[Cite as State v. Beatty, 2026-Ohio-751.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, Case No. 2025 AP 03 0010
Plaintiff - Appellee Opinion And Judgment Entry
-vs- Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2024 CR 09 0276 CHRISTOPHER D. BEATTY, Judgment: Affirmed Defendant – Appellant Date of Judgment Entry: March 4, 2026
BEFORE: Craig R. Baldwin; Robert G. Montgomery; David M. Gormley, Judges
APPEARANCES: KRISTINE W. BEARD, for Plaintiff-Appellee; KIMBERLY KENDALL CORRAL and GABRIELLE M. PLOPLIS, for Defendant-Appellant.
Montgomery, J.
STATEMENT OF THE CASE
{¶1} This case stems from a home invasion and corresponding attack on an
individual, Preston Morrison, and involved four co-defendants: Appellant, Christopher
Beatty, (hereinafter “Appellant”), Jared “Will” Soltero (“Soltero”), Henry Wellman
(“Wellman”), and Todd Riordan (“Riordan”). Appellant was indicted by the Tuscarawas
County Grand Jury for one count of aggravated burglary in violation of R.C. 2911.11(A)(1)
a first-degree felony, and one count of felonious assault in violation of R.C. 2903.11(A)(1)
a second-degree felony. Appellant pled not guilty. {¶2} On March 11, 2025, the matter proceeded to a jury trial. Prior to the
presentation of the evidence, the defense moved for the separation of witnesses and
argued that the victims' presence in the courtroom during the proceedings would deny
Appellant's right to a fair trial. The Court overruled the motion, and the victims were
permitted to remain in the courtroom for the entire proceeding. During trial, the State
presented fourteen witnesses, including Officers Bradley Geist, Darren Avon, Chad
Dorsey and Ty Norris - from the New Philadelphia Police Department; Tonya Johnson,
Miranda Gowins, Nathan Reynolds, co-defendants Wellman and Riordan; and treating
physicians Dr. James Belleza and Dr. Kurt Garren; and victims Shandi and Preston
Morrison.
{¶3} On March 13, 2025, the jury returned its verdict finding Defendant guilty of
one count of Aggravated Burglary and one count of Felonious Assault. The State agreed
that the Counts were allied offenses of similar import and the State elected to proceed
with sentencing for one count of Aggravated Burglary. On March 25, 2025, after making
various findings, the court sentenced Defendant to an indefinite prison term of ten to
fifteen years. The court advised Defendant regarding post-release control and a period
of supervision by the Adult Parole Authority after release from prison is mandatory in this
case.1 This timely appeal followed.
1 In the sentencing Entry, the court notes the following: (1) The victims suffered serious physical, psychological, and economic harm, as there were physical injuries, emotional trauma, and expenses of moving from the crime scene and medical treatment; (2) The offender was out on bail before trial or sentencing on a Harrison County case when the offense was committed; (3) The offender has prior adjudications of delinquency, including Aggravated Felonious Assault, Breaking and Entering, Arson, and Felonious Assault; (4) The offender has a prior history of criminal conviction, including Breaking and Entering (F-5), Grand Theft of Motor Vehicle (F-4), and Persistent Disorderly Conduct, as well as multiple misdemeanor offenses; (5) The offender has prior convictions for felony offenses of violence, including Robbery (F-2) and Felonious Assault. STATEMENT OF FACTS
{¶4} On August 20, 2024, the four co-defendants named above, and two
additional individuals James Funkhauser and Nathan Reynolds, worked the morning
together at TJD Energy Services and at lunchtime, they went to lunch at Buffalo Wild
Wings (hereinafter “BW3s”) in New Philadelphia, Ohio. The group arrived in two separate
white vans and were served by a waitress named Miranda Gowins (“Gowins”).
{¶5} At trial, Gowins described loud and boisterous conversation and heavy
drinking at the group’s table, with an alcohol tab between $200.00 and $300.00.2 At some
point, co-defendant Riordan realized that Gowins had previously dated one of the victims,
Preston Morrison (“Preston”) and brought up the subject to Gowins. 3 Gowins was in a
relationship with Preston for five years and they shared a six-year-old son together.
Preston was physically abusive towards Gowins, which the men at the table did not
appreciate. Gowins testified that Preston had been convicted of crimes of violence
against her and she even obtained a protection order against him. Gowins testified that
Riordan asked her repeatedly about her previous relationship with Preston and her
experiences of past domestic violence with him. Wellman then sent a Facebook friend
request to Preston.
{¶6} When they left BW3s, the men drove the two white trucks towards the
Morrison home and eventually arrived across the street from the residence, near West
Elementary School. The school has numerous surveillance cameras that captured the
truck’s arrival as well as the men exiting the trucks and walking toward the home.
2 The State represented the alcohol bill to be around $300.00; Gowins remembered it as closer to $200.00. 3 Riordan and Preston also previously worked together at TJD. Appellant and the three co-defendants approached the residence, while Funkhauser and
Reynolds stayed behind and got back in the truck. Wellman knocked on the front door,
while Riordan and Appellant were standing on the porch with him.
{¶7} Shandi Morrison (“Shandi”) testified she was on a work zoom call at the time
she heard a knock on her front door. She looked out her window and saw three men
standing on the porch. Shandi asked Preston to answer the door, and she got the dog
and went upstairs. A few moments later, Shandi heard someone ask, “Are you Preston?”
Shandi testified she instantly knew something was wrong when she heard Preston saying,
"What are you doing?" and then heard loud banging. Tr., at p. 337. Shandi saw Preston
being hit and struggling to get away. Shandi testified that someone yelled to her "We'll
be done soon.” Tr., at p. 338. When the men started to leave, Preston ran to the kitchen
and grabbed a knife to defend himself. After they left, Shandi ran downstairs and saw
Preston hunched over in the kitchen holding a knife with blood everywhere. Shandi
observed blood pouring out of his mouth and his ear hanging off his head. Tr., at p. 344.
Shandi immediately called 911.
{¶8} Preston himself testified in detail regarding the incident. When Preston
answered the door, he saw four men he later identified as Appellant, Riordan, Wellman,
and Soltero. Appellant asked if he was Preston and forced his way into the home.
Morrison testified Appellant came in first "bull rushed, instantly swinging. Made contact
numerous times from the very beginning. I remember specifically my eye just leaking and
not being able to see great out of my right eye right away. Chris Beatty was the first one
that led the charge". Tr., at pp. 427-28. Preston was then dragged to the bathroom where
he and Appellant fell into the tub and got wrapped up in the shower curtain, while two other men were striking him from other angles. Preston testified that Appellant bit his ear
and then struck him with the toilet tank lid twice. Tr., at pp. 430-33. As soon as the co-
defendants began to retreat, Preston ran to the kitchen and grabbed a knife to defend
himself.
{¶9} Law enforcement and medics quickly arrived at the scene and arranged for
Preston to be transported to the hospital. Detectives Chad Dorsey (“Det. Dorsey”) and
Ty Norris (“Det. Norris”) responded to the scene and testified at trial. Det. Dorsey
identified photographs of the Morrison residence and crime scene, collected and identified
pieces of the broken toilet tank lid used, and collected and identified a silver metal
swastika ring that Shandi found in the bathtub after the men left her home.
{¶10} Officer Bradley Geist (“Officer Geist”) also responded to the scene. Officer
Geist testified that when he arrived, Shandi answered the door and was hysterical, out of
breath and in disarray. Officer Geist observed blood throughout the house and stated the
bathroom was in disarray. Officer Geist also saw Preston in the kitchen bleeding from his
face, and stated he was hysterical, confused, and struggling to communicate. Officer
Geist was wearing a body camera and said body camera footage was played for the jury
and admitted as evidence without objection.
{¶11} At the hospital, Det. Norris took photographs of Preston's injuries. The
photos were shown to the jury and admitted as evidence. Det. Norris also asked Shandi
to go through Riordan's Facebook page to try and identify any of the men involved in the
assault. Shandi viewed Riordan's Facebook page and his friends list and from there, was
able to identify Appellant as one of the assailants. Det. Norris also interviewed the co-
defendants and waitress Gowins. Gowins confirmed the events at BW3s prior to the assault including the fact that Soltero wore a silver ring. Gowins distinctly remembered
the ring because it had a swastika emblem on it and because he kept banging it on the
restaurant table.
{¶12} Officer Barren Avon (“Officer Avon”) also works for the New Philadelphia
Police Department and is a school resource officer for West Elementary. Officer Avon
collected and identified the surveillance video from the West Elementary School, and the
footage was played for the jury and admitted as evidence without objection. The video
showed two white trucks pulling up near the school, the passengers exiting the trucks and
the four co-defendants walking toward the Morrison home, and eventually the men
returning to the trucks and leaving.
{¶13} Co-defendants Wellman, Riordan, and bystander Reynolds all appeared
and testified at the trial. All three identified Appellant as a co-defendant in the attack on
Preston. Reynolds testified that after leaving BW3s, he got out of the truck and started
to walk towards the Morrison home with the others but turned back because he did not
want to be involved in “whatever was going on.” Tr., at p. 241. Reynolds testified when
Appellant came out of the house his shirt was off, and he walked towards a nearby Rite
Aid. Reynolds picked up Appellant near the Rite Aid and noticed blood on the outside of
his hands. Tr., at p. 246. Reynolds also confirmed that Soltero wears a silver swastika
ring.
{¶14} Wellman testified that Appellant led the charge into the home and described
Appellant doing “chicken wings” as he approached. Although Wellman did not observe
Appellant strike Preston, he knew something was happening with Appellant and Riordan
when he heard Preston stating “Todd, Todd, Todd, you see me, you know me, Todd, Todd, Todd, what are you guys doing.” Tr., at p. 209-10. Wellman testified Preston was
“pleading and you [could] definitely hear the distress out of the tone of his [Preston’s]
voice.” Tr., at p. 210.
{¶15} Riordan also testified for the State. In exchange for his testimony, he pled
guilty to felonious assault for an agreement to serve five years in prison, with judicial
release after six months. Riordan confirmed that Preston’s name came up in
conversation as the group had drinks at BW3s as having dated Gowins. Riordan testified
he rode with Appellant, who drove them to the Morrison home. Although Riordan stated
his memory was "foggy" due to the amount of alcohol he consumed that day, he testified
Appellant forced his way into the Morrison home, grabbed Preston, and started to punch
him. As a result of the attack, Preston suffered significant injuries including stitches,
numerous lacerations, and even surgery to reattach his ear.
ASSIGNMENTS OF ERROR
{¶16} “I. ASSIGNMENT OF ERROR I: THE TRIAL COURT ERRED IN PERMITTING WITNESS PRESENCE DURING TRIAL TESTIMONY OVER DEFENSE OBJECTION.”
{¶17} “II. ASSIGNMENT OF ERROR II: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR EXCLUSION OF SUGGESTIVE PHOTOGRAPHIC LINEUP.”
{¶18} “III. ASSIGNMENT OF ERROR III: THE TRIAL [SIC] ERRED FOR PERMITTING THE STATE TO INTRODUCE EVIDENCE WITHOUT LAYING THE PROPER FOUNDATION, INCLUDING IMPEACHMENT AND BOLSTERING OF ITS OWN WITNESS.”
{¶19} “IV. ASSIGNMENT OF ERROR IV: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE USE OF PREJUDICIAL TERMS 'VICTIM' AND ‘FELONIOUS ASSAULT' TO DESCRIBE THE COMPLAINING WITNESS AND ALLEGED CONDUCT.”
{¶20} “V. ASSIGNMENT OF ERROR V: THE TRIAL COURT ERRED IN PERMITTING INTRODUCTION OF UNAUTHENTICATED VIDEO EVIDENCE.” {¶21} “VI. ASSIGNMENT OF ERROR VI: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO IMPROPER IDENTIFICATION AND NARRATIVE TESTIMONY.”
{¶22} “VII. ASSIGNMENT OF ERROR VII: THE TRIAL COURT WAS DIVESTED OF JURISDICTION AFTER IT FAILED TO BRING THE DEFENDANT TO TRIAL IN 90 DAYS, RENDERING APPELLANT'S CONVICTIONS VOID.”
{¶23} “VIII. ASSIGNMENT OF ERROR VIII: THE STATE ENGAGED IN PROSECUTORIAL MISCONDUCT FOR REPEATED COMMENTARY ON CO- DEFENDANT'S SIZE IN CLOSING ARGUMENTS.”
{¶24} “IX. ASSIGNMENT OF ERROR IX: THE TRIAL COURT ERRED IN PERMITTING INTRODUCTION OF OVERLY PREJUDICIAL EVIDENCE THAT APPELLANT'S CO-DEFENDANT WORE A SWASTIKA RING.”
{¶25} “X. ASSIGNMENT OF ERROR X: THE CUMULATIVE EFFECT OF MULTIPLE ERRORS DEPRIVED APPELLANT OF HIS CONSTITUTIONALLY GUARANTEED RIGHT TO A FAIR TRIAL UNDER THE FEDERAL AND STATE CONSTITUTION.”
ANALYSIS
Victim’s Presence During Trial
{¶26} In the first assignment of error, Appellant argues the trial court erred by
allowing the victims to be present in the courtroom during the entire trial. Appellant claims
that because the victims testified last, there is a strong likelihood they altered their
testimony based on the evidence presented, thereby denying Appellant a fair trial. We
disagree.
{¶27} A trial court’s decision to allow a victim to remain in the courtroom during
trial is within the court’s sound discretion. State v. Klusty, 2015-Ohio-2843, ¶¶ 31-32 (5th
Dist.), citing State v. Maley, 2013-Ohio-3452 (1st Dist.). A reviewing court will not reverse
a trial court's decision to allow a victim to remain in the courtroom during testimony unless
the trial court abused its discretion. State v. Pickett, 2016-Ohio-4593, ¶ 15 (4th Dist.). An abuse of discretion is more than a mere error of law or judgment. It implies the court’s
decision was arbitrary, unreasonable, or unconscionable. Id.
{¶28} A victim has a constitutional and statutory right to be present during the trial
unless the court determines that exclusion of the victim is necessary to protect the
defendant's right to a fair trial. Ohio Const. art. 1, § 10(a); R.C. 2930.09. Ohio Const. art.
1, § 10(a) specifically provides victims constitutional rights to reasonable and appropriate
notice, information, access, and protection and to a meaningful role in the criminal justice
process. In enacting R.C. 2930.09, the Ohio Legislature specifically recognized that it is
difficult to have a meaningful role in the criminal justice process if the victim is banished
from the courtroom. See State v. Ricco, 2009-Ohio-5894, ¶ 27 (11th Dist.).
R.C. 2930.09, also known as Marsy’s law, provides in relevant part:
A victim in a case may be present whenever the defendant or alleged
juvenile offender in the case is present during any stage of the case against
the defendant or alleged juvenile offender that is conducted on the record,
* * * unless the court determines that exclusion of the victim is necessary to
protect the defendant's or alleged juvenile offender's right to a fair trial or to
a fair delinquency proceeding. * * *
Furthermore, Evid.R. 615 makes clear that even when there is a separation of witnesses,
the victim has the right to be present in accordance with the criminal statutes. Ricco, at
¶ 23. Evid.R. 615 provides:
(A) Except as provided in division (B) of this rule, at the request of a party
the court shall order witnesses excluded so that they cannot hear the
testimony of other witnesses, and it may make the order of its own motion. An order directing the "exclusion" or "separation" of witnesses or the like, in
general terms without specification of other or additional limitations, is
effective only to require the exclusion of witnesses from the hearing during
the testimony of other witnesses.
(B) This rule does not authorize exclusion of any of the following persons
from the hearing:
***
(4) in a criminal proceeding, a victim of the charged offense to the extent
that the victim's presence is authorized by statute enacted by the General
Assembly. As used in this rule, “victim” has the same meaning as in the
provisions of the Ohio Constitution providing rights for victims of crimes.
{¶29} Importantly, the defendant claiming error on appeal must establish that the
presence of the victim compromised the defendant's right to a fair trial, requiring more
than a vague assertion or generalized claim of prejudice. Ricco, at ¶ 27; State v. Klusty,
2015-Ohio-2843, ¶ 32 (5th Dist.). A defendant “must present particularized evidence that
the victim's testimony will be so affected by the victim's presence during the testimony of
other witnesses that her right to a fair trial would be violated. General assertions that it is
possible are insufficient." Pickett, at ¶ 18, citing State v. Maley, 2013-Ohio-3452, ¶ 7 (1st
Dist.).
{¶30} Here, Appellant cannot present “particularized evidence” that the victims’
respective testimony was so influenced or affected by their presence in the courtroom
during trial. To the contrary, each victim offered testimony based on their own personal
observations and actual experience on the day in question. Their testimony was specific as to certain details that only they could provide based on their observations. Shandi
observed the men standing on her porch, heard someone yell “we’ll be done soon” and
saw some of the attack on Preston, as well as his resulting injuries. Preston was the one
being attacked and clearly had personal knowledge of the facts to which he testified.
Defense counsel fully cross-examined each victim to test their recollection as well as draw
out potential inconsistencies.
{¶31} There is nothing to suggest their testimony was influenced by any other
witness, including each other’s testimony, or that Appellant’s trial was unfair because
Shandi and Preston were permitted to stay. Indeed, the evidence presented by the State
and against Appellant is significant. Video footage placed Appellant near the Morrison
home, multiple witnesses place Appellant at the home, and at BW3s prior to the crime,
and multiple witnesses confirmed that Appellant “led the charge” into the Morrison home.
Because Appellant cannot demonstrate actual prejudice to him resulting in an unfair trial,
the trial court did not abuse its discretion in allowing the victims to remain in the courtroom.
Appellant’s first assignment of error is overruled.
Ineffective Assistance of Counsel
{¶32} Appellant’s second, fourth, and sixth assignments of error argue that
defense counsel was ineffective and fell below the standard of representation guaranteed
by the Sixth Amendment. Because these assignments of error must be analyzed under
the same standard, we address them together.
{¶33} The standard of review for ineffective assistance of counsel was set forth in
the seminal case of Strickland v. Washington, 466 U.S. 668 (1984), and reiterated by this
court in Mansfield v. Studer, 2012-Ohio-4840 (5th Dist.): A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective
standard of reasonable representation involving a substantial violation of
any of defense counsel's essential duties to appellant. The second prong is
whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart
v. Fretwell (1993), 506 U.S. 364 (1993); Strickland v. Washington, 466 U.S.
668 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989). In order to warrant
a finding that trial counsel was ineffective, the petitioner must meet both the
deficient performance and prejudice prongs of Strickland and Bradley.
Knowles v. Mirzayance, 556 U.S. 111 (2009).
In light of “the variety of circumstances faced by defense counsel [and] the
range of legitimate decisions regarding how best to represent a criminal
defendant,” the performance inquiry necessarily turns on “whether
counsel's assistance was reasonable considering all the circumstances.”
Strickland, at 689. At all points, “[j]udicial scrutiny of counsel's performance
must be highly deferential.” Id.
Studer, at ¶¶ 58-61.
{¶34} Thus, to prevail on an ineffective assistance of counsel argument, appellant
must establish two prongs: first, that his trial counsel’s performance fell below an objective
standard of reasonable representation involving a “substantial violation” of an essential
duty to appellant. Studer, at ¶¶ 58-61. This requires showing that counsel made errors
so serious that counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Id.; Strickland, at 687. Second, appellant must demonstrate actual prejudice by such alleged ineffectiveness. There must be a reasonable probability
that but for counsel's unprofessional errors, the result of the proceedings would have
been different. Strickland, at 691-696. Counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
judgment. Strickland, at 690.
{¶35} In the second assignment of error, Appellant argues that counsel was
ineffective for failing to object to the admission of the photographic lineup because it was
impermissibly suggestive. Appellant claims it was suggestive because Appellant was
about 15 pounds heavier than the other men pictured. Identification testimony tainted by
an unduly suggestive identification procedure may be suppressed. State v. Keene, 1996
Ohio App. Lexis 4048, *121-22 (2d Dist.). “A lineup is unduly suggestive if it steers the
witness to one suspect, independent of the witness's honest recollection.” State v. Adams,
2015-Ohio-3954, ¶ 208.
{¶36} However, even if an identification procedure is unduly suggestive, the
identification testimony derived therefrom is not per se inadmissible where the
identification remains reliable. Indeed, reliability of the identification is the linchpin in
determining its admissibility. Id., citing Manson v. Brathwaite (1977), 432 U.S. 98 (1977).
Thus, if the identification itself is reliable, it is admissible despite the suggestive nature of
the identification procedure (e.g. lineup photo). Keene, supra, citing Neil v. Biggers, 409
U.S. 188 (1972); State v. Moody (1978), 55 Ohio St.2d 64 (1978) (other citations omitted).
{¶37} In this case, Officer Anthony Pellegrino from the Dover City Police
Department (a department that routinely assists the New Philadelphia Police Department)
independently prepared the photo array and testified that he used OHLEG to find pictures of men with similar characteristics to Appellant. Appellant’s bald assertion that the lineup
was unduly suggestive due to Appellant’s weight difference is insufficient to demonstrate
“undue” suggestiveness. Even if it was somehow suggestive, the identification remains
reliable and was properly admitted. Both Shandi and Preston identified Appellant as an
assailant based on their own personal knowledge, as well as from Facebook images.
Without question, Preston got a good look at the individual who forcefully entered his
home and started beating him. Preston also identified Appellant as the one who struck
him with the toilet lid (breaking that lid), and the one who bit his ear. Because the
identification was reliable, defense counsel was not ineffective for failing to object to the
introduction of the photo array as being impermissibly suggestive.
{¶38} In the fourth assignment of error, Appellant claims counsel was ineffective
because he failed to object to the use of prejudicial terms such as “victim” and “felonious
assault.” However, there is nothing to suggest that these terms influenced the jury in
reaching its verdict. Rather, the jury determined that the State proved the elements of
each offense after listening to 14 witnesses’ testimony, viewing numerous exhibits, and
listening to counsel’s arguments as well as proper jury instructions. The court specifically
instructed the jurors that Appellant was presumed innocent, that the defendant must be
acquitted unless the state produces evidence which convinces the jury beyond a
reasonable doubt of every essential element of the offenses charged in the indictment,
and that the evidence does not include opening or closing arguments of counsel and/or
any questions by counsel. This Court will not second guess defense counsel’s strategy
in failing to object every time a certain word was used that Appellant did not like. There is no reasonable probability that the outcome of the trial would have been different had
counsel objected.
{¶39} In the sixth assignment of error, Appellant maintains counsel was ineffective
for failing to object to certain identification video evidence and narrative testimony.
Appellant appears to argue that Officer Avon and Reynolds did not have first-hand
knowledge of what was occurring in the video footage and/or were not qualified to identify
the people appearing in the footage. However, the record belies Appellant’s contention.
{¶40} Pursuant to Evid.R. 701, courts allow identification testimony from videos
where the evidence is based on the perception of the witness and is helpful to determine
a fact at issue. State v. Tomlinson, 2022-Ohio-2575 (8th Dist.). Here, Officer Avon and
Reynolds testified only to what they observed in the video on the day in question based
on personal knowledge. More specifically, Officer Avon was the custodian of the video
footage and simply testified that two white trucks appeared in the video and several men
exited those same trucks. Officer Avon did not identify the white truck as being used in
the offense nor did Officer Avon identify Appellant in any manner. Similarly, Reynolds
watched the footage and identified the truck as being a Dodge Cummins and identified
himself as being in the video. He testified that there were six men in the video but did not
identify Appellant as a person in the video. Reynolds only testified that when he stopped
at a stop sign, as seen in the video, Appellant told him to meet him at Rite Aid. As such,
counsel was not ineffective for failing to object to the identification video evidence or
testimony.
{¶41} To be clear, none of the alleged errors by defense counsel are sufficient to
rise to the level of ineffective assistance of counsel as set forth in Strickland, supra. Counsel’s performance did not fall below an objective standard of reasonable
representation and there is no reasonable probability that the outcome of Appellant’s trial
would have been different but for the alleged errors. To the contrary, the record
demonstrates that defense counsel fully cross-examined each State witness, pointed out
inconsistencies in testimony, attempted to portray Appellant as more of a bystander in the
situation, and overall, zealously advocated for Appellant. Thus, Appellant’s second,
fourth, and sixth assignments of error are overruled in their entirety.
Improper Admittance of Documentary Evidence
{¶42} In the third assignment of error, Appellant claims the state engaged in
“improper bolstering” of Gowins during her testimony. The state introduced a statement
made by Gowins to her attorney regarding her visitation agreement with Preston.
Appellant’s Brief, at p. 16. Appellant also claims the trial court made Gowins “more
credible” by introducing Gowins' prior consistent written statement to police. Appellant
argues the documents were irrelevant and that no proper foundation was laid.
{¶43} A review of the transcript reveals that there was no objection to the line of
questioning at trial and no objection to either document. Because Appellant failed to raise
the issue in the trial court when the court could have corrected any error, he has forfeited
all but plain error for purposes of appeal. State v. Warner, 2025-Ohio-667, ¶ 21 (5th Dist.).
In Warner, this Court stated:
Crim.R. 52(B) affords appellate courts discretion to correct "[p]lain errors or
defects affecting substantial rights," notwithstanding an accused's failure to
meet his obligation to bring those errors to the attention of the trial court.
Notice of plain error, pursuant to Crim.R. 52(B), "is to be taken with the utmost of caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice." State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978). An error affects substantial rights only if it changes the
outcome of the trial. State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-
8126, ¶64, 89 N.E.3d 554.
Warner, at ¶ 22.
{¶44} Thus, Appellant must establish that (1) an error occurred; (2) the error was
obvious; and (3) there is a reasonable probability that the error resulted in prejudice. Id.,
at ¶ 23, citing State v. Bailey, 2022-Ohio-4407 (stating that the elements of the plain-error
doctrine are conjunctive; all three must apply to justify an appellate court’s intervention).
{¶45} Here, Appellant cannot establish a reasonable probability that any error
resulted in actual prejudice to him. Gowins testified regarding her relationship with
Preston, the very fact that apparently influenced the co-defendants to go attack Preston.
Gowins simply reiterated that she and Preston had a son together and Preston enjoyed
companionship pursuant to their shared parenting agreement. The agreement was
merely an extension of her testimony. Regarding her written statement to police, Gowins
testified that what she wrote in her statement was consistent with her testimony on the
stand. There was simply no prejudice to Appellant. Because Appellant cannot
demonstrate the results of the trial would have been different had the evidence been
excluded, the court will not recognize plain error. Appellant’s third assignment of error
is overruled. Authentication of Video Evidence
{¶46} In his fifth assignment of error, Appellant claims video footage from West
Elementary School, State’s Exhibit C, was not properly authenticated because it had no
date or time stamp on it. Appellant claims that because it was not properly authenticated,
neither Officer Avon nor witness Reynolds properly testified regarding what they saw in
the video. Again, there was no objection at trial to the admission of the evidence and
Appellant cannot demonstrate plain error. Even assuming a proper objection, the video
was properly authenticated prior to its admission.
{¶47} The admission of evidence is within the sound discretion of the trial court
and will only be reversed upon a showing that the court abused that discretion. State v.
Heineman, 2021-Ohio-643, ¶ 8 (3d Dist.), citing Peters v. Ohio State Lottery Comm., 63
Ohio St.3d 296, 299 (1992). “The requirement of 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." Heineman, supra; Evid.R.
901(A). “One way to authenticate evidence is to have a witness with knowledge of said
evidence testify to what it is.” Id., citing Evid.R. 901(B)(1).
{¶48} Here, the record demonstrates that Officer Avon properly authenticated the
video. Officer Avon is a school resource officer for West Elementary and has personal
knowledge of the surveillance cameras surrounding the school. Officer Avon identified
the video footage at trial as coming directly from one of the West Elementary School
surveillance cameras. The fact that the footage did not have a date or time stamp on it
is simply insufficient to overcome Officer Avon’s knowledge of the evidence. Officer Avon
further confirmed the footage played to the jury was a “true and accurate copy of the video footage” relative to this specific case. Tr., at p. 134-35. Because the video footage was
properly authenticated, Appellant’s fifth assignment of error is overruled.
Right to a Speedy Trial
{¶49} In the seventh assignment of error, Appellant argues he was denied his right
to a speedy trial pursuant to R.C. 2945.72(H). Specifically, Appellant argues that he was
being held in Harrison County on the same charges as those from Tuscarawas County.
Appellant claims that bond was revoked in Harrison County solely because of the charges
in this case and thus, they are the “same” charges for speedy trial purposes. As a result,
Appellant asserts that his speedy trial time expired on November 26, 2024. Appellant’s
argument is without merit.
{¶50} A speedy trial claim involves a mixed question of law and fact. State v.
Ingram, 2017-Ohio-5685, ¶ 22 (6th Dist.). An appellate court must accept as true any
facts found by the trial court and supported by competent, credible evidence. Id.
However, as to legal issues, the appellate court must apply a de novo standard and
therefore freely review the trial court's application of law to the facts. Id.
{¶51} The right to a speedy trial is encompassed within the Sixth Amendment to
the United States Constitution. It is a fundamental right made obligatory on the states
through the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197 (1978); State v.
Pachay, 64 Ohio St.2d 218 (1980). “Ohio’s speedy trial statutes codify the constitutional
guarantee of a speedy trial.” State v. Lichtenwalter, 2021-Ohio-1394, ¶ 35 (5th Dist.); R.C.
2945.71, et seq. The statutes impose a duty on the state to bring a defendant to trial
within a specified time frame unless the defendant has waived his rights to a speedy trial.
State v. King, 70 Ohio St.3d 158, 160 (1994). The Ohio Supreme Court has stated that Ohio’s statutory speedy trial provisions are “coextensive with the constitutional speedy
trial provisions.”
{¶52} Pursuant to R.C. 2945.71(C)(2), the State must bring a defendant arrested
on felony charges to trial within 270 days of his arrest. When calculating speedy-trial
time, courts ordinarily count each day during which the accused is held in jail in lieu of
bail on the pending charge as three days, known as the 3 for 1 or the triple-count
provision. R.C. 2945.71(E). Importantly, the triple-count provision applies to an individual
held in jail in lieu of bond solely on the pending charges. State v. MacDonald, 48 Ohio
St.2d 66 (1976), paragraph two of the syllabus; State v. Ladd, 56 Ohio St.2d 197 (1978).
{¶53} In Ladd, the Supreme Court applied the MacDonald case to determine if the
triple-count provision applied when a defendant was held in jail on multiple state charges,
charged at different times resulting in two separate indictments and two separate trial
dates. The court determined the triple-count provision was inapplicable to the time when
the defendant was held on both the pending rape charge and the unauthorized use of a
motor vehicle charge. Ladd, at 203. The Court stated:
Surely a defendant held on several charges within the same jurisdiction for
activities constituting a personal crime wave cannot be allowed to put the
state into a position of having to try him on each count within 90 days.
Id.
{¶54} Thus, a defendant facing more than one “pending charge” is not entitled to
the triple-count provision. See State v. Parker, 2007-Ohio-1534, ¶ 10; In other words, a
defendant is not entitled to the triple-count provision if the State issues a subsequent
indictment that contains additional criminal charges that “arise from facts different from the original charges” or from facts the State did not know at the time of the initial
indictment. State v. Wyant, 2026-Ohio-102, ¶ 17 (4th Dist.) (holding that where appellant
was charged in two separate indictments - one for drug offenses in August 2023 and the
second for tampering with evidence and vandalism in June 2024 - the charges were
separate, and the triple-count provision did not apply). In this situation, the defendant is
not being held in jail solely on the pending charge. Id.; State v. Baker, 1997-Ohio-227,
syllabus (triple-count provision doesn't apply when a separate subsequent indictment
contains charges from different facts).
{¶55} Conversely, when a defendant is held in jail on multiple charges in a single
indictment, courts have applied the triple-count provision. State v. Bowman, 41 Ohio
App.3d 318, 323 (1987) (distinguishing MacDonald and Ladd because appellant was
charged with multiple counts under a single indictment and all counts were tried in a single
trial); See, e.g., State v. Bickerstaff, 10 Ohio St.3d 62 (1984) (indicted on three counts of
aggravated robbery and three counts of aggravated murder in single indictment); State v.
Singer, 50 Ohio St.2d 103 (1977); State v. Parker (multiple charges from a criminal
incident with common litigation history constitute incarceration on the 'pending charge').
{¶56} Here, Appellant was indicted in Harrison County on January 12, 2024, for
Felonious Assault, Aggravated Assault, and Domestic Violence. These charges are
separate and distinct from the charges in the instant case. Appellant committed the
instant offense nearly eight months later, on August 20, 2024, and was arrested for said
offense on August 27, 2024. On August 29, 2024, Harrison County moved to revoke
Appellant’s bond and issued a warrant for his arrest. The Harrison County warrant
remained in effect while this case was pending. Because Appellant was being held for separate, unrelated charges in Harrison County, the triple-count provision does not apply.
As such, Appellant was brought to trial within 200 days of his arrest on the instant charges,
well within the 270-day deadline for trial. Appellant’s seventh assignment of error is
overruled.
Prosecutorial Misconduct
{¶57} In the eighth assignment of error, Appellant claims the prosecutor’s
comments regarding Appellant’s “size” during closing arguments constituted
prosecutorial misconduct. Again, we disagree with Appellant.
{¶58} The prosecution enjoys wide latitude during opening and closing
statements. State v. Gilbert, 2005-Ohio-5536, ¶ 13 (10th Dist.). The test for prosecutorial
misconduct is, first, whether the conduct is improper, and second, whether the conduct
prejudicially affected the substantial rights of the accused. State v. McConnell, 2023-
Ohio-654, ¶ 34 (5th Dist.), citing Vill. of Sunbury v. Sullivan, 2012-Ohio-3699, ¶ 30 (5th
Dist.), citing State v. Lott, 51 Ohio St.3d 160 (1990). In reviewing allegations of
prosecutorial misconduct, an appellate court must consider the conduct complained of in
the context of the entire trial. Darden v. Wainwright, 477 U.S. 168 (1986).
{¶59} A trial is not unfair, if, in the context of the entire trial, it appears clear beyond
a reasonable doubt the jury would have found the defendant guilty even without the
improper conduct. State v. Treesh, 2001-Ohio-4; State v. White, 1998-Ohio-363; State v.
Saleh, 2009-Ohio-1542, ¶ 66 (10th Dist.). In other words, "a defendant’s substantial rights
cannot be prejudiced when the remaining evidence, standing alone, is so overwhelming
that it constitutes defendant's guilt, and the outcome of the case would have been the same regardless of evidence admitted erroneously." State v. Hicks, 2011-Ohio-3578,
¶ 30 (8th Dist. 2011), citing State v. Williams, 38 Ohio St.3d 346, 349-350 (1988).
{¶60} Here, the prosecutor’s comments were not objectionable in the first
instance. The prosecutor was simply noting the circumstances Preston faced during his
attack and his inability to defend himself. Such comments are not unusual when
describing a specific incident and squarely fit within the prosecutor’s wide latitude.
Further, the prosecutor’s comments did not prejudicially affect Appellant’s substantial
rights. The court instructed the jury that both opening statements and closing arguments
are not evidence and that the State must prove each element of the crime beyond a
reasonable doubt. State v. Fannon, 2018-Ohio-5242, ¶ 58 (4th Dist.), citing Gilbert, supra.
The evidence against Appellant in this case is significant and without question the
outcome of the case would have been the same regardless of the prosecutor’s comments
regarding Appellant’s “size” during closing arguments. See State v. McConnell, 2023-
Ohio-654 (5th Dist.). Appellant’s eighth assignment of error is overruled.
Admission of Swastika Ring
{¶61} In his ninth assignment of error, Appellant argues that the introduction of
the silver swastika ring found at the scene belonging to Soltero was overly prejudicial and
should not have been admitted. Again, however, Appellant did not object to this evidence
during trial and the Court must conduct a plain error analysis. We conclude the admission
of the ring does not rise to the level of plain error.
{¶62} Generally, 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." In reaching a decision involving admissibility under Evid.R. 403(A), a trial court must engage in a balancing test
to ascertain whether the probative value of the offered evidence outweighs its prejudicial
effect. State v. Perrine, 2024-Ohio-6082, ¶ 21 (5th Dist.); State v. Timms, 2022-Ohio-
3010, ¶ 50 (5th Dist.). Further, in this case, Appellant was charged with aiding and
abetting three other men in the commission of a felonious assault. Gowins noticed earlier
that day at BW3s that Soltero was banging his ring on the table, a ring that was quite
distinct to her because of the swastika emblem. That same ring was later recovered from
the Morrisons’ bathtub where a portion of the attack on Preston occurred. Reynolds
confirmed that the silver ring with the Swastika emblem belonged to Soltero. The ring’s
distinguishing feature was clearly more probative than it was prejudicial such that it was
properly admitted, and no plain error exists. Appellant’s ninth assignment of error is
Cumulative Error Doctrine
{¶63} In the tenth assignment of error, Appellant argues that the cumulative effect
of each of the claimed errors in this appeal deprived him of a fair trial. Under the
cumulative-error doctrine; “a conviction will be reversed where the cumulative effect of
errors in a trial deprives a defendant of the constitutional right to a fair trial even though
each of numerous instances of trial court error does not individually constitute cause for
reversal.” State v. Garner, 74 Ohio St.3d 49, 64 (1995), citing State v. DeMarco, 31 Ohio
St.3d 191 (1987), paragraph two of the syllabus. However, the cumulative error doctrine
does not apply if a defendant cannot demonstrate multiple instances of harmless error.
State v. Mammone, 2014-Ohio-1942, ¶ 148. {¶64} Here, Appellant’s arguments regarding trial errors are completely without
merit. A review of the trial transcripts in this case reveals that without question, Appellant
received a fair trial with an impartial judge and more than adequate representation by
counsel. The facts are the facts. Appellant drank a significant amount of alcohol on the
day in question, and he and his coworkers decided to go invade the Morrison home for
no reason and beat Preston Morrison to the point of significant injuries, including
reattachment of his ear. There is simply nothing to suggest that any cumulative effect of
errors in the trial deprived Appellant of his constitutional right to a fair trial. Appellant’s
tenth assignment of error is overruled.
CONCLUSION
{¶65} Appellant’s ten (10) assignments of error are overruled in their entirety, and
the judgment of the Tuscarawas County Court of Common Pleas is AFFIRMED in all
respects.
{¶66} Costs to Appellant.
By: Montgomery, J. Baldwin, P.J. and Gormley, J. concur.