[Cite as State v. Blackwell, 2025-Ohio-1451.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 114129 v. :
MALIK BLACKWELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 24, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-682217-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristin M. Karkutt, Assistant Prosecuting Attorney, for appellee.
Edward F. Borkowski, Jr., for appellant.
LISA B. FORBES, P.J.:
Malik Blackwell (“Blackwell”) appeals his convictions for aggravated
murder and having weapons while under disability (“HWWUD”). Blackwell also
challenges the court’s denial of his motion to sever and try separately certain counts.
For the following reasons, we affirm the trial court’s judgment. I. Factual Background and Procedural History
In connection with the January 23, 2023 homicide of Tim Nash
(“Nash”) and April 7, 2023 homicide of Anthony Norman (“Norman”), a grand jury
indicted Blackwell and codefendant Christopher Thompson (“Thompson”) on June
21, 2023.
Related to the killing of Nash, Blackwell was charged with Count 1,
aggravated murder, an unclassified felony, in violation of R.C. 2903.01(A), with one-
and three-year firearm specifications and a 54-month firearm specification; Count
2, murder, an unclassified felony, in violation of R.C. 2903.02(A), with one- and
three-year firearm specifications and a 54-month firearm specification, a notice-of-
prior-conviction (“NPC”), and repeat-violent-offender specification (“RVOS”);
Count 3, murder, an unclassified felony, in violation of 2903.02(B), with one- and
three-year firearm specifications and a 54-month firearm specification, a NPC, and
RVOS; Count 4 felonious assault, a felony of the second degree, in violation of
R.C. 2903.11(A)(1), with one- and three-year firearm specifications and a 54-month
firearm specification, a NPC, and RVOS; Count 5, felonious assault, a felony of the
second degree, in violation of R.C. 2903.11(A)(2), with one- and three-year firearm
specifications and a 54-month firearm specification, a NPC, and RVOS; and Count
6, HWWUD, a felony of the third degree, in violation of R.C. 2923.12(A)(2).
Related to the killing of Norman, Blackwell was charged with Count
7, aggravated murder, an unclassified felony, in violation of R.C. 2903.01(A), with
one- and three-year firearm specifications and a 54-month firearm specification, a NPC, and RVOS; Count 8, murder, an unclassified felony, in violation of R.C.
2903.02(A), with one- and three-year firearm specifications and a 54-month firearm
specification, a NPC, and RVOS; Count 9, murder, an unclassified felony, in
violation of 2903.02(B), with one- and three-year firearm specifications and a 54-
month firearm specification, a NPC, and RVOS; Count 10, felonious assault, a felony
of the second degree, in violation of R.C. 2903.11(A)(1), with one- and three-year
firearm specifications and a 54-month firearm specification, a NPC, and RVOS;
Count 11, felonious assault, a felony in the second degree, in violation of R.C.
2903.11(A)(2), with one- and three-year firearm specifications and a 54-month
firearm specification, a NPC, and RVOS; and Count 12, HWWUD, a felony of the
third degree, in violation of R.C. 2923.12(A)(2).
On June 3, 2024, the case proceeded to trial. Blackwell tried to the
bench the HWWUD charges and firearm specifications except for the one- and
three-year firearm specifications. All remaining charges were tried to a jury.
On June 14, 2024, the jury found Blackwell guilty on all counts and
specifications. The court found Blackwell guilty of the remaining counts and
specifications.
The court merged Counts 1 through 5 and Counts 7 through 11 for
purposes of sentencing. On Count 1, the court imposed a prison sentence of 54
months for the firearm specification consecutive to a life sentence, with parole
eligibility after 25 years. The court also imposed a 54-month firearm specification
from Count 2, to run consecutively to the 54-month firearm specification in Count 1. On Count 7, the court imposed a prison sentence of 54 months for the firearm
specification consecutive to a life sentence, with parole eligibility after 25 years. The
court imposed an additional 54-month firearm specification from Count 8, to run
consecutively to the 54-month firearm specification in Count 7. On Counts 6 and
12, the court imposed 36-month sentences, to be served concurrently to all other
sentences and each other. Blackwell’s aggregate prison sentence was life, with
parole eligibility after 68 years.
Blackwell appeals, raising the following assignments of error:
I. The trial court abused its discretion by denying Appellant’s request for relief from prejudicial joinder.
II. Appellant’s convictions are against the manifest weight of the evidence.
II. Trial Testimony
A. Tania Bryant
Tania Bryant (“Bryant”) stated that on January 23, 2023, Blackwell,
Nash, and Rashena Horne (“Horne”) helped her move out of her mother’s residence
at E. 61st Street. Bryant testified that Blackwell is her brother and that Nash was a
handyman from her neighborhood whom she had known for between five and six
years. She stated that in the months prior to January 23, 2023, she and Blackwell
had “a small issue; nothing major” in their relationship, which had been resolved.
At one point, Bryant and Horne left the house in a red Dodge Journey
to buy marijuana. Bryant testified that Blackwell and Nash were the only people at
the house when she and Horne left. Bryant estimated that they were gone for between six and ten minutes. When they returned, Nash was “laying on his
stomach” on the floor, and Bryant “didn’t know if he was alive or not.” Bryant called
9-1-1 and was instructed to roll Nash onto his back, which she did.
Bryant testified that, when police arrived, she consented to a search
of her phone, which could access footage recorded by a camera installed at the front
door of the E. 61st Street house. Bryant stated that she did not remove any bullet
casings from the house or did not remember doing so.
On cross-examination, Bryant agreed that Blackwell and Nash first
met on January 23, 2023. Bryant admitted that Nash was addicted to and regularly
used crack cocaine. Bryant admitted that Nash was high on the night that he was
killed. Bryant stated that Nash was “acting a little off,” and “just kind of a little
aggressive,” but that he and Blackwell were getting along at the beginning of their
meeting.
B. Rashena Horne
Horne testified that Bryant is “one of my best friends.” On the night
of January 23, 2023, Horne and Bryant left the E. 61st Street house to buy
marijuana. At that time, Blackwell and Nash were the only people at the house.
Before Horne and Bryant left, there had been no problems between them, Nash, or
Blackwell. After between 15 and 25 minutes, Horne and Bryant returned to the
house at E. 61st Street, finding Nash lying face down on the living room floor.
Blackwell was no longer present. Horne testified that Bryant called 9-1-1 and was
instructed to turn Nash over on his back, which she did. Horne testified that she did not see any bullet casings on the living room floor, did not take anything from the
living room, and did not see Bryant take anything from the living room.
D. Johnathan Sanchez
Johnathan Sanchez (“Sanchez”) testified that he is a patrolman
employed by the Cleveland Division of Police. On the night of January 23, 2023,
Sanchez responded to a radio dispatch regarding an unconscious male at the E. 61st
Street house. Sanchez testified that he spoke with Bryant, entered the house, and
took photographs of the scene. While investigating the house, Sanchez and his
partner located a shell casing in the living room. Sanchez reviewed doorbell-camera
footage that showed Nash and Blackwell walking into the E. 61st Street house.
Sanchez testified, “They looked like they were having some kind of back and forth
type of argument.” Sanchez stated that the doorbell-camera footage did not show
Blackwell leaving the house. Sanchez searched the house and did not find Blackwell.
On cross-examination, Sanchez stated that he “couldn’t really make
out what exactly was going on,” in audio from the camera footage, but that Nash and
Blackwell “were being a little louder than normal.”
E. Daniel Galita
Dr. Daniel Galita (“Galita”) testified that he is a forensic pathologist
at the Cuyahoga County Medical Examiner’s Office. Galita performed an autopsy on
Nash. Galita testified that Nash was 60 years old, weighed 142 pounds, and was 73
inches tall. Galita identified ten gunshot wounds while examining Nash’s body.
According to Galita, seven of the ten gunshot wounds could have been fatal on their own. The path of travel of four of the ten gunshot wounds indicated the bullets
traveled through Nash’s body from back to front. Four of the gunshot wounds that
traveled front to back did so with a downward trajectory.
Galita testified that, during the autopsy, fluid samples from Nash’s
body were submitted to the medical examiner’s toxicology department for analysis.
Galita reviewed the resulting toxicology report, which identified cocaine, cocaine
metabolites, and ethanol in Nash’s body. Galita testified that these substances
would have made Nash “agitated, very active.” Galita did not identify any other
injuries such as scrapes, abrasions, bruises, or contusions on Nash’s body that would
indicate a violent struggle preceded the shooting.
F. Orlando Velazquez
Orlando Velazquez (“Velazquez”) testified that he is a detective for the
City of Cleveland and that he responded to the E. 61st Street house on January 23,
2023, to investigate Nash’s homicide. Velazquez stated that he collected three bullet
casings from the house and took photos of the scene. Velazquez agreed on cross-
examination that some of these photos depicted a beer can lying on its side, a lamp
sitting upright on the ground, and some garbage lying on the ground.
G. Thomas Lascko
Thomas Lascko (“Lascko”) testified that he is a detective for the City
of Cleveland. Pursuant to a search warrant, Lascko took photos of the interior and
exterior of an apartment associated with Blackwell on Lake Shore Boulevard.
During this search, Cleveland homicide detectives seized several cell phones. H. Lisa Przepyszny
Lisa Przepyszny (“Przepyszny”) testified that she is a forensic scientist
with the Trace Evidence Department of the Cuyahoga County Medical Examiner’s
office. Przepyszny examined trace evidence regarding Nash’s murder, including
gunshot residue, nitrates, and powder grains around bullet defects in Nash’s body.
Przepyszny stated that, from this analysis, she determined Nash was shot from both
an intermediate range, meaning from between one and four to five feet, and from a
distant range, meaning more than five feet.
I. Vesna Piscitello
Vesna Piscitello (“Piscitello”) testified that she is a civilian analyst for
the City of Cleveland’s real-time crime center and that she assisted detectives in
locating videos from the E. 61st Street area related to Nash’s homicide. Piscitello
reviewed real-time crime center camera footage in search of an individual on foot
wearing a dark sweatshirt with white writing and distressed jeans. She stated that,
in a video recorded near E. 55th Street and E. 42nd Street on January 23, 2023, she
observed an individual that matched this description walking westbound between
approximately 11:24 p.m. and 11:43 p.m. This individual also appeared to be
wearing a red coat. Piscitello also located a red Dodge vehicle facing eastbound on
E. 55th Street. Bryant had informed Cleveland Police that she drove a vehicle matching this description when she left the E. 61st Street house to purchase
marijuana.
Piscitello also helped detectives locate video regarding Norman’s
homicide. This footage depicted a black Nissan traveling on various streets near
4913 Anson Avenue between 5:24 p.m. and 8:51 p.m. — before and after the
homicide — on April 7, 2023.
J. Marissa Esterline
Marissa Esterline (“Esterline”) testified that she is a forensic scientist
at the Cuyahoga County Regional Forensic Science Laboratory in the DNA
Department. Esterline analyzed items submitted to the lab regarding the Nash
homicide, including a bloodstain card, shell casings, and buccal swabs from Nash,
Horne, Bryant, and Blackwell. Esterline stated that she found someone else’s DNA
under Nash’s fingernails, but not enough for her to determine whose. Esterline also
found DNA from a source other than Nash on Nash’s right hand, but stated it did
not belong to Blackwell, Horne, or Bryant.
On cross-examination, Esterline admitted that different people shed
DNA at different rates and that it is possible to touch a surface without transmitting
enough DNA to detect.
K. Tayvis Bias
Tayvis Bias (“Bias”) testified that he lives on E. 49th Street, near the
Anson Avenue address at which Norman was killed. Bias testified that, around
8:30 p.m. on April 7, 2023, he observed a white SUV traveling in the wrong direction down Anson Avenue. The vehicle pulled into an empty lot two or three lots down
the street from Bias’s address. Minutes later, Bias heard an initial gunshot, followed
by a barrage of 14 or 15 shots.
On cross-examination, Bias admitted that he was not looking out his
windows when he heard the shots, so he could not identify who fired them.
L. Russell May
Russell May (“May”) testified that he is a patrol officer for the
Cleveland Division of Police and that he responded to Anson Avenue the night of
April 7, 2023, following a radio assignment that reported shots fired. After arriving
at the scene, Officer May and his partner discovered a white GMC Terrain idling with
its lights on. May observed Norman lying shot in a nearby driveway, exhibiting no
signs of life. Norman was surrounded by multiple shell casings and bags May
believed to contain drugs.
M. Katelyn Duplega
Katelyn Duplega (“Duplega”) testified that she is a crime-scene
detective for the Cleveland Division of Police and that she responded to Anson
Avenue on April 7, 2023. She testified that she took photographs and collected
evidence at the scene. This evidence included 11 .45-caliber bullet casings and one
9 mm bullet casing.
N. Shayna Gray
Shayna Gray (“Gray”) testified that she is a forensic scientist in the
Cuyahoga County Regional Forensic Science Laboratory’s Trace Evidence Department. Gray examined trace evidence regarding Norman’s murder, including
gunshot residue, nitrates, and powder grains around bullet defects in Norman’s
body. Gray stated that, from this analysis, she determined at least one bullet that
hit Norman was fired from an intermediate distance, meaning from one to five feet
away.
O. Robert Klomfas
Robert Klomfas (“Klomfas”) testified that he is a Special Deputy U.S.
Marshal. His duties in this role include tracking and arresting individuals wanted
in connection with violent crime. In February 2023, Klomfas was assigned to locate
Blackwell. On April 28, 2023, Klomfas visited a Woodland Avenue apartment,
where he did not locate Blackwell but did find and confiscate his cell phone. On
May 4, 2024, Klomfas helped arrest Blackwell, without incident, at an apartment on
Lake Shore Boulevard. Klomfas identified the defendant in the courtroom as the
person he helped arrest.
P. Carey Baucher
Carey Baucher (“Baucher”) testified that she is a forensic scientist that
analyzes DNA for the Cuyahoga County Regional Forensic Science Laboratory.
Baucher analyzed items submitted to the lab regarding the Norman homicide,
including a bloodstain card, shell casings, and buccal swabs from Norman and
Thompson. Baucher testified that her DNA analysis of evidence found on or around
Norman’s body presented no statistical support for a match with Blackwell or
Thompson. Q. Michael Asbury
Michael Asbury (“Asbury”) testified that he is a detective for the
Rocky River Police Department and that he has received extensive training
regarding cell-phone records and location analysis. Asbury analyzed location data
for three cell phones associated with Norman, Blackwell, and Thompson. The
phones associated with Thompson and Blackwell called each other multiple times
throughout the day of April 7, 2023. Some of these calls lasted for several minutes.
Asbury testified that these phones traveled together beginning at 6:48 p.m. that
night. At 7:10 p.m., Blackwell’s phone received a call from Norman’s, which lasted
for 135 seconds. Blackwell’s phone called Norman’s again at 8:0o p.m. and again at
8:24 p.m.
Blackwell’s and Thompson’s phones traveled to the crime scene
together, where they were located along with Norman’s device at 8:32 p.m. All three
phones then moved away from the crime scene together. Norman’s device stopped
at a location north of the crime scene at 8:36 p.m. Blackwell’s and Thompson’s
devices then exited Cuyahoga County to the east, before returning to Cuyahoga
County and staying together until the early morning of April 8, 2023. The phones
then parted ways but contacted one another throughout the morning.
R. James Kooser
James Kooser (“Kooser”) testified that he is a forensic scientist
employed by Cuyahoga County Regional Forensic Science Laboratory, specializing
in firearms and tool marks. Kooser testified that each firearm, when fired, leaves unique, microscopic impressions on spent shell casings. Kooser analyzed these
impressions on the .45-caliber shell casings collected from both crime scenes in this
case. Based on this analysis, Kooser determined the same .45-caliber firearm was
used in both homicides.
S. Paul Jackson
Paul Jackson (“Jackson”) testified that he rents out his personal
vehicle — a 2020 black Nissan Altima — to others through Turo, a car-sharing app.
He testified that he rented this vehicle to Reneshia Jones (“Jones”) — Norman’s
sister and Blackwell’s cousin — in April 2023. The vehicle was returned to him the
morning of April 8, 2023.
T. Darnasja Reid
Darnasja Reid (“Reid”) testified that she spoke with Thompson by
phone “in the middle of the night,” for “about an hour or two” on April 7, 2023. Reid
was uncertain as to when the call occurred; she agreed it could have been at
1:00 a.m., 2:00 a.m., or 3:00 a.m. She did not remember hearing another man on
the phone and did not recognize Blackwell in the courtroom.
U. Christopher Thompson
Thompson testified that, on the evening of April 7, 2023, Blackwell
picked him up from a residence. In the car’s passenger seat was a man Thompson
had never met, who introduced himself as “Cdot.” Thompson stated he met with
Blackwell so they could sell drugs in Ashtabula. Thompson testified that he had never been to the Anson Avenue lot prior to April 7, 2023. Thompson said Blackwell
drove to Anson Avenue to pick up drugs.
After arriving at Anson Avenue, Blackwell and Cdot exited the vehicle.
Thompson claimed to have remained in the vehicle, purportedly scrolling
Instagram. Thompson testified, “While I’m scrolling, I hear a lot of gunshots,” after
which, “I instantly hit the floor of the car.”
When the gunshots stopped, Blackwell and Cdot returned to the
vehicle. Thompson testified that, while reentering the vehicle, Blackwell put a
handgun in the car door. Thompson claimed not to have seen Blackwell exit the car
with the gun. Cdot was holding on his lap a gun smaller than the one Blackwell had
returned to the car door.
Thompson stated that he, Blackwell, and Cdot then drove to
Ashtabula to sell drugs, which they did between midnight and 3:00 a.m. Thompson
stated that, while driving to Ashtabula, he made a phone call to a female friend
named “Nae.” This call lasted for “about 20 minutes.” Thompson was not aware of
Blackwell making any calls while they were in the car together. Thompson testified
that Blackwell and Cdot dropped him off later that night.
Thompson stated that, on the morning of April 8, 2023, he and
Blackwell spoke by phone “about girls, stuff that we seen on Instagram. Nothing,
really.”
Thompson admitted on cross-examination that his testimony
differed from his initial statements to police, in which he claimed not to have been present on Anson Avenue the night of April 7, 2023. Thompson also admitted that
he originally told police that he did not know anything about Norman’s death.
Thompson acknowledged that he did not change his story until a week prior to
Blackwell’s trial. At that time, Thompson was facing charges including aggravated
murder. After Thompson agreed to testify for the State, these charges were reduced
to involuntary manslaughter.
Thompson denied “know[ing] anything” about Cdot and admitted
that, despite hearing gunshots and dropping to the car floor, he did not call 9-1-1 on
April 7, 2023. Thompson stated that he had one drug contact in Ashtabula, named
Jim, but that he did not know his full name, phone number, or with whom he
associates in selling drugs.
V. Stephen Loomis
Stephen Loomis (“Loomis”) testified that he is a detective for the
Cleveland Police and that he was the lead investigator of the Nash homicide.
Blackwell called Loomis on February 3, 2023; during this call, he denied knowing of
Nash’s death. Loomis interviewed Blackwell after his arrest. At that point, Blackwell
admitted he was aware that Nash had been killed.
W. Dr. Elizabeth Mooney
Dr. Elizabeth Mooney (“Mooney”) testified that she is a forensic
pathologist for the Cuyahoga County Medical Examiner’s office. She performed an
autopsy of Norman. The autopsy revealed Norman suffered 14 gunshot wounds,
most of which traveled from front to back and left to right through his body. X. Shane Bauhof
Shane Bauhof (“Bauhof”) is a homicide detective for the Cleveland
Division of Police. Bauhof was the lead investigator of the Norman homicide. On
April 7, 2023, he responded to a report of a male victim with multiple gunshot
wounds on Anson Avenue. Bauhof spoke with a nearby resident, who shared with
police security-camera footage that depicted Norman’s white GMC SUV traveling
the wrong direction on Anson Avenue at 8:31 p.m. The footage also captured the
black Nissan Altima — later associated with Blackwell — as it arrived on Anson
Avenue. During his investigation, Bauhof also learned of a video taken by another
nearby homeowner and uploaded to the internet that captured audio of gunfire,
specifically one shot followed by a volley. Bauhof believed the sound of the gunfire
in this video was consistent with the number of bullets and casings found where
Norman was shot.
On April 11, 2023, Bauhof received a report from the National
Integrated Ballistic Information Network (“NIBIN”) — a database of evidence
related to firearm crimes — stating that shell casings collected at Anson Avenue
matched casings collected from the scene of Nash’s homicide. At this time, Bauhof
and Detective Loomis agreed Blackwell was a person of interest in both Nash’s and
Norman’s homicides.
Because Norman’s cell phone was not recovered from the crime
scene, Bauhof requested and received Norman’s phone records from Verizon. These records showed that the last phone number Norman’s phone contacted was
associated with Blackwell.
Bauhof also learned that the house on the Anson Avenue lot, which
was vacant at the time of the homicide, had previously been rented by Jones,
Blackwell’s cousin.
Bauhof reviewed a partial extraction of Blackwell’s cell phone after
U.S. Marshalls confiscated it on April 28, 2023. Bauhof discovered messages
between Blackwell and Jones in which Jones asked Blackwell to “give the car back.”
Bauhof also saw a picture related to a Turo account. This exchange prompted
Bauhof to speak to Jackson, who rents his vehicle to others through Turo. Jackson
told Bauhof he had rented a black Nissan Altima to Jones, which was returned to
him on April 8, 2023.
Bauhof helped interview Blackwell after he was arrested. Bauhof
stated that Blackwell initially denied being present when Norman was shot.
On cross-examination, Bauhof admitted that he did not seek
Instagram records for Cdot because he did not know Cdot’s given name. Bauhof also
admitted that he did not swab the Nissan for DNA. Bauhof stated this was not done
because more than 30 days passed before Cleveland police connected the Nissan to
Norman’s death, during which time the car was cleaned and used by other people.
Z. Eshana Shaw
Eshana Shaw (“Shaw”) testified that she is in a relationship with
Blackwell, who stayed with her at an apartment on Woodland Avenue. She stated that, on April 7, 2023, Blackwell woke up in the apartment. He left “[m]aybe around
4:30” and returned to the apartment with Thompson and Cdot, where they
remained until “[m]aybe 9, 8:00.” Blackwell returned by himself later that night.
On cross-examination, Shaw admitted she lied to U.S. Marshals who
were looking for Blackwell in April when she claimed she had not seen him in nearly
a month.
AA. Malik Blackwell
Blackwell testified in his own defense that on January 23, 2023, he
helped Bryant move. Blackwell stated Bryant had previously accused his girlfriend
of stealing things, but that Bryant was “leaving the situation alone.” While helping
Bryant move, Blackwell met Nash, whom Blackwell understood to be a handyman.
Per Blackwell, Nash made trips to the bathroom to smoke what Blackwell believed,
based on smell, to be crack cocaine. Blackwell recognized this smell from growing
up around drug users and sellers in the projects. Blackwell testified that Nash was
acting “weird, just acting aggressive” and that, at some point that day, Nash got on
a bus going the wrong direction.
Blackwell testified that Bryant left the E. 61st Street house, at which
point Nash “start[ed] inching up, inching up to me, kept inching up to me.” Per
Blackwell, Nash then stood, said, “Family over everything,” and “start[ed]
attempting to choke me.” Blackwell said that Nash put his hands on Blackwell’s neck
and applied pressure. At this time, Blackwell was wearing a hoodie “with the hood
up” and testified that, as a result, he did not believe Nash ever actually touched his skin. Blackwell said that Nash was four inches taller than he is and felt strong,
potentially from drug use and his job as a manual laborer. In response, Blackwell
“was terrified. It was out of the blue. I didn’t know what was going on.”
Blackwell testified that, at that time, he had on his person a Glock 21,
.45-caliber handgun with a binary trigger. Blackwell “ripped [Nash’s] hands away
from my neck” and “pushed him over the corner of the couch.” Blackwell testified
that Nash “just jumped up” and said, “I’m about to kill you, b----h.” Afterward “he
started just coming.” Blackwell stated that he fired two times, after which Nash
continued advancing. Blackwell then fired at Nash until he “went down.”
Blackwell testified that he left the house without calling 9-1-1 because
he was scared and did not think anyone would believe his version of events.
Blackwell admitted that he changed his story when interviewed by Loomis because
he was scared.
Regarding Norman’s death, Blackwell testified that, on April 7, 2023,
he drove Cdot and Christopher to Shaw’s house in a black Nissan that he rented
using Turo. Blackwell testified that, later, they left to meet Norman at Anson
Avenue; Norman needed Blackwell’s blender to manufacture drugs. Blackwell
testified that he and Norman were “like brothers.”
Blackwell drove the Nissan to the Anson Avenue lot. Blackwell
entered the house to retrieve the blender, before using the bathroom. Blackwell
testified that, while using the bathroom, he heard music from a car pulling up to the
lot. Blackwell also stated that he had left his gun in the Nissan when he entered the house and agreed it is common for him to share firearms with associates. Next,
Blackwell heard gunfire.
Exiting the house, Blackwell saw Norman “curled up on the ground
in the back of the Nissan.” He ran to Norman, flipped him over, smacked his face,
and called his name. Blackwell testified that Thompson and Cdot were no longer
present. Per Blackwell, Thompson had left his phone in the Nissan. Blackwell stated
that they normally share phones. Blackwell testified that he, again, did not call 9-1-1
because he was terrified.
Eventually, Blackwell drove to Ashtabula to sell drugs. He denied
dealing drugs with Thompson to someone named Jim.
Regarding Nash’s death, Blackwell admitted he “know[s] how to
fight” but stated he could not fight Nash because of “a damaged shoulder.” Blackwell
also admitted that he lied to Cleveland Police detectives regarding Norman’s death
after his arrest because he was scared that Thompson would harm him.
III. Law and Analysis
A. First Assignment of Error — Joinder
In his first assignment of error, Blackwell asserts that the trial court
erred in denying his motion to sever and try separately Counts 1 through 6 (related
to the Nash shooting) from Counts 7 through 12 (related to the Norman shooting).
We disagree.
The law favors joinder of multiple offenses in a single trial if the
offenses charged “are of the same or similar character.” State v. Torres, 66 Ohio St.2d 340, 343 (1981); Crim.R. 13; Crim.R. 8(A). Joinder is favored because it offers
the benefits of “conserving time and expense, diminishing the inconvenience of
witnesses and minimizing the possibility of incongruous results in successive trials
before different juries.” Id. Crim.R. 13 allows two different indictments to be tried
together “if the offenses . . . could have been joined in a single indictment or
information.” Crim.R. 8(A) allows offenses to be joined in a single indictment where
they “are of the same or similar character, or are based on the same act or
transaction, or are based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan or are part of a course of criminal
conduct.”
Crim.R. 14 allows a trial court to sever multiple offenses — try them
separately — where joinder would prejudice the defendant or the State. A defendant
moving to sever has the burden of providing the court sufficient information “that it
can weigh the considerations favoring joinder against the defendant's right to a fair
trial.” Torres at 343. An appellant “claiming error in the trial court’s refusal to allow
separate trials of multiple charges has the burden of affirmatively showing that his
rights were prejudiced.” Id.
The Ohio Supreme Court has recognized that the State may rebut a
defendant’s claim of prejudicial joinder by showing either 1) the evidence in the
joined cases could be introduced in a separate trial as “other acts” evidence under
Evid.R. 404(B); or (2) by showing that the evidence as to each crime is simple and
direct. State v. Lott, 51 Ohio St.3d 160, 163. See also State v. T.R., 2024-Ohio-3010, ¶ 49 (8th Dist.). Evid.R. 404(B) articulates purposes for which a defendant’s prior
bad acts may be introduced at trial.
We review the trial court’s decision not to sever the indictments for
an abuse of discretion. Torres, 66 Ohio St.2d at 343. An abuse of discretion occurs
when a court exercises “its judgment, in an unwarranted way, in regard to a matter
over which it has discretionary authority.” Abdullah v. Johnson, 2021-Ohio-3304,
¶ 35.
Blackwell argues the court’s decision to try all counts together
prejudiced his right to a fair trial. Because Blackwell and Nash were the only two
people in the E. 61st Street house during the shooting, Blackwell’s only method of
establishing that he killed Nash in self-defense was to testify. By testifying about
Nash’s death, Blackwell also waived his Fifth Amendment right to remain silent
regarding the Norman shooting. Had the shootings been tried separately, Blackwell
could have avoided testifying and being cross-examined about Norman’s death. Per
Blackwell, this would have improved his likelihood of success at trial.
A defendant’s desire to testify about one homicide but remain silent
about another does not establish that the trial court’s joinder of all counts prejudiced
his right to a fair trial. The Ohio Supreme Court has stated, “The mere possibility
that the defendant might have a better choice of trial tactics if the counts are
separated, or the mere possibility that he might desire to testify on one count and
not on the other, is insubstantial and speculative; it is not sufficient to show
prejudice.” Torres at 342 (finding that the trial court did not abuse its discretion denying defendant’s motion to sever, where entrapment defense to some counts
required defendant to testify about other counts on which he preferred to remain
silent). That Blackwell may not have testified regarding the Norman shooting had
it been tried separately from the Nash shooting is insufficient to establish that
joining all counts was prejudicial.
We also find that the evidence presented in this case was simple and
direct. Blackwell argues that the “risk of jury confusion was high” because the State’s
case included “testimony of 22 witness over the course of a more than 7 day trial that
included hundreds of photos and many hours of multimedia evidence.” We agree
that Blackwell’s trial included a lengthy presentation of evidence; nonetheless, the
evidence was simple and direct. The State presented its case in a way unlikely to
confuse the jury. With limited exception, witnesses testified in chronological order
— first about Nash’s homicide, then about Norman’s. Further, as Blackwell himself
asserts, “besides the video analyst and the firearm examiner, there was no overlap
of witnesses or evidence for the two shootings.” Because the State’s witnesses
relating to Nash’s homicide were largely distinct from the witnesses of Norman’s
homicide, it was easy for the jury to understand who was discussing which shooting.
Even the two overlapping State’s witnesses testified and presented
evidence in a way that made it easy for the jury to discern one homicide from the
other. Video-analyst Piscitello first presented footage from the Nash homicide that
tracked the defendant walking through a neighborhood. Piscitello then presented
footage regarding the Norman homicide, in which she tracked the movements of a black Nissan Altima and a white GMC SUV through different neighborhoods. These
videos captured different subjects in different places at different times.
Firearm-examiner Kooser’s presentation of evidence was not
confusing, either. The key fact Kooser’s testimony established is that the same .45-
caliber firearm was used in both homicides. On this point, there was nothing for the
jury to segregate between the shootings. The State’s evidence was simple and direct.
Lastly, Blackwell argues the court should have tried each shooting
separately because the fact that he killed Nash was inadmissible “propensity”
evidence that he also killed Norman. Evid.R. 404(B)(1) prohibits “evidence of any
other crime, wrong or act” from being used “to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with that
character.” Essentially, Blackwell argues the jury was likely to make an unfair
inference that he killed Norman after learning that he killed Nash, which
Evid.R. 404(B)(1) prohibits, and separate trials would have avoided.
However, we find the fact that Blackwell killed Nash was introduced
for a permissible purpose regarding Norman’s murder. Evid.R. 404(B)(2) allows
evidence of prior bad acts to be introduced to prove identity. Blackwell’s defense at
trial was that someone else shot Norman. Demonstrating that the .45-caliber gun
that shot Norman was the same gun Blackwell used to shoot Nash helped the
prosecution establish the identity of Norman’s shooter. Nash’s killing showed that
Blackwell had previously used the gun that killed Norman, making it more probable
that he was Norman’s killer. Evidence that Blackwell killed Nash was permissible identity evidence under Evid.R. 404(B)(2) regarding Norman’s death, meaning
there was no need for separate trials.
Blackwell has not established joinder of all counts was prejudicial.
Further, the State has shown its presentation of the evidence was direct and straight
forward. Evidence that Blackwell killed Nash using his .45-caliber gun was also
admissible identity evidence under Evid.R. 404(B)(2) in the State’s case against
Blackwell for Norman’s murder. The trial court did not abuse its discretion in
denying Blackwell’s motion to sever certain counts against him. Appellant’s first
assignment of error is overruled.
B. Second Assignment of Error — Manifest Weight of the Evidence
In his second assignment of error, Blackwell argues the manifest
weight of the evidence did not support his convictions for aggravated murder. To
convict a defendant for aggravated murder, the State must prove the defendant
“purposely, and with prior calculation and design, cause[d] the death of
another . . . .” R.C. 2903.01(A).
A manifest-weight-of-the-evidence challenge attacks the credibility of
the evidence presented and questions whether the State met its burden of
persuasion. State v. Whitsett, 2014-Ohio-4933, ¶ 26 (8th Dist.). Weight of the
evidence “addresses the evidence’s effect of inducing belief,” i.e., “whose evidence is
more persuasive— the state’s or the defendant’s?” State v. Wilson, 2007-Ohio-
2202, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380, 386-387 (1997). When
considering an appellant’s claim that a conviction is against the manifest weight of the evidence, the appellate court functions as a “thirteenth juror” and may disagree
“with the factfinder’s resolution of . . . conflicting testimony.” Thompkins at 387,
citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). Furthermore, in State v. Jordan,
2023-Ohio-3800, ¶ 17, quoting Thompkins at 387, the Ohio Supreme Court held
that “[s]itting as the ‘thirteenth juror,’ the court of appeals considers whether the
evidence should be believed and may overturn a verdict if it disagrees with the trier
of fact’s conclusion.”
In a manifest-weight challenge, the appellate court examines the
entire record, weighs the evidence and all reasonable inferences that may be drawn
therefrom, considers the witnesses’ credibility, and determines whether, in
resolving conflicts in the evidence, the trier of fact ‘“clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d
172, 175 (1st Dist. 1983). Reversal on manifest-weight grounds is reserved for the
‘“exceptional case in which the evidence weighs heavily against the conviction.”’ Id.,
quoting id.
Regarding the Nash shooting, Blackwell does not contest that the
State proved the elements of aggravated murder under R.C. 2903.01(A); instead, he
argues that the prosecution did not disprove his claim of self-defense. The State may
disprove a defendant’s self-defense claim by showing that the defendant “(1) was at
fault in creating the situation giving rise to the affray; (2) did not have reasonable
grounds to believe or an honest belief that he or she was in imminent danger of bodily harm; or (3) violated a duty to retreat or avoid danger.” State v. Martin,
2024-Ohio-2172, ¶ 13 (8th Dist.).
Initially, we note it is undisputed that Blackwell had no duty to retreat
or avoid danger. R.C. 2901.09(B) provides that a person has no duty to retreat
before using force in self-defense in a place where they have a lawful right to be. The
State presented no evidence that Blackwell was unlawfully present at his mother’s
house on E. 61st Street. Therefore, we find that he had no duty to retreat.
Blackwell argues that the “the uncontroverted testimony during the
trial established that Nash created the situation that led to him being shot.” While
it is true that Blackwell was the only eyewitness of the shooting able to testify about
the events that immediately preceded Nash’s death, the jury was free to find his
testimony not credible. Ohio courts consistently hold that a jury is “in the best
position to assess the credibility of the witnesses who testified at trial” and is free to
believe all, part or none of each witnesses’ testimony. State v. Jones, 2020-Ohio-
3367, ¶ 85 (8th Dist.). “The jury was in the best position to view the witnesses and
observe their demeanor, gestures, and voice inflections that are critical observations
in determining the credibility of a witness and his or her testimony.” State v.
Sheline, 2019-Ohio-528, ¶ 100 (8th Dist.). The jury could reasonably doubt
Blackwell’s truthfulness regarding Nash’s death because he initially denied knowing
about it during a February phone call with Detective Loomis. Blackwell later
admitted he had lied to Loomis. That Blackwell’s testimony was “uncontroverted”
by another eyewitness’s does not require the jury to believe his version of events. In addition, other testimony and evidence gave the jury reason to
doubt that Nash created the situation that led to his death. At trial, Blackwell
claimed that Nash attempted to choke him and that, in response, he “ripped [Nash’s]
hands away from my neck, and . . . pushed him over the corner of the couch. . . .”
However, forensic-scientist Esterline testified that she could not identify Blackwell’s
DNA on Nash’s hands, fingernails, neck, or clothing. From this evidence, the jury
could reasonably discredit Blackwell’s testimony that Nash “just start attempting to
choke [him],” initiating a violent altercation. And if the jury disbelieved Blackwell’s
testimony that Nash attempted to choke him, the jury could also conclude that
Blackwell had no reasonable grounds to believe that his life was in danger, a required
element of self-defense. Dr. Galita’s testimony that four of Nash’s ten wounds
indicated he was shot from behind also supports the jury’s finding that Blackwell did
not shoot Nash in self-defense.
Regarding the Norman shooting, Blackwell does not assert the State
failed to prove that someone purposely, and with prior calculation and design,
caused Norman’s death, as R.C. 2903.01(A) requires. Instead, Blackwell argues the
manifest weight of the evidence does not support the conclusion that he was
Norman’s killer. However, the record included evidence from which the jury could
reasonably conclude otherwise. Blackwell does not dispute that he was at the Anson
Avenue address at 8:36 p.m. — where and when Norman was shot. Again, it was the
jury’s prerogative to find his testimony — that he was using the bathroom at the time
of the shooting — not credible. The jury would have been justified in doing so because Blackwell initially lied to investigators that he was not present when
Norman was killed. Blackwell admitted at trial these statements were untrue.
Further, firearm-analyst Kooser testified that the .45-caliber gun used
to kill Norman was the same gun with which Blackwell previously shot Nash. The
fact that Blackwell had previously used the gun that killed Norman allowed the jury
to reasonably identify Blackwell — rather than Cdot, Thompson, or an unknown
third person — as the shooter. Thompson’s testimony also supports that conclusion.
Thompson testified that he heard gunshots after Blackwell exited the Nissan Altima;
Blackwell then returned to the car and placed a gun in the driver’s-side door. From
this evidence, a jury could reasonably determine that Blackwell shot Norman.
Based on our review of the record, we find the evidence does not
weigh heavily against a conviction such that the jury clearly lost its way and created
a manifest miscarriage of justice by finding Blackwell guilty on all counts.
Appellant’s second 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
convictions 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.
LISA B. FORBES, PRESIDING JUDGE
MARY J. BOYLE, J., and DEENA R. CALABRESE, J., CONCUR