence of his DNA on the gun may have been due to contact with his

bed.

{¶ 33} "When presented with a challenge to the manifest weight of the evidence, an

appellate court may not merely substitute its view for that of the trier of fact, but must

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses and determine whether in resolving conflicts in the evidence, the

trier of fact clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered." State v. McCrary, 10th Dist. No.

10AP-881, 2011-Ohio-3161, ¶ 12, citing State v. Thompkins, 78 Ohio St.3d 380, 387

(1997). This authority " 'should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.' " Thompkins at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). In conducting our review of the

evidence, "we are guided by the presumption that the jury, or the trial court in a bench

trial, 'is best able to view the witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered

testimony.' " State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

{¶ 34} Appellant correctly notes that both Hall and Aguilar failed to identify him as

the shooter in the photo lineup and, in fact, each identified a different individual who was

not appellant. However, Hall later testified that her identification was solely based on the

individual's "cornrow" hairstyle. (Tr. Vol. I at 102.) At the time of the incidents, appellant

had a hairstyle that was characterized as cornrows, dreads, or twiggies/twisties.2

Moreover, both Hall and Aguilar testified that the shooter shined a bright flashlight in

their faces and that the shooting occurred during the early morning hours. The jury was

aware of the fact that both Hall and Aguilar selected different individuals, who were not

appellant, from the photo lineup, in weighing the state's evidence.

{¶ 35} Despite the incorrect identifications by Hall and Aguilar, we cannot

conclude that this is an exceptional case where the evidence weighs heavily against the

2 Detective White used the term "twiggy hair" in characterizing Hall's description of the shooter. (State's Ex.

II2 at 10:14.) Appellant referred to his hair as not being "twisties" or "twistys," but, rather, as "dreads."

(State's Ex. II2 at 10:31 - 10:34.)

No. 15AP-934 15

conviction. Appellant's own statements placed him in close proximity to the scenes of

both shootings. The handgun, which was recovered from under appellant's bed and

contained traces of his DNA, matched the shell casings recovered from the Hall/Aguilar

shooting scene and the spent projectile and shell casing recovered from the Henson

shooting scene. Additionally, appellant's alibi for how the gun came to be under his bed—

i.e., that Johnson brought it to appellant's home and that appellant hid the gun under the

bed for Johnson—was demonstrably false, because Johnson was in police custody on

September 20th (and at the time of the shooting on the prior morning). Under these

circumstances, we cannot find that the jury clearly lost its way in concluding that

appellant was the shooter and finding him guilty.

{¶ 36} Accordingly, we overrule appellant's third assignment of error.

IV. Conclusion

{¶ 37} For the foregoing reasons, we overrule appellant's three assignments of

error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

SADLER and BRUNNER, JJ., concur.