Opinion

State v. James

  • 2024 Ohio 1469
Court
Ohio Court of Appeals
Filed
Apr 18, 2024
Status
Published
On the bench
Ryan
Cited by
1 cases
Authority
More cited than 48.3%

The opinion

[Cite as State v. James, 2024-Ohio-1469.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112741

v. :

ANTHONY JAMES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: April 18, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-18-632753-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Carl J. Mazzone, and Maryann Zaky,

Assistant Prosecuting Attorneys, for appellee.

Joseph V. Pagano, for appellant.

MICHAEL JOHN RYAN, J.:

Defendant-appellant, Anthony James (“appellant”), appeals from his

judgment of conviction, which was rendered after a jury trial. After a thorough

review of the facts and pertinent law, we affirm the trial court’s judgment.

Procedural History

The charges and conviction arose from the June 2018 deadly shooting

of Bahati Jumah (“Jumah”), and the robbery of Muzamil Islow (“Muzamil”) and

Yusuf Abdi Osman (“Osman”).

In October 2018, appellant was indicted along with a codefendant,

Frederico Minor (“Minor”); Minor had been on postrelease control at the time of the

incident. Counts 1, 2, and 3 related to the shooting of Jumah and charged

aggravated murder, murder, and felonious assault, respectively. Counts 4 and 5

charged aggravated robbery of Muzamil and Osman, respectively. Counts 1 through

5 all contained one- and three-year firearm specifications. The final count of the

indictment, Count 6, related solely to codefendant Minor and charged him with

having weapons while under disability.

After negotiations with the state, codefendant Minor pled guilty to

Count 1, amended to involuntary manslaughter with a one-year firearm

specification and Counts 4 and 5, the two counts of aggravated robbery, amended to

delete the firearm specifications. The negotiated plea deal required Minor to testify

truthfully against appellant in exchange for the state recommending a six-year

sentence. Minor did testify against appellant, and the trial court followed the state’s

recommendation and sentenced Minor to a six-year prison term. Minor also faced

additional time for violating the terms of his postrelease control on another case due

to his conduct in this case.

Appellant’s jury trial began in April 2023. In the time between the

indictment and trial — i.e., from October 2018 to April 2023 — the case was

extensively pretried, in large part, because of the repeated withdrawal of counsel and

appointment of new counsel that occurred at appellant’s request. Appellant was

represented by at least five different attorneys, who, upon being assigned, needed

time to get familiarized with the case. Pretrial and trial dates were continually

continued, largely at the defense’s behest, because discovery and negotiations were

ongoing.

For a period of time, appellant waived his right to counsel and

proceeded pro se with stand-by counsel; during this time, as well as when he was

represented by counsel, appellant, pro se, filed a barrage of motions. For example,

appellant, pro se, raised alleged speedy trial violations a number of times. In one

instance, when appellant was properly proceeding pro se in February 2022 because

he had voluntarily waived his right to counsel, he filed a motion to dismiss based on

speedy trial. A hearing was held, it was determined that time was tolled at that time

because appellant had never responded to the state’s discovery request, and the

motion was denied.

Thereafter, in March 2022, appellant waived his speedy trial rights

from March 8, 2022, through September 30, 2022. Despite his waiver, on May 2,

2022, appellant filed a “motion to assert speedy trial rights.” None of his counsel

ever raised the issue of speedy trial.

The record further shows that, in late October 2021, appellant raised

the issue of his competency and was referred to the court psychiatric clinic for

evaluation. After evaluation, in early January 2022, appellant’s counsel and the

state stipulated to the psychiatric clinic’s report, which found appellant competent.

In addition to the constant change of counsel, beginning near the end

of March 2020, the proceeding was at a standstill because of court orders related to

the Covid-19 pandemic.1

When the case did proceed to trial in April 2023, the state presented

16 witnesses. At the close of the state’s case, appellant made a Crim.R. 29 motion

for judgment of acquittal, which the trial court denied. The defense rested without

presenting any witnesses and renewed its Crim.R. 29 motion; the motion was again

denied. The defense requested an instruction on the lesser-included offense of

involuntary manslaughter, which the trial court denied. The state requested, and

was granted, a lesser included instruction on Count 1 (aggravated murder) of

murder. After its deliberations, the jury returned a guilty verdict on the lesser-

included offense of aggravated murder, that being murder, under Count 1, and guilty

verdicts on the remaining counts and specifications of the indictment.

1 We further note that in October 2021, the trial judge originally assigned to the

case unexpectedly passed away and a retired judge of the court was appointed by the Ohio

Supreme Court to take over the deceased judge’s docket; he presided through the end of

the year 2021. In 2022, the governor appointed an attorney to take over the docket; that

jurist ran for election to the seat in November 2022, but was defeated. The newly elected

judge took over the case in January 2023, and was the judge who presided at trial.

At sentencing, the trial court merged Counts 1, 2, and 3 (murder and

felonious assault of Jumah) and the state elected to sentence on Count 1, murder.

The court imposed a prison term of 18 years to life on Count 1, which included three

years on the firearm specification; six years on Count 4 (aggravated robbery), which

included three years on the firearm specification; and six years on Count 5

(aggravated robbery), which included three years on the firearm specification.

Counts 4 and 5 were ordered to be served concurrently to each other, but

consecutively to the sentence imposed under Count 1. Thus, appellant was

sentenced to a term of 24 years to life.

Facts as Elicited from Trial Testimony

The trial testimony established that appellant and his codefendant

Minor were known drug dealers on the west side of Cleveland. The two spent much

of the day together on the day of the incident at issue and much of the relevant events

occurred at a west-side apartment complex located on W. 112th Street, near Detroit

Avenue, in Cleveland.

Minor testified that appellant owned two semiautomatic pistols. Prior

to the day of the incident, one of appellant’s pistol was stolen from him — the theft

occurred at this apartment complex. Also, some time prior to the incident, Minor

had purchased a weapon from a maintenance man at the apartment complex. Minor

showed the weapon to appellant, who, coincidentally, recognized it as his stolen

weapon. Minor testified that after learning from appellant that it was the stolen gun,

he too believed it was appellant’s stolen weapon. Minor questioned the maintenance

man about from whom he had purchased the weapon. Minor learned a general

description of the sellers and that they “hung out” at the apartment complex.

On the day of the incident, Muzamil, one of the robbery victims, had

an encounter with appellant; he did not know who appellant was. The encounter

occurred at a convenience store across the street from the apartment complex.

Muzamil described appellant as “skinny” and wearing yellow pants. Appellant said

something to Muzamil to the effect of “whatever you got over there, we’re going to

need that.” Muzamil testified that he was confused and felt threatened.

Minor testified that that evening, he and appellant went to the

apartment complex around 9:15 p.m. They saw the robbery victims, Muzamil and

Osman, along with another individual identified only as “Rome” exit the apartment

complex. Believing that one or all of them had stolen appellant’s gun, appellant and

Minor approached the men. Minor testified that appellant had a gun and pointed it

the trio — Muzamil testified that, although he never saw a gun, appellant acted like

he had one. However, Osman testified that he saw appellant with a gun. Appellant

had a shirt covering his face.

Muzamil and Osman testified that the “chubby” man, who was later

identified as Minor, demanded whatever Muzamil had in his pocket and grabbed at

his pocket in an attempt to get the contents of it. Muzamil said he did not have

anything in his pocket and pushed Minor’s hand away; Minor responded by

punching both Muzamil and Osman. Muzamil, Osman, and Rome ran back into the

apartment complex.

Muzamil testified that he ran into the building to tell his friends about

what had just occurred and to warn them not to go outside. Approximately

30 minutes later, Muzamil and Osman left the apartment complex. Muzamil

testified that about an hour later, he received a call from his brother, Hassan Islow

(“Hassan”) saying that Jumah had been shot. Muzamil and Osman hurried back to

the apartment complex, where they found Jumah on the floor, bleeding and choking

on his own blood. The testimony revealed that the shooting occurred at

approximately 10:20 p.m.

Jumah had been with his brother on the evening in question — they

were in an apartment at the complex and were babysitting Hassan’s child. Hassan

and the child’s mother, Erin, lived in an adjacent building and were spending time

alone.

According to Jumah’s brother, Jumah stepped out of the apartment

for a reason unknown to him. Hassan’s testimony explained why Jumah left the

apartment — Jumah was coming to his apartment to use the WiFi. According to

Hassan, Jumah banged on the door, stumbled in, and fell to the floor. Hassan called

first responders while Erin administered CPR to Jumah. Jumah was transported to

a local hospital, where he passed away. An autopsy revealed that Jumah died of a

gunshot wound to the neck.

Minor testified as to the shooting. He explained that after the robbery

earlier in the evening, he and appellant went to his (Minor’s) house on W. 73rd

Street in Cleveland where they relaxed until they left to purchase liquor; Minor was

driving in his red Pontiac Grand Prix. They went to a couple of stores and were on

their way to a west-side location to meet a “customer.”

They drove by the apartment complex, and as they did, they saw a

group of people outside. Appellant told Minor to turn around because he believed

it was the same group from earlier in the day. Minor complied, they both got out of

the car, and walked up to the apartment complex. By the time they reached the door,

nobody was there. Although Minor did not live at the complex, he had a key from a

friend. Minor opened the door to the apartment building, and he and appellant went

in; Minor was first and appellant, who again had his face concealed, followed behind

him. There was a man in the hallway (Jumah) and Minor realized that he was not

one of the men he and appellant had previously encountered. The only people in the

hallway were appellant, Minor, and Jumah. Minor punched Jumah and then ran.

Minor testified that as he ran away, he heard two gunshots. According to Minor,

appellant had a gun, and he did not see Jumah with a gun.

Minor ran to his car and appellant soon joined him. Appellant’s

clothes were covered in blood. Appellant told Minor he “didn’t mean to do it.”

Minor then drove back to his house, whereupon he told appellant he was not

welcome to come in. Appellant told Minor that he needed to be dropped off on the

east side of Cleveland, but Minor told him he was not taking him anywhere else.

Minor’s girlfriend, who was at the house, gave appellant a ride.

The following day, Minor saw news reports of the shooting. He met

with appellant; he described appellant as appearing “shook up” and told Minor “you

know what it is.” Appellant also told Minor that if they went to jail, appellant “had

him.” According to Minor, he and appellant never talked about the shooting and in

the weeks thereafter they drifted apart.

There were reports of a red Pontiac leaving the scene of the shooting.

The police, on lookout for a red Pontiac, saw one and obtained the plate information;

the car was registered to Minor. The police then obtained a photograph of Minor

that was placed in a lineup and presented to Muzamil and Osman; both men

identified Minor as the person who attempted to rob them.

In August 2018, the police processed Minor’s Pontiac. A white cloth

with suspected blood was taken from the vehicle. The police did not swab for

fingerprints or DNA.

The police investigation also included reviewing security videos from

the apartment complex, a nearby beverage store, funeral home, and a city camera.

Some of the videos did not have accurate times and an FBI special agent who

reviewed them testified that he used the video from the city camera, which had the

correct times, as a benchmark for the timing on the other videos. The special agent

put together a “presentation video” of what he concluded was the significant

portions of the videos and that video was shown to the jury during the agent’s

testimony.

The special agent also testified as to his investigation of social media

and phone records relative to this case. His investigation showed that Minor had a

cell phone number associated with appellant in his phone. Search history on

appellant’s Facebook account revealed searches the day following the shooting for

“Cleveland 19 News,” “Channel 5 News,” “News Channel 5,” “Punkin Memorial

Page,” “Memorial Page,” “Cleveland Memorial Page,” and “Remembrance Page.”

Law enforcement testified that the memorial pages are generally about homicide

victims.

Over the defense’s objection, the state introduced recorded calls

Minor made from jail. The trial court allowed the state to use the calls so long as

they were not referred to as “jail calls” to the jury; rather, they were referred to as

“recorded conversations.” State’s exhibit No. 13 was a two-minute call from Minor

to his mother while he was in jail and prior to appellant’s arrest. There was a

discussion on the call about appellant saying he would post bond for Minor. Minor

testified he believed appellant was willing to post his bond because they were

friends. Later, after that call, appellant asked Minor if he had spoken with his

lawyers and what he was going to do.

The state also introduced letters, state’s exhibits Nos. 16 and 17,

appellant sent to Minor while the two were incarcerated. Minor read both letters

aloud in court and testified that based on the content of the letters, he knew

appellant sent them. In both letters appellant (1) questioned Minor saying that he

was “playing with his life”; (2) said he was being advised to plead to “25 to life”; (3)

said his lawyers were telling him that Minor was going to “write a statement against”

him; (4) said he was “loyalty over everything”; and (5) said he had seen the evidence

and it was not “sh**.” Minor testified that he believed appellant was concerned he

would testify against him, and appellant was warning him to keep quiet.

Other evidence was admitted over the defense’s objection. While

prepping one of its witnesses, appellant’s ex-girlfriend Roneisha (she was

appellant’s girlfriend at the time of the incident), the day before she was to testify,

the state learned of two Facebook messages and two jail calls involving Roneisha.

The state promptly sent them to defense counsel and disclosed it to the trial court

the next morning. The parties engaged in extensive discussion about the evidence.

The trial court ultimately found the evidence was relevant and allowed it in with

redactions.

The evidence was state’s exhibits Nos. 24 and 25, which were calls

appellant made to a friend, Mariah, instructing her to reach out to Roniesha because

he wanted Roniesha’s phone number. Appellant wanted to “check her [Roneisha’s]

temperature” because he saw her name “popped up” in discovery and he wanted to

know why.

Further, state’s exhibits Nos. 20A and B were the Facebook messages

that Mariah sent to Roniesha the same day as the above-mentioned calls.

Exhibit No. 20A was a message Mariah sent to Roniesha stating that “Anthony” was

looking for her. The message further stated, “Anthony James * * * wants to know

what’s going on with why they talking to [you] about his case.” Roniesha told Mariah

that there is no reason for them to talk. Mariah messaged back saying that appellant

said “f*** all that what’s your number.”

The state also presented evidence obtained from appellant’s Google

account that tracked his cellular device on the day of the shooting. An FBI special

agent testified that appellant’s cellular information was unavailable, which was

possible for a variety of reasons, including that his cellular service was turned off or

using an application (“app”). Another FBI special agent testified that he learned

through his investigation that appellant used various voiceover IP apps and that

appellant’s phone was not in service as of midnight on the night of the shooting.

Minor testified that he sometimes communicated with appellant via apps such as

Facebook or TextNow. Law enforcement testified that Google uses GPS, WiFi, and

cell signals to estimate a device’s location. They were able to compare appellant’s

Google account device information to Minor’s cellular and Google account

information for the evening in question.

A special agent explained that when a device communicates with a

network, it reaches a cell tower but not necessarily the closest cell tower so the device

can be tracked to the general area of that tower. The agent testified that although

the information is not exact, it is nonetheless accurate and reliable. After analyzing

both Minor and appellant’s accounts and mapping out the locations, the special

agent determined the devices were together throughout the evening. Specifically, at

10:20:49 p.m., appellant’s device was on Detroit Road. At 10:21 p.m., Minor’s device

was on Detroit Road in the West 80’s area. Between 10:26 p.m. and 10:29 p.m.,

Minor’s device was recorded at the apartment complex. The agent testified that to

a reasonable degree of technological certainty the two devices were in the same

location.

The agent testified that after 11:00 p.m., there was no location

information for appellant’s device until approximately 9:18 a.m. the next morning.

Likewise, there was no overnight data information for Minor’s device from late on

the night of the shooting until 8:48 a.m. the next morning. The next set of location

data for appellant’s device came the next morning from a residence in the East

Cleveland area.

Appellant was arrested with an iPhone that was retained by law

enforcement. However, nothing was found on the phone that was directly or

indirectly related to this case. A law enforcement official testified that based on his

analysis of all the cell phone and social media records obtained, he concluded that

appellant was not using that iPhone at the time of the incident. Or, if he was, he was

also using other devices. It was determined that appellant was using a Samsung

Android device to post on his account at the relevant time.

Roneisha, appellant’s girlfriend at the time of the incident, testified

that appellant messaged her via Instagram on the day of the shooting. He first told

her he was hanging out on West Boulevard playing a game. They messaged again at

5:57 p.m. and then not again until 10:58 p.m. when appellant messaged, “I really

need you.” Roneisha asked “why,” to which appellant responded, “whist got into

sum.” Roneisha testified that she took his response to mean that appellant had just

gotten into something. Roneisha pressed appellant about what he is trying to tell

her, and he responded, “scant say” and that he could not call her. At 11:22 p.m.,

appellant told Roneisha he was on W. 73rd Street and asked to come stay with her.

Their message exchange ends soon after.

Assignments of Error

I. The trial court erred by admitting testimony and exhibits over

appellant’s objection in violation of Crim.R. 16 and Evid.R. 401,

402 and 403 that deprived appellant of a fair trial and due

process.

II. The trial court erred when it denied appellant’s motion for

acquittal under Crim.R. 29 because the state failed to present

sufficient evidence to establish beyond a reasonable doubt the

elements necessary to support the convictions.

III. Appellant’s convictions are against the manifest weight of the

evidence.

IV. Appellant’s constitutional rights were violated when the charges

were not dismissed for want of speedy trial.

V. Appellant was deprived of effective assistance of counsel in

violation of the Sixth and Fourteenth Amendments to the United

States Constitution and Art. I. § 10 to the Ohio Constitution.

VI. The court erred by denying the defense request for a jury

instruction on involuntary manslaughter.

VII. Appellant’s sentence is contrary to law because the record does

not support the imposition of consecutive sentences.

Law and Analysis

Evidentiary Admissions Not an Abuse of Discretion

In his first assignment of error, appellant contends that, over his

objection, the trial court improperly allowed certain evidence in violation of

Crim.R. 16 and Evid.R. 401, 402, and 403.

A trial court has broad discretion regarding the admission of evidence,

and a “reviewing court should not disturb evidentiary decisions in the absence of an

abuse of discretion.” State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781

N.E.2d 88, ¶ 43, citing State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904 (2001). The

issue then is whether the trial court’s admission of the contested evidence was

unreasonable, arbitrary, or unconscionable. Noling at id.

Appellant’s Crim.R. 16 challenge vis-à-vis admitted evidence relates

to Roneisha’s testimony that the state learned of the day before she was to testify.

Specifically, appellant challenges the admission of exhibit Nos. 20A and 20B that

were screenshots of Facebook messages between Roniesha and Mariah, as well as

exhibit Nos. 24 and 25, which were recorded conversations appellant made from jail

to Mariah.

Crim.R. 16 provides for discovery and inspection by either party in a

criminal case. Specifically, Crim.R. 16(B) provides that, upon a defendant’s demand

for discovery, the state must permit the defendant to inspect and copy or photograph

tangible objects available to it or within its possession, custody, or control and that

are material to the preparation of the defense or are intended for use by the state as

evidence at the trial.

A trial court does not abuse its discretion in admitting undisclosed

evidence that is discoverable under Crim.R. 16 unless the record demonstrates at

least one of the following factors: “(1) that the prosecution’s failure to disclose

[the evidence] was a willful violation of Crim.R. 16, (2) that foreknowledge of the

[evidence] would have benefited the accused in the preparation of his defense, or

(3) that the accused was prejudiced by admission of the [evidence].”

State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983), syllabus.

In examining the first Parson factor, we find that the state’s failure to

disclose the evidence did not constitute a willful violation of Crim.R. 16. The record

demonstrates that the evidence was not made available to the state until the day

before trial, and as soon it was made available to it, the state informed the defense.

In examining the second Parson factor, appellant makes a blanket

statement that the “timing of this disclosure rendered counsel unable to provide

effective assistance in violation of the Sixth Amendment,” but without more, we are

unable to ascertain how that foreknowledge of the evidence would have benefitted

appellant in the preparation of his defense. In fact, after ruling that the evidence

was going to be allowed, the trial court asked counsel if he wished to speak to

appellant about it, and counsel declined. Roniesha was named in discovery.

Appellant knew of his conversations with Roniesha relative to this case.

Under the third Parson factor, we find that appellant has failed to

demonstrate that he was prejudiced by the admission of the evidence. Appellant

mainly contends that the evidence was irrelevant. At the trial court level, he also

contended that it was prejudicial because the references to “jail” in the evidence

would alert the jury that he was incarcerated. However, the trial court “cured” that

potential prejudice by having the state redact references to “jail.” The calls were

referred to as “recorded conversations.” And that he wanted to get in contact with

Roniesha “to check her temperature” was relevant.

Because none of the Parson factors were met, we conclude that the

trial court did not abuse its discretion in admitting Roneisha’s social media

messages and calls into evidence.

Regarding relevance, Evid.R. 401 defines “relevant evidence” as

“evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Generally, relevant evidence is admissible, and

irrelevant evidence is inadmissible. Evid.R. 402. “[T]he question of whether

evidence is relevant is ordinarily not one of law but rather one which the trial court

can resolve based on common experience and logic.” State v. Lyles, 42 Ohio St.3d

98, 99, 537 N.E.2d 221 (1989).

Evid.R. 403(A) provides that “[a]lthough relevant, evidence is not

admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” For the purpose of

Evid.R. 403(A), emphasis must be placed on the word “unfair” because “‘if unfair

prejudice simply meant prejudice, anything adverse to a litigant’s case would be

excludable.’” State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302,

¶ 24, quoting Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d

890 (2001). Thus, “‘[u]nfair prejudice is that quality of evidence which might result

in an improper basis for a jury decision.’” Crotts at id., quoting Oberlin at id.

Evidence may be unfairly prejudicial if it “‘arouses the jury’s emotional sympathies,

evokes a sense of horror, or appeals to an instinct to punish.’” Crotts at id., quoting

Oberlin at id. Because fairness is subjective, the determination of whether evidence

is unfairly prejudicial is left to the sound discretion of the trial court. Crotts at ¶ 25,

citing State v. Robb, 88 Ohio St.3d 59, 723 N.E.2d 1019 (2000).

Other pieces of evidence appellant challenges relate to his interaction

with codefendant Minor. First, he challenges exhibit No. 13, which was a two-

minute call codefendant Minor made to his mother. At the time, Minor was in jail

on this case and appellant had not yet been arrested. During the call, Minor told his

mother that appellant said he would post his bond. Second, appellant challenges

two letters that he sent to Minor while they both were incarcerated, exhibit Nos. 16

and 17. In both letters appellant (1) questioned Minor saying that he was “playing

with his life”; (2) said he was being advised to plea to “25 to life”; (3) said his lawyers

were telling him that Minor was going to “write a statement against” him; (4) said

he was “loyalty over everything”; and (5) said he had seen the evidence and it was

not “sh**.” Minor testified that he believed appellant was concerned he would testify

against him, and appellant was warning him to keep quiet.

Upon review, the trial court did not abuse its discretion in allowing

the two-minute call Minor made to his mother or the letters appellant sent to Minor

while he and Minor were incarcerated. Collectively, the evidence was relevant

because it tended to show appellant’s investment in the case — and, specifically,

investment beyond concern for a friend. Rather, it tended to show that appellant

was invested in protecting his own self- interests.

Also relevant were the calls in which appellant instructed Mariah to

reach out to his ex-girlfriend, Roniesha, who was his girlfriend at the time of the

incident, because he wanted her phone number. According to the calls he made to

Mariah, appellant wanted to “check her [Roniesha’s] temperature” because he saw

her name “popped up” in discovery and he wanted to know why. Again, this

evidence was relevant because it showed appellant’s investment in the case —

specifically, his investment in protecting his own self- interests.

The above-mentioned evidence was appellant’s own statements or

statements made on his behalf. It was relevant and probative. Further, the

probative value of the evidence was outweighed by any prejudice. We note in

particular that the state referred to the calls as “recorded conversations” rather than

jail calls and redacted reference to appellant being in jail in the Facebook messages.

On this record, the first assignment of error is overruled.

Sufficient Evidence Supports the Convictions

In his second assignment of error, appellant contends that the trial

court erred in denying his Crim.R. 29 motion for judgment of acquittal.

Sufficiency is a question of law. State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997); State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d

668 (1997). If the state’s evidence is found to have been insufficient as a matter of

law, then on appeal, the court may reverse the trial court. Thompkins, at paragraph

three of the syllabus, citing Ohio Constitution, Article IV, Section 3(B)(3).

Under this construct, the state would have failed in its burden of production, and as

a matter of due process, the issue should not even have been presented to the jury.

Thompkins at 386; Smith at id.

“An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard,

an appellate court does not conduct an exhaustive review of the record, or a

comparative weighing of competing evidence, or speculation as to the credibility of

any witnesses. Instead, the appellate court presumptively “view[s] the evidence in

a light most favorable to the prosecution.” Jenks at id.

Appellant first claims that the convictions are not supported by

sufficient evidence because of the lack of forensic evidence, especially in light of

Minor’s testimony that appellant was covered in blood when he got in his car after

the shooting and the police had access to the car. Forensic evidence is not a

prerequisite to a murder conviction, however. See State v. Gardner, 8th Dist.

Cuyahoga No. 111506, 2023-Ohio-307, ¶ 40. Minor identified appellant as the

shooter and that identification alone was sufficient evidence as to the counts relative

to Jumah. Appellant’s contention that Minor’s “testimony was self-serving and not

credible” is not proper grounds for a sufficiency review. We reiterate that we do not

speculate on witness credibility under a sufficiency-of-the evidence review. Jenks at

id.

Appellant next insinuates that the evidence was insufficient to support

the aggravated robbery charges relative to Muzamil and Osman because nothing

was taken from them. The statute under which appellant was indicted,

R.C. 2911.01(A)(1), provides that “[n]o person, in attempting or committing a theft

offense * * * shall * * * [h]ave a deadly weapon on or about the offender’s person or

under the offender’s control and either display the weapon, brandish it, indicate that

the offender possesses it, or use it.” (Emphasis added.) The evidence was sufficient

to establish that appellant and Minor attempted to rob Muzamil and Osman while

appellant had a gun.

The evidence was also sufficient to support the conviction against

appellant for the fatal shooting of Jumah. Minor’s testimony as follows was

sufficient: (1) appellant had a gun and when they entered the apartment complex

and he did not see Jumah with a gun, (2) he, appellant, and Jumah were the only

three in that area, (3) he heard gunshots as he ran away, and (4) appellant followed

him to his car, was covered in blood, and said, “I didn’t mean to do it.”

We are not persuaded by appellant’s contention that the identification

of appellant as the shooter was faulty because Minor was the only person who

identified him. The jury was afforded the opportunity to compare Minor’s in-court

identification of appellant with the video surveillance identifications of him.

Although the other witnesses were unable to identify appellant because he covered

his face both times, he was at the apartment complex on the day in question and

they were able to give a general description — exclusive of his face — of him for the

jury.

Other evidence presented by the state was sufficient to sustain the

convictions. For example, forensic evidence from Minor’s cellular and Google

accounts, compared with appellant’s Google account information, demonstrated

that both men’s devices were together throughout the day and evening in question.

Further, later that evening after the fatal shooting of Jumah, appellant messaged

Roniesha, his girlfriend at the time, and indicated that he had “gotten into

something” that he could not talk about, and that he needed her. When he found

out that Roniesha’s name was mentioned in his discovery, he had Mariah contact

her to “take her temperature.”

The state presented sufficient evidence to support the convictions; the

second assignment of error is therefore overruled.

Convictions not against the Manifest Weight of Evidence

In his third assignment of error, appellant challenges his convictions

as being against the manifest weight of the evidence.

Manifest weight is a question of fact. Thompkins, 78 Ohio St.3d at

387, 678 N.E.2d 541. If the trial court’s judgment is found to have been against the

manifest weight of the evidence, then an appellate panel may reverse the trial court.

Id. Under this construct, the appellate court “sits as the ‘thirteenth juror’ and

disagrees with the jury’s resolution of the conflicting testimony.” Id.

In a manifest weight analysis, an appellate court “reviews the entire

record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and * * * resolves conflicts in the evidence.” Id. “A court reviewing

questions of weight 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 (Cook, J., concurring). “The weight to be given the evidence and the

credibility of witnesses are primarily for the trier of the facts.” State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

An appellate court may not merely substitute its view for that of the

jury but must find that “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.”

Thompkins at 387; see also id. at 390 (Cook, J., concurring) (stating that the “special

deference given in a manifest-weight review attaches to the conclusion reached by

the trier of fact.”). Accordingly, reversal on manifest weight grounds is reserved for

“the exceptional case in which the evidence weighs heavily against the conviction.”

Id. at 387.

In this assignment of error is where we can consider appellant’s attack

of Minor’s credibility. The jury heard all about his credibility issues: that he was a

known drug dealer with a criminal history, that he claimed he did not use or own

guns since his release from prison in April 2021, yet he purchased a gun from the

maintenance man at the apartment complex, and that the state was going to

recommend a six-year sentence as part of a plea bargain for his part in this case. The

jury chose to believe Minor — not an incredible result given the other evidence

against appellant. That other evidence included statements appellant made or were

made on his behalf and forensic digital evidence demonstrating that appellant and

Minor were together for most of the day and evening in question. Included in the

statements appellant made on the evening of the incident, after the shooting, were

that he had “gotten into something” that he could not talk about. And included in

the digital evidence were searches appellant conducted the day after the shooting to

memorial pages for homicide victims.

Appellant also claims in this assignment of error that the video

surveillance evidence was not properly authenticated and that a proper chain of

custody was not established.

Evid.R. 901 provides for the authentication or identification of

evidence prior to its admissibility. It provides in relevant part that “the

authentication or identification as a condition precedent to admissibility is satisfied

by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” Evid.R. 901(A). “The authentication requirement of

Evid.R. 901(A) is a low threshold that does not require conclusive proof of

authenticity, but only sufficient foundation evidence for the trier of fact to conclude

that the evidence is what its proponent claims it to be.” State v. Toudle, 8th Dist.

Cuyahoga No. 98609, 2013-Ohio-1548, ¶ 21, citing Yasinow v. Yasinow, 8th Dist.

Cuyahoga No. 86467, 2006-Ohio-1355, ¶ 81.

In this case, multiple witnesses testified about the video evidence,

either because they were in the footage or had knowledge of what the footage

purported to be. On this record, the evidence was properly authenticated.

We likewise do not find a chain-of-custody issue. As a general matter,

“‘the state [is] not required to prove a perfect, unbroken chain of custody.’” State v.

Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 57, quoting State v.

Keene, 81 Ohio St.3d 646, 662, 693 N.E.2d 246 (1998). “‘A strict chain of custody is

not always required in order for physical evidence to be admissible.’” Id., quoting

State v. Wilkins, 64 Ohio St.2d 382, 389, 415 N.E.2d 303 (1980).

Here, the investigating detective obtained the video surveillance at the

start of his investigation. The detective then gave the evidence to the special agent

when he became involved in the investigation. The special agent testified at trial

about how law enforcement came into possession of the evidence. On this record,

the state established a proper chain of custody.

In light of the above, this is not the exceptional case in which the

evidence weighs heavily against the conviction. Appellant’s third assignment of

error therefore overruled.

Appellant’s Speedy Trial Rights were not Violated

In his fourth assignment of error, appellant contends that his right to

a speedy trial was violated.

Criminal defendants are guaranteed the right to a speedy trial under

both the state and federal constitutions. Ohio Constitution, Article I, Section 10; the

Sixth Amendment to the U.S. Constitution. “Speedy-trial provisions are mandatory,

and courts must strictly enforce them.” State v. Parker, 113 Ohio St.3d 207, 2007-

Ohio-1534, 863 N.E.2d 1032, ¶ 15.

Ohio has codified defendants’ speedy-trial guarantees in R.C. 2945.71.

Under R.C. 2945.71(C)(2), a person charged with a felony must be tried within 270

days from arrest. Each day that a defendant is held in jail in lieu of bond is counted

as three days. R.C. 2945.71(E). Therefore, the statute’s triple-count provision

requires the state to try jailed defendants within 90 days from arrest. State v.

Henderson, 1st Dist. Hamilton No. C-100021, 2010-Ohio-5730, ¶ 9.

Under R.C. 2945.72, the time limit may be extended by certain events,

however. Relevant here, the statute provides:

The time within which an accused must be brought to trial, or, in the

case of felony, to preliminary hearing and trial, may be extended only

by the following: * * * (B) Any period during which * * * the accused’s

mental competence to stand trial is being determined * * *; * * * (E)

Any period of delay necessitated by reason of a plea in bar or

abatement, motion, proceeding, or action made or instituted by the

accused; * * * (G) Any period during which trial is stayed pursuant to

an express statutory requirement, or pursuant to an order of another

court competent to issue such order; [or] (H) The period of any

continuance granted on the accused’s own motion, and the period of

any reasonable continuance granted other than upon the accused’s own

motion.

R.C. 2945.72.

Initially, we note that, despite appellant, pro se, raising speedy trial

several times, the trial court only made one speedy trial determination because,

other than the one time, it was either never raised by counsel or improperly raised

by appellant when he was represented by counsel and his counsel never joined in his

motions. Criminal defendants are not entitled to “hybrid” representation. That is,

defendants represented by counsel may not act simultaneously as their own counsel.

State v. Ojile, 1st Dist. Hamilton No. C-200340, 2021-Ohio-2955, ¶ 9. Therefore,

other than one challenge when appellant was properly proceeding pro se, he had no

right to file motions to dismiss and the trial court was prohibited from entertaining

them. State v. Castagnola, 9th Dist. Summit Nos. 28621, 28672, and 28702, 2018-

Ohio-1604, ¶ 14.

We find no merit to the one properly raised challenge. The delay in

this case was overwhelmingly attributed to appellant’s constant change of counsel,

which then necessitated new counsel getting “up to speed” on the case. Further,

appellant’s pro se motions qualified as tolling events under R.C. 2945.72(E) for

purposes of calculating speedy trial time. See State v. Miller, 9th Dist. Lorain

No. 10CA009922, 10CA009915, 2012-Ohio-1263, ¶ 13. This is so, because absent at

least a cursory review of the pro se motion, it would not be possible to determine

whether defense counsel joined in the motion or indicated some need for the relief

the defendant sought. State v. Davis, 10th Dist. Franklin No. 05AP-193, 2006-Ohio-

5039, ¶ 12. Moreover, the case was tolled for a period of time pursuant to the

common pleas court’s administrative orders in dealing with the Covid-19 pandemic.

See State v. Tuttle, 8th Dist. Cuyahoga No. 110508, 2022-Ohio-303, ¶ 31; State v.

Virostek, 8th Dist. Cuyahoga No. 110592, 2022-Ohio-1397, ¶ 92; State v. Quinn,

8th Dist. Cuyahoga No. 110692, 2022-Ohio-2038, ¶ 36, and In re C.C., 2022-Ohio-

2264, 192 N.E.3d 1203, ¶ 37 (8th Dist.). The case was also tolled because of

appellant’s failure to respond to the state’s discovery request.

On this record, we find no violation of appellant’s right to a speedy

trial. The fourth assignment of error is overruled.

Trial Counsel was not Ineffective

For his fifth assigned error, appellant contends that his trial counsel

was ineffective by not objecting to certain trial testimony and not objecting to the

video evidence.

In order to establish a claim of ineffective assistance of counsel, the

applicant must demonstrate that counsel’s performance was deficient and that the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989); State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996).

First, appellant contends that counsel was ineffective for not objecting

to hearsay testimony elicited from Minor; specifically, testimony about the firearm

he purchased from the maintenance man. Hearsay is defined as “a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Evid.R. 801(C). In general,

hearsay is not admissible. Evid.R. 802.

A careful review of the testimony regarding Minor’s purchase of

appellant’s stolen gun from the maintenance man does not reveal hearsay

testimony. The relevant testimony was as follows:

[Assistant prosecutor]: After [appellant] told you that that was his gun,

did it then look familiar?

[Minor]: Yes.

[Assistant prosecutor]: Now, did you ask the maintenance man where

he got it from?

[Minor]: Yes.

[Assistant prosecutor]: Did you relay what the maintenance man told

you to appellant?

[Minor]: Yes.

[Assistant prosecutor]: Okay. So based on what [appellant] learned

from you, did you guys talk about the theft of this gun?

[Minor]: Yes.

Tr. 721.

The record demonstrates that Minor did not testify as to what the

maintenance man told him about the stolen gun. Thus, counsel was not ineffective

for not objecting to the testimony — it was not hearsay testimony.

Second, appellant contends that because there were issues with

authentication and chain of custody with the video evidence, had counsel objected,

it most likely would not have been admitted. For the reasons already discussed,

there was sufficient evidence to authenticate the evidence and establish its chain of

custody. As such, counsel was not ineffective for not objecting to it.

The fifth assignment of error is overruled.

Denial of Involuntary Manslaughter Jury Instruction was not an Abuse

of Discretion

In appellant’s sixth assignment of error, he contends that the trial

court abused its discretion by denying his request for an involuntary manslaughter

instruction.

Trial courts have broad discretion in determining whether the

evidence adduced at trial was sufficient to warrant a jury instruction. State v.

Morris, 5th Dist. Guernsey No. 03CA29, 2004-Ohio-6988, ¶ 55, rev’d on other

grounds, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174; State v. Mitts, 81

Ohio St.3d 223, 228, 690 N.E.2d 522 (1998). “When reviewing a trial court’s jury

instructions, the proper standard of review for an appellate court is whether the trial

court’s refusal to give a requested instruction constituted an abuse of discretion

under the facts and circumstances of the case.” State v. Sims, 8th Dist. Cuyahoga

No. 85608, 2005-Ohio-5846, ¶ 12, citing State v. Wolons, 44 Ohio St.3d 64, 541

N.E.2d 443 (1989). A trial court does not abuse its discretion by not giving a jury

instruction if the evidence is insufficient to warrant the requested instruction. State

v. Lessin, 67 Ohio St.3d 487, 494, 620 N.E.2d 72 (1993).

The Ohio Supreme Court has stated the following relative to

instructing a jury on a lesser included offense:

A criminal defendant is entitled to a lesser-included-offense instruction

[ ] only where the evidence warrants it. Thus, the trial court’s task is

two fold: first, it must determine what constitutes a lesser included

offense of the charged crime; second, it must examine the facts and

ascertain whether the jury could reasonably conclude that the evidence

supports a conviction for the lesser offense and not the greater.

(Citations omitted.) State v. Kidder, 32 Ohio St.3d 279, 280, 513 N.E.2d 311 (1987).

Involuntary manslaughter is a lesser included offense of aggravated

murder. State v. Thomas, 40 Ohio St.3d 213, 215, 533 N.E.2d 286 (1988). Thus, we

consider the second step for determining whether an involuntary manslaughter

instruction should have been provided, that is, whether the evidence not only

supported an acquittal on the initial crime, but also supported a conviction on the

lesser included offense. An instruction on a lesser included offense is not required

simply because some evidence of a lesser included offense is advanced. State v. Hill,

8th Dist. Cuyahoga No. 87645, 2006-Ohio-6425, ¶ 32.

No testimony or evidence presented at trial supported an involuntary

manslaughter instruction. Appellant’s defense at trial was that Minor was lying and

appellant was not involved or present on the scene for either the aggravated

robberies or the deadly shooting. Appellant’s defense that he was not even present

at the scene for the crimes undercuts his request for an involuntary manslaughter

instruction. See, e.g., State v. Smith, 8th Dist. Cuyahoga No. 100204, 2014-Ohio-

2057, ¶ 56 (Counsel was not ineffective for not requesting a lesser-included

instruction because the defendant’s theory of the case was that he acted in defense

of himself and another, which counsel could have logically decided was inconsistent

with requesting a jury instruction on aggravated assault.).

The sixth assignment of error is overruled.

The Record Supports the Imposition of Consecutive Sentences

In his final assignment of error, appellant contends that that record

does not support the trial court’s findings for the imposition of consecutive

sentences.

Under R.C. 2929.14(C)(4), a trial court may order prison terms to be

served consecutively if it finds “the consecutive service is necessary to protect the

public from future crime or to punish the offender and that consecutive sentences

are not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public.” Further, the court must also find any of

the following:

The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

Revised Code, or was under post-release control for a prior offense.

At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the

courses of conduct adequately reflects the seriousness of the offender’s

conduct.

The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

R.C. 2929.14(C)(4).

There are two ways a defendant can challenge consecutive sentences

on appeal. First, the defendant can argue that consecutive sentences are contrary to

law because the court failed to make the findings required by R.C. 2929.14(C)(4).

See R.C. 2953.08(G)(2)(b); State v. Reindl, 8th Dist. Cuyahoga Nos. 109806,

109807, and 109808, 2021-Ohio-2586, ¶ 13; State v. Nia, 2014-Ohio-2527, 15

N.E.3d 892, ¶ 16 (8th Dist.). Second, the defendant can argue that the record “clearly

and convincingly” does not support the court’s findings made pursuant to

R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Reindl at id.

Appellant does not contend that the trial court did not make the

required statutory findings and our review demonstrates that the court in fact did.

Rather, appellant argues that the record does not support the findings.

In addressing this assignment of error, we review the record and consider whether

it does not support the trial court’s consecutive-sentence findings. State v. Trujillo,

8th Dist. Cuyahoga No. 112442, 2023-Ohio-4125, citing State v. Gwynne, Slip

Opinion No. 2023-Ohio-3851, ¶ 5.

Upon review, we are not able to say that the record “clearly and

convincingly” does not support the court’s findings. The record demonstrates, as

found by the trial court, that the robberies and murder were committed as part of a

course of conduct and the harm caused by the crimes was so great or unusual that

no single prison term for the offenses would adequately reflect the seriousness of

appellant’s conduct.

The seventh assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_______________________

MICHAEL JOHN RYAN, JUDGE

EILEEN A. GALLAGHER, P.J., and

MARY J. BOYLE, J., CONCUR

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.